Commission staff working document accompanying the proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection - Summary of the impact assessment {COM(2009) 554} {SEC(2009) 1376}
Date: 2009-10-21
Institutions: European Commission
Subjects: EU policy, admission of aliens, approximation of laws, impact study, refugee, right of asylum, rights of aliens

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.10.2009 
SEC(2009) 1377 final 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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

Summary of the Impact Assessment 

{COM(2009) 554} 
{SEC(2009) 1376} 

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1. 

PROBLEM DEFINITION 

Despite  the  measures  adopted  in  the  first  phase  of  the  Common  European  Asylum  System 
(CEAS), asylum seekers still have very different prospects of finding international protection 
depending on where in the EU their applications are examined. The majority of Green Paper 
respondents pointed to serious deficiencies in Council Directive 2005/85/EC of 1 December 
2005  ('the  Asylum  Procedures  Directive'  or  'the  directive')  capable  to  open  protection  gaps 
and lead to a risk of refoulement.  

Most  of  the  directive's  provisions  are  optional  and  have  allowed  Member  States  (MSs)  to 
continue  with  their  existing  procedures.  The  result  is  inconsistencies  across  the  EU  and 
uncertainty for applicants which make it difficult to speak of a common asylum system. As 
attested by asylum statistics, the ambiguities and possibilities for derogations have led to wide 
divergences  in  the  application  of  the  Qualification  Directive  (QD).  To  cite  only  a  few 
examples: 

•  Percentages of total positive decisions in the different MSs in 2007 varied from 52.2% in 

Luxemburg to 27.5% in Germany, to 0.8% in Greece; 

•  Recognition rates in different MSs for applicants from the same nationality for the period 
2005-2007  varied  significantly:  for  instance,  for  asylum  seekers  from  Russia  (mostly  of 
Chechen background), from 63% in Austria to 0% in Slovakia. 

The impact assessment focuses on the issues which have proved to be the most controversial 
and  are  likely  to  raise  different  reaction  between  the  MSs,  and  require  additional  financial 
investments, namely: 

•  Obstacles to requesting international protection; 

•  Room for administrative error; 

•  Divergent procedural notions; 

•  Concerns about efficiency and quality of decision-making. 

2. 

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

The Tampere conclusions provide that the CEAS should include, in the short term, common 
standards for fair and efficient asylum procedures and, in the longer term, Community rules 
leading to a common asylum procedure in the EC. The Hague Programme set as an aim of 
the second-phase CEAS the establishment of a common asylum procedure in the Union.  

The development of a CEAS became an EU priority due to a range of factors. In particular, 
some MSs receive much higher numbers of applicants for international protection than others. 
Almost  1/5th  of  applications  are  multiple  claims.  Asylum  seekers  evidently  find  certain  MS 
more  "attractive"  destinations  than  others  e.g.  in  2006,  Belgium,  Germany,  France,  Sweden 
and  the  United  Kingdom  received  more  than  3000  multiple  applications  while  Cyprus  and 
Portugal received under 100. Some persons in need of protection are not being granted it. 

A  reason  for  these  disparities  is  the  uneven  application  of  procedures  for  examining 
applications. This has led to a continuation of asylum "lottery" and, consequently, secondary 
movements between the MSs, undermining the justification of the Dublin Regulation which is 
based on the assumption that applicants have access to protection under equivalent conditions 
in all MSs. The directive goes to the heart of the CEAS, as it connects and backs up all the 

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asylum  instruments,  and  any  deficiencies  in  it  negatively  affect  the  application  of  the  other 
Community rules. 

EU action is therefore necessary to attain higher and more harmonised standards, based on 
the existing minimum standards on asylum procedures. 

3. 

POLICY OBJECTIVES 

General objective: 

To achieve higher standards of protection across the EU for persons in need of international 
protection. 

Specific objectives:  

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

To ensure that asylum procedures are accessible; 

To improve fairness of procedures; 

To ensure consistent application of common procedural devices; 

To improve the quality and efficiency of procedures; 

To improve access to effective remedy; 

To ensure consistency between different EU asylum instruments. 

4. 

POLICY OPTIONS 

The diverse nature of the problems makes it impossible to identify one single all-embracing 
policy option. Therefore, the Impact Assessment proposes separate policy options for each of 
the policy objectives. Two or three legislative sub-options are then described for each of these 
policy  options.  In  the  area  of  procedural  asylum  legislation  only  legislative  measures  may 
ensure systemic and durable impacts on the quality and efficiency of examination procedures. 
The  sub-options  are  almost  all  cumulative.  They  are  accompanied  by  envisaged  practical 
cooperation activities. To determine the elements of the preferred option, the IA assesses all 
the  sub-options  against  the  baseline  scenario  in  terms  of  effectiveness,  efficiency  and 
coherence, but also in terms of their proportionality and their social impacts and impacts on 
fundamental rights. 

Given  the  level  of  complexity  of  the  proposed  options,  this  summary  is  limited  to  a 
description of the main elements composing the preferred option. 

i. Status quo 

The  existing  legal  framework  would  remain  unchanged.  Commission  monitoring  would 
contribute  to  better  compliance  with  the  current  standards.  ECJ  and  ECtHR  rulings  and 
findings which, for example, stress the principle of a rigorous scrutiny of applications, might 
reduce  arbitrariness  in  the  application  of  the directive.  However,  these  developments  would 
be of ad hoc and not of systemic nature. Disparate asylum procedures as allowed for by the 
directive would continue though possibly lessened by practical cooperation particularly if the 
European  Asylum  Support  Office  were  to  develop  training  programmes  or  provide  specific 
specialist support when needed through a pool of experts. 

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ii. Ensuring access to asylum procedures 

–  provide  for  a  competent  authority  responsible  for  registration  of  applications  for 

international protection; 

–  specify  that  the  police,  border  guards  and  other  authorities  likely  to  be  addressed  by 
someone  who  wishes  to  make  an  application  for  international  protection  should  be 
provided with clear instructions on how to deal with these cases, including the obligation 
to forward the application to the competent authority; 

–  introduce the obligation to make information on the procedures for lodging an application, 
counselling  and  interpretation  services  accessible  to  de  facto  asylum  seekers  who  are 
present in the entry points; 

–  provide for the obligation of MSs to register applications within a reasonable time limit; 

–  revise  the  inadmissibility  grounds  and  provide  for  arrangements  enabling  an  applicant  to 
make known her/his views as regards the grounds and information on which the authorities 
intend to base their decision; 

–  delete the European safe third country notion. 

iii. Improving procedural guarantees 

–  remove  derogations  from  the  basic  principles  and  guarantees  and  provide  for  free  legal 
assistance to unaccompanied minors as well as other asylum applicants who lack financial 
resources in procedures at first instance; 

–  make  sure  that  extradition  treaties  are  not  used  to  return  an  asylum  applicant  to  her/his 

country of origin; 

–  entitle  an  asylum  applicant  to  access  and  comment  on  the  report  of  a  personal  interview 

before a decision on her/his application is taken; 

–  provide that communication during the personal interview should take place in a language 
in  which  the  applicant  is  able  to  communicate  and  present  the  elements  of  her/his 
application properly. 

iv. Improving equal access to protection for persons with special needs 

–  introduce the notion of applicants with special needs;  

–  provide for the right of a child to lodge an application for international protection, delete 
the current possibility to refrain from appointing a representative where an unaccompanied 
minor is 16 years old or older;  

–  define the qualifications of the guardian and specify the right of the guardian to apply for 

asylum on behalf of an unaccompanied minor;  

–  require MSs to inform each adult in private of her/his right to make a separate application 
for international protection and to give dependent adults the opportunity of presenting their 
individual circumstances to the personnel of the determining authority;  

–  define the role of and procedures for obtaining medico-legal reports to document signs of 
torture, provide survivors of torture with necessary time to prepare for a personal interview 
on  the  substance  of  the  application,  and  introduce  gender  and  age  sensitive  requirements 
for interviewing applicants;  

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–  clarify that gender considerations and international obligations as regards the rights of the 
child should be duly taken into account when applying the directive and exempt survivors 
of  torture,  persons  with  mental  disabilities  and  unaccompanied  minors  from  accelerated 
procedures which are based on the notion of manifestly unfounded applications;  

–  exempt unaccompanied minors from border and safe third country procedures;  

–  provide  for  including  gender,  trauma  and  age  related  issues  in  training  programmes  for 

asylum personnel.  

v. 

Approximating accelerated procedures 

–  introduce a limited and exhaustive list of grounds for accelerated procedures, based on the 
notion of manifestly unfounded applications, while preserving MS' discretion to prioritise 
other claims;  

–  require  MS  to  conduct  personal  interviews,  and  specify  that  the  determining  authority 
should be given the necessary time to conduct a rigorous assessment of the application.  

vi. 

Clarifying the notion of safe country of origin 

–  delete  the  notion  of  a  minimum  common  list  of  safe  countries  of  origin  and  derogations 
from  the  material  requirements  for  the  designation  of  third  countries  as  safe  countries  of 
origin at national level; 

–  provide for a regular follow up review of the situation in third countries designated as safe.  

vii. 

Improving access to effective remedy 

–  clarify  that  the  scope  of  review  should  include  both  facts  and  points  of  law  at  least  in 
procedures before a first level court or tribunal and be based on ex nunc assessment of the 
protection needs;  

–  provide for automatic suspensive effect of appeals against first instance decisions subject 
to  limited  exceptions.  In  the  latter  case,  interim  measures  could  be  granted  by  a  court 
(tribunal) on a case by case basis;  

–  provide  for  an  unrestricted  right  of  courts  (tribunals)  to  receive  the  materials  used  as  a 

basis for a decision of the determining authority;  

–  provide for reasonable time limits for lodging appeals against first instance decisions.  

viii. 

Improving consistency between different EU asylum instruments  

–  set the key elements of a single asylum procedure in the directive; 

–  expand the directive's provisions on the withdrawal of refuge status to cases of withdrawal 

of subsidiary protection;  

–  underline  that  the  directive  covers  persons  who  are  the  subject  to  the  Dublin  procedures 
and  that  the  notion  of  implicit  withdrawal  of  the  application  does  not  apply  to  persons 
transferred to the responsible MS pursuant to the Dublin Regulation. 

ix. 

Increasing the efficiency and quality of decision making 

–  reduce the current derogations from the principle of a single determining authority; 

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–  provide  that  a  determining  authority  should  dispose  sufficient  numbers  of  competent 

personnel;  

–  introduce minimum requirements for the content of the interview; 

–  specify the minimum requirements for the content of the training programmes; 

–  merge  the  procedure  for  dealing  with  subsequent  applications  with  the  admissibility 

procedure;  

–  require  MSs  to  take  into  account  further  representations  before  a  final  decision  on  the 

substance is taken; 

–  lay down a reasonable time limit for taking first instance decisions on the merits.  

5. 

ASSESSMENT OF IMPACTS 

Each of the sub-options implies impacts, to a varying degree, in the following areas.  

•  Increased  access  to  protection  and  justice  as  room  for  administrative  error  in  asylum 
procedures  would  be  significantly  reduced  because  of  improved  procedural  safeguards, 
better consistency between asylum instruments and enhanced quality of decision making; 

•  Increased  access  to  social  protection  as  persons  seeking  asylum  would  have  increased 
chances  of  accessing  asylum  procedures  and,  where  applicable,  obtaining  protection, 
including  the  necessary  social  and  healthcare.  The  same  consideration  applies  to  better 
public health; 

•  Increased  equality/non-discrimination:  in  particular  the  provisions  that  promote  de  facto 
equality  in  asylum  procedures  (special  guarantees  for  women  and  vulnerable  applicants), 
the provisions on access to effective remedy and improved procedural guarantees are key 
components of the preferred option that will enhance equality and non-discrimination;  

•  Good  governance:  would  be  better  achieved  within  MSs  through  the  introduction  of  a 
single determining authority and providing personnel with necessary skills and expertise.  

Quantifying costs of changes to the CEAS is particularly difficult. Protection is granted on a 
case by case basis, based on a complex analysis which is context specific, and depends on a 
number  of  legal  and  factual  circumstances.  No  data  exist  as  to  why,  over  a  given  period, 
certain  applications  have  been  accepted  and  others  rejected.  The  size  or  profile  of  asylum 
flows  cannot  be  predicted  from  year  to  year.  The  available  indications  concerning  the 
principal elements of the preferred option are the following: 

10 MS that would be potentially affected by the envisaged provisions on personal interviews 
received in total 111 650 applicants in 2008. If accessibility of interviews improve by 5 %, the 
proposed provision will affect at least 5 582 applicants requiring some 266 149,76 EUR per 
year1. 5 MS that would be affected by envisaged measures on facilitating access to procedures 
at the maritime border received 56 985 applicants in 2008. Provisions on free legal assistance 
at first instance would affect at least 11 MS which received 125 255 applicants in 2008. Up to 
48 400 persons (20 % of all applicants) might be in need of the envisaged measures regarding 
torture victims. Some 45 140 persons might benefit from better access to effective remedy in 
8  MS.  The  likely  total  administrative  costs  of  the  preferred  option  are  estimated  at 
EUR 2 857 555. 

1 

Estimates are based on the average hourly labour costs of asylum officials (EUR 23.84).  

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Many costs could be largely off-set by financial gains in the longer term. Potential savings 
may result from diminished secondary movements and improved efficiency of first instance 
procedures. By frontloading services, expertise and examinations, the preferred option should 
reduce  recourse  to  appeals  leading  to  administrative  and  financial  savings.  There  are 
indications that appeals can double the cost of an asylum claim whereas an estimated 110 846 
appeals were lodged in 2007. Additionally, it would entail a reduction of the costs involved in 
reception services. On average, 1 reception year may cost EUR 11 000 per person whereas the 
envisaged length of first instance procedures is 6 months, while appeal procedures often take 
at least 1 year.  

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

6. 

COMPARISON OF OPTIONS  

The  preferred  option  provides  for  setting  essential  procedural  principles,  safeguards  and 
notions  in  Community  Law.  By  harmonising  the  procedural  arrangements,  the  preferred 
option  has  the  potential  of  ensuring  access  to  protection  under  equivalent  conditions  across 
the Union and a better distribution of the ‘burden’ carried by MSs. It is also an important step 
towards  achieving  the  EU  aim  of  ensuring  respect  for  the  right  to  asylum,  the  principle  of 
non-refoulement and more generally for Fundamental Rights. 

The preferred option is expected to improve both the efficiency and the quality of procedures 
by  “frontloading"  services,  advice  and  expertise  and  encouraging  MSs  to  deliver,  within  a 
reasonable time, robust determinations at first instance. This should (i) enable MSs to quicker 
distinguish  between  asylum  seekers  and  other  migrants  in  mixed  arrivals,  (ii)  improve  the 
defendability  of  negative  first  instance  decisions;  (iii)  enable the  asylum  personnel  to  better 
identify  cases  of  unfounded  and  abusive  claims;  (iv)  support  MSs'  efforts  to  remove  failed 
asylum seekers from the territory.  

7. 

MONITORING AND EVALUATION  

Monitoring  and  evaluation  arrangements  will  be  in  the  form  of  a  Commission  evaluation 
report due every five years. Regular experts' meetings will continue to take place in view of 
discussing  implementation  problems  and  exchanging  best  practices  between  MSs.  The 
European Asylum Support Office will be instrumental in collecting up to date information on 
the implementation of the directive in MSs.  

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