Amended proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU
Date: 2020-09-23
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, aid to refugees, asylum seeker, foreign national, illegal migration, refugee, right of asylum, stateless person, third country

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   EUROPEAN COMMISSION  Brussels, 23.9.2020  COM(2020) 611 final 2016/0224 (COD)  Amended proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Context and reasons for the proposal  

In September 2019, European Commission President Ursula von der Leyen announced a New 
Pact  on  Migration  and  Asylum,  involving  a  comprehensive  approach  to  external  borders, 
asylum and return systems, the Schengen area of free movement and the external dimension. 

The Communication on a New Pact on Migration and Asylum, presented together with a set 
of  legislative  proposals,  including  this  proposal  amending  the  2016  proposal  for  a  recast 
Asylum  Procedures  Regulation,  represents  a  fresh  start  on  migration.  The  aim  is  to  put  in 
place  a  broad  framework  based  on  a  comprehensive  approach  to  migration  management, 
promoting  mutual  trust  among  Member  States.  Based  on  the  overarching  principles  of 
solidarity  and  a  fair  sharing  of  responsibility,  the  new  Pact  advocates  integrated  policy-
making, bringing together policies in  the areas  of asylum, migration, return, external  border 
protection and relations with key third countries. 

The  challenges  of  migration  management,  including  those  related  to  irregular  arrivals  and 
return, should not have to be dealt with by individual Member States alone, but by the EU as a 
whole. A European framework that can manage the interdependence between Member States’ 
policies and decisions is required. This framework must take into account the ever-changing 
realities  of  migration,  which  have  meant  increased  complexity  and  an  intensified  need  for 
coordination. Although the number of irregular arrivals to the Union has dropped dramatically 
by  92%  since  2015,  there  are  still  a  number  of  structural  challenges,  which  put  Member 
States'  asylum,  reception  and  return  systems  under  strain.  These  include  an  increasing 
proportion of applicants for international protection who are unlikely to receive protection in 
the EU with a resulting increased administrative burden and delays in granting protection for 
those in genuine need of protection as well as a persistent phenomenon of onward movement 
of  migrants  within  the  EU.  Moreover,  the  challenges  for  Member  States’  authorities  in 
ensuring the safety of applicants as well as their staff when facing the COVID-19 crisis must 
be acknowledged also. 

Whilst  the  number  or  irregular  arrivals  has  decreased  since  2015,  the  share  of  migrants 
arriving from countries with recognition rates lower than 20% has risen from 13% in 2015 to 
55%  in  2018.  At  the  same  time,  there  has  also  been  an  increasing  share  of  complex  cases, 
which are more resource consuming to process, as the arrival of third-country nationals with 
clear international protection needs in 2015-2016 has been partly replaced by mixed arrivals 
of persons with more divergent recognition rates. Furthermore, notwithstanding the EU-wide 
decrease  in  irregular  arrivals,  the  number  of  applications  for  international  protection  has 
continued to climb, reaching a fourfold difference to the number of arrivals. This trend points 
towards applicants not applying in the first Member State of arrival, multiple applications for 
international protection within the EU, and the need for reform of the current Dublin system. 
Finally, in  2019 half of  all irregular  arrivals by sea were disembarked following search  and 
rescue  operations  putting  a  particular  strain  on  certain  Member  States  solely  due  to  their 
geographical location.  

The increased proportion of asylum applicants unlikely to receive international protection in 
the  EU  leads  to  an  increased  burden  not  only  in  relation  to  the  processing  of  asylum 
applications  in  general  but  also  in  relation  to  the  return  of  those  migrants  not  in  need  of 

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international protection. An average of 370,000 third-country nationals  every  year  see their 
application for international protection rejected and they need to be channelled into the return 
procedure, which represents around 80% of the total number of return decisions issued every 
year. A seamless link between asylum and return procedures is therefore necessary to increase 
the overall efficiency and coherence of the asylum and migration system. Irregular migrants 
who have no protection needs, or no intention to apply for international protection should be 
quickly  channelled  into  the  return  procedure.  Existing  procedural  loopholes  need  to  be 
addressed, such as the issuance of asylum and return decisions in separate acts and a delayed 
issuance of the return decision, separate remedies, and applicants delaying procedures for the 
sole  purpose  of  trying  to  hamper  their  return  from  the  Union,  misusing  the  protection 
provided by the asylum system, and the possibility to allow applicants to remain on Member 
States’ territory during a second or further level of appeal. 

It  is  equally  important  to  work  towards  a  more  European  return  system.  The  Commission 
tabled  in  2018  a  proposal  to  recast  the  Return  Directive  to  improve  the  management  and 
effectiveness  of  returns.  That  proposal  aims  at  preventing  and  reducing  absconding  and 
unauthorised  movements,  reinforcing  the  links  with  asylum  procedures,  boosting  the  use  of 
assisted voluntary return programmes and improving monitoring and implementation with the 
support of national case-management systems. Beyond the procedural issues covered by this 
proposal  for  a  Regulation  and  the  proposal  for  a  recast  Return  Directive,  a  more  European 
return  system  requires  the  full  implementation  of  the  European  Border  and  Coast  Guard 
Regulation, with Frontex as the EU’s operational arm in returns, a comprehensive operational 
tool  to  improve  case  management  in  return,  a  sustainable  return  and  reintegration  strategy, 
engaging with third countries on readmission, and a structured high-level cooperation led by 
an EU return coordinator. 

Likewise,  the  current  migration  management  system  continues  to  put  a  heavy  burden  on 
Member  States  of  first  arrival  as  well  as  on  the  asylum  systems  of  other  Member  States 
through  unauthorised  movement.  The  current  system  is  not  sufficiently  effective  to  address 
these realities. In particular, there is currently no effective solidarity mechanism in place and 
no clear rules to discourage and address unauthorised movements. 

The New Pact builds on the Commission proposals to reform the Common European Asylum 
System from 2016 and 2018 as well as adding additional new elements to ensure the balance 
needed  for  a  common  framework  bringing  together  all  aspects  of  asylum  and  migration 
policy.  

This  proposal  amending  the  2016  proposal  for  an  Asylum  Procedure  Regulation1,  together 
with  a  new  proposal  for  a  Regulation  on  Asylum  and  Migration  Management,  the  proposal 
introducing  a  screening2,  the  proposal  amending  the  Eurodac  proposal,  and  the  proposal 
establishing  procedures  and  mechanisms  addressing  situations  of  crisis  together  establishes 
the  legislative  framework  that  puts  this  comprehensive  approach  to  migration  and  asylum 
management into practice.  

1 
2 

OJ L […], […], p. […]. 
COM (2020)xxx, XX.09.2020, Proposal for a Regulation of the European Parliament and the Council 
introducing  the  screening  of  third-country  nationals  apprehended  in  connection  with  unauthorised 
crossing  of  external  borders,  disembarked  following  search  and  rescue  operations  or  who  request 
international  protection  at  border  crossing  points  and  amending  Regulation  (EU)  No  2019/817, 
Regulation  (EU)  No  2019/818,  Regulation  (EU)  No  2017/2226,  Regulation  (EU)  No  2018/1240, 
Regulation (EC) No 767/2008 and Regulation (EC) No 2019/816 

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Together with the proposal for a Regulation introducing a screening, it ensures a seamless link 
between all stages of the migration procedure, from a new pre-entry phase to the outcome of 
an  asylum  application,  i.e.  either  the  integration  of  those  recognised  to  be  in  need  of 
protection or the return of applicants without the right to remain in the Union. The pre-entry 
phase comprises  a screening  consisting of identity, health and security  checks  on  arrival,  in 
view  of  fast  channelling  into  the  procedure  for  the  examination  of  an  application  for 
international protection or the return procedure or the refusal of entry.  

The  proposal  amending  the  2016  proposal  for  a  recast  Eurodac  Regulation  puts  in  place  a 
clear and consistent link between specific individuals and the procedures they are subjected to 
in  order  to  better  assist  with  the  control  of  irregular  migration  and  the  detection  of 
unauthorised  movements.  It  also  supports  the  implementation  of  the  new  solidarity 
mechanism  established  by  the  Regulation  on  Asylum  and  Migration  Management,  provides 
the  necessary  consequential  amendments  that  will  allow  Eurodac  to  function  within  the 
interoperability  framework,  and  will  support  Member  States  in  monitoring  the  granting  of 
assistance for voluntary return and reintegration. 

Finally,  the  Commission  is  presenting,  together  with  these  proposals,  a  proposal  for  a 
Regulation  on  the  management  of  crisis  situations  in  order  to  set  out  the  tools  necessary  to 
deal  with  crisis.  This  crisis  instrument  covers  exceptional  situations  of  mass  influx  of  third 
country nationals or stateless persons arriving irregularly in a Member State being of such a 
scale  and nature that it  would renders  a Member State’s  asylum, reception or return system 
non-functional, as well as situations where there is an imminent risk of such arrivals, which 
risk  having  serious  consequences  for  the  functioning  of,  or  result  in  the  impossibility  of 
applying, the Common  European Asylum System  and the migration management system of 
the  Union.  The  Regulation  establishes  procedures  to  address  situations  of  crisis  and  force 
majeure  in  the  field  of  migration  and  asylum  within  the  EU,  it  establishes  possible 
derogations from the applicable EU acquis on asylum and return and sets out specific rules for 
the application, in situations of crisis, of the solidarity mechanism set out in the Regulation on 
Asylum and Migration Management.  

The  reform  aims  to  tackle  the  fact  that,  despite  significantly  increased  cooperation  at  EU 
level, including as regards support from EU agencies, Member States’ asylum, reception and 
return  systems  remain  largely  not  harmonised.  This  creates  inefficiencies  and  has  the 
unintended  consequence  of  not  providing  the  same  fair  treatment  to  asylum  seekers 
throughout  Europe  and  incentivising  therefore  the  movement  of  large  numbers  of  migrants 
across  Europe  to  seek  the  best  conditions  and  prospects  for  their  stay.  In  this  context,  the 
Commission  supports 
the 
Qualification  Regulation, 
the  EU  Resettlement 
Framework Regulation and the EU Agency for Asylum Regulation. These should be finally 
adopted as soon as possible. The negotiations on the Return Directive should also be swiftly 
concluded, together with the reform of the Common European Asylum System, to ensure that 
EU  rules  are  successful  in  preventing  absconding,  providing  assistance  to  voluntary  returns 
and streamlining administrative and judicial procedures, reinforcing the effective functioning 
of the migration and asylum system.  

the  provisional  political  agreements  already  reached  on 

the  Reception  Conditions  Directive, 

 

Objectives of the proposal 

The objectives of the 2016 proposal for an Asylum Procedure Regulation are still relevant and 
need to be pursued. It is necessary to establish a common asylum procedure, which replaces 
the  various  divergent  procedures  in  the  Member  States  and  which  is  applicable  to  all 
applications  made  in  the  Member  States.  To  ensure  an  effective  and  high-quality  decision-
making  process,  it  is  also  necessary  to  put  in  place  simpler,  clearer  and  shorter  procedures 

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together  with  adequate  procedural  safeguards  and  tools  to  respond  to  abuses  of  asylum 
procedures and preventing unauthorised movements. This will lead to a more efficient use of 
resources improving the rights of applicants, allow those in need of international protection to 
receive it faster and ensure the swift return of rejected applicants without a right to stay in the 
Union.  

Procedural guarantees for the applicants should be safeguarded in particular ensuring the right 
to  be  informed  of  their  rights,  obligations  and  consequences  of  not  complying  with  their 
obligations, as well as the right to be heard in a personal interview, interpretation, free legal 
assistance and representation. All these essential elements for a fair asylum procedure, which 
are part of the 2016 Commission’s proposal, remain valid and need to be agreed upon by the 
co-legislators. 

Moreover, streamlined and harmonised rules related to safe countries of origin and safe third 
countries  are  also  needed.  EASO  can  support  co-legislators  with  analysis  in  order  to  have 
updated information of the current situation in the relevant countries.  

Against this background, the Commission does not consider necessary to make far-reaching 
amendments to the 2016 proposal on which the co-legislators have already made significant 
progress.  However,  negotiations  so  far  did  not  allow  for  finding  an  agreement  between 
Member States on the conditions for the use of the border procedure, and the extent to which 
this should be an obligation for the Member States. This issue was flagged as a key element of 
an overall compromise on the package of proposals as a whole by most Member States in the 
consultations. In addition, many Member States stressed the challenges posed by subsequent 
applications  by  persons  not  in  need  of  international  protection  and  by  ineffective  appeal 
procedures, both issues which seriously hamper return efforts. This proposal therefore makes 
targeted  amendments  to  the  2016  proposal  to  address  these  specific  challenges  which  will 
further the objectives and put in place, together with the proposal for a Regulation introducing 
a  screening,  a  seamless  link  between  all  stages  of  the  migration  process,  from  arrival  to 
processing of asylum requests and, where applicable, return.  

The  increased  pressure  resulting  from  arrivals  of  migrants  with  low  chances  of  receiving 
protection needs to  be dealt with  through new migration management tools,  including more 
harmonised  procedures,  in  particular  at  the  external  border.  For  this  purpose,  a  pre-entry 
phase is established consisting of a screening and a border procedure for asylum and return. 
During the screening, migrants will be registered and screened to establish identity and health 
and security risks. Migrants will then be referred to the appropriate procedure, be it asylum, 
refusal of entry or return. Finally, it will be determined whether an asylum application should 
be assessed without authorising the applicant’s entry into the Member State’s territory in an 
asylum  border  procedure  or  in  a  normal  asylum  procedure.  Where  an  asylum  border 
procedure  is  used  and  determines  that  the  individual  is  not  in  need  of  protection,  a  return 
border procedure will follow.   

The  purpose  of  the  joint  asylum  and  return  border  procedure  is  to  quickly  assess  abusive 
asylum  requests  or  asylum  requests  made  at  the  external  border  by  applicants  coming  from 
third countries with a low recognition rate in order to swiftly return those without a right to 
stay  in  the  Union.  The  joint  asylum  and  return  border  procedure  is  an  important  migration 
management tool to  prevent  unauthorised entries and unauthorised movements, in  particular 
as  mixed  flows  include  a  significant  share  of  asylum  applicants  who  come  from  countries 
with a low recognition rate. At the same time, for it to serve its purpose, it needs to be easy to 
be  implemented    and  provide  the  necessary  flexibility  to  Member  States  in  carrying  it  out 
effectively, while fully respecting fundamental rights.  

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At the same time, the use of the border procedure would be beneficial to the system of asylum 
generally, as a better management of abusive and inadmissible asylum requests at the border, 
would benefit the efficient treatment of genuine cases inland. 

• 

Consistency with existing policy provisions in the policy area 

This  proposal  is  fully  consistent  with  the  initiatives  accompanying  the  Pact,  notably  the 
proposal  for  a  Regulation  on  Asylum  and  Migration  Management,  the  proposal  for  a 
Regulation  introducing  a  screening  and  the  amended  proposal  for  a  recast  Eurodac 
Regulation.  

A close link is ensured between this proposal and the proposal for a Regulation introducing a 
screening.  Following  such  a  screening,  third-country  nationals  would  be  referred  either  to 
asylum or return procedures and, where relevant, to the border procedure. In both cases, the 
information collected during the screening would be taken into account when examining the 
asylum application or launching return procedures. 

The proposal is also consistent with, and complements the proposal for a recast of the Return 
Directive,  which  already  put  forward  specific  measures  aimed  at  better  linking  asylum  and 
return procedures, notably concerning the issuance of a return decision following termination 
of  legal  stay,  the  appeals  against  a  return  decision  following  a  final  decision  rejecting  an 
application for international protection and a return border procedure. The provisions included 
in this proposal for a Regulation would reinforce the seamless link between asylum and return 
procedures,  closing  existing  loopholes  and  further  reducing  the  possibilities  to  abuse  the 
asylum  system.  As  a  result  of  those  proposed  amendments,  negotiation  of  the  return  border 
procedure should take place in the context of this Regulation. 

As  concerns  the  proposal  for  a  Regulation  on  Asylum  and  Migration  Management,  this 
proposal,  together  with  the  proposal  for  a  Regulation  introducing  a  screening,  ensures  that 
migrants  entering  the  pre-entry  phase  can,  at  any  stage,  be  subject  to  relocation  or  return 
sponsorship as part of the new mechanism for solidarity, or, where applicable, be transferred 
to  the  Member  State  responsible  for  examining  an  application  for  international  protection 
based on the objective  criteria set out  in  the legislation.  It also  ensures that,  following such 
relocation  or  transfer,  the  relocating  or  transferring  Member  State  can  continue  the  border 
procedure  on  its  territory.  This  proposal  also  ensures  consistency  with  the  special  regime 
proposed for the treatment of migrants disembarked following a search and rescue operation 
in the Regulation on Asylum and Migration Management and in the amended proposal for a 
recast Eurodac Regulation, notably in how the categories of persons eligible for relocation are 
defined and by the introduction of a new category in Eurodac for those migrants.  

Finally, consistency is also ensured with the provisional political agreements already reached 
on  the  Qualification  Regulation,  the  Reception  Conditions  Directive,  the  EU  Resettlement 
Framework Regulation, and the EU Agency for Asylum Regulation.  

• 

Consistency with other Union policies 

This  proposal  is  consistent  with  the  comprehensive,  long-term  approach  to  migration 
management set out in the New Pact on Migration and Asylum, involving putting migration 
policy at the heart of relations with third country partners; creating effective legal pathways to 
the  EU;  integrating  the  management  of  external  borders  into  the  wider  EU’s  migration 
management  policy;  building  seamless,  fair  and  efficient  procedures  for  asylum  and  return; 
reinforcing the Schengen area of free movement based on trust between Member States; and 
developing dedicated policies to help the integration of third country nationals into European 
societies. 

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The proposal implements the New Pact and in particular the objective to relaunch the asylum 
reform proposed by the Commission in 2016 by  inter alia looking at ways to put in place a 
seamless  asylum  and  return  system.  In  this  respect,  the  pre-entry  phase  –  before  the  person 
has  been  authorised  to  enter  the  territory,  and  consisting  of  the  screening  and  the  border 
procedure  -  addresses  multiple  challenges  related  to  the  entire  migration  process,  from  first 
arrival  to  channelling  into  the  appropriate  asylum  or  return  procedure.  Those  challenges 
include  the  need  to  sustain  a  reduced  pressure  from  irregular  arrivals  and  strong  external 
borders, reduced onward movements as well as a swift and effective return and readmission 
system.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  bases  for  the  proposal  are  Articles  78(2)(d)  and  79(2)(c)  of  the  Treaty  on  the 
Functioning  of  the  European  Union.  These  foresee  the  adoption  of  measures  for  common 
procedures  for  the  granting  and  withdrawing  of  uniform  asylum  or  subsidiary  protection 
status  as  well  as  illegal  immigration  and  unauthorised  residence,  including  removal  and 
repatriation  of  persons  residing  without  authorisation,  respectively.  The  former  legal  basis 
was also used in the Commissions 2016 proposal for an Asylum Procedure Regulation.  It is 
necessary to add the latter legal basis to provide for specific provisions regulating the return 
of  rejected  asylum  seekers,  notably  in  relation  to  the  joint  issuance  of  a  return  decision 
following a negative decision on an application, the joint remedy against such decisions and 
the seamless asylum and return border procedures.  

 

Variable geometry  

In  accordance  with  Protocol  No  21  on  the  position  of  Ireland  in  respect  of  the  Area  of 
Freedom,  Security  and Justice, annexed to  the Treaty on European Union (TEU)  and to  the 
TFEU,  Ireland  may  decide  to  take  part  in  the  adoption  and  application  of  measures 
establishing a Common European Asylum System.  

In this respect, Ireland has given notice of its wish to take part in the adoption and application 
of  Directive  2005/85/EC  and  of  its  decision  not  to  participate  in  the  adoption  of  Directive 
2013/32/EU.  Consequently,  the  provisions  of  Directive  2005/85/EC  apply  to  Ireland,  while 
the provisions of the current Directive do not apply to Ireland. Ireland has not given notice of 
its wish to take part in the adoption of the new Asylum Procedure Regulation. The position of 
Ireland in these regards does however not affect its possible participation in the application of 
the new Regulation in accordance with Protocol No 21.   

In accordance with Protocol No 22 on the position of Denmark, annexed to the TEU and to 
the TFEU, Directive 2005/85/EC and Directive 2013/32/EU are not binding on Denmark nor 
is Denmark subject to their application. Denmark is also not taking part in the adoption of this 
Regulation and is not bound by it or subject to its application.  

 

Subsidiarity  

The  objective  of  this  proposal  is  to  make  targeted  amendments  to  the  2016  proposal  for  an 
Asylum Procedure Regulation and to put in place, together with the proposal for a Regulation 
introducing  a  screening,  a  seamless  link  between  all  stages  of  the  migration  process,  from 
arrival to processing of asylum requests and, where applicable, return. For this purpose, more 
harmonised procedures are needed, in particular a new pre-entry phase comprising a screening 
and connected asylum and return border procedures.  

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The  objective  is  also  to  introduce  in  the  common  procedure  for  granting  and  withdrawing 
international  protection  further  harmonisation  as  regards  the  issuance  of  asylum  and  return 
decisions in the same act or, if in separate acts, at the same time and together, and subject to 
the  same  effective  remedy  and  the  possibility  to  allow  applicants  to  remain  on  Member 
States’ territory during a second or further level of appeal. The purpose is to further prevent 
migrants from delaying procedures for the sole purpose of preventing their removal from the 
Union and misusing the asylum system.  

The new procedures  should  be governed by the  same rules, regardless  of the Member State 
applying them, to ensure equity in the treatment of the applicants, third-country nationals or 
stateless  persons  subject  to  them  and  clarity  and  legal  certainty  for  the  individual. 
Furthermore, Member States cannot individually establish common rules, which will reduce 
incentives  for  asylum  shopping  and  unauthorised  movements  between  them.  Therefore,  the 
objectives of this proposal cannot be sufficiently achieved by the Member States and can, by 
reason  of  the  scale  and  effects  of  this  Regulation,  be  better  achieved  at  Union  level.  The 
Union  must  therefore  act  and  may  adopt  measures,  in  accordance  with  the  principle  of 
subsidiarity as set out in Article 5 of the Treaty on European Union.  

• 

Proportionality 

In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on the 
European Union, this Regulation does not go beyond what is necessary in order to achieve its 
objectives.  

As  regards  the  objective  to  establish  new  procedures,  in  particular  a  new  pre-entry  phase 
comprising a screening and the seamless asylum and return border procedure, all elements of 
the proposal are limited to what is necessary to set up and enable such a common procedure, 
to streamline and simplify it, to ensure equality of treatment in terms of rights and guarantees 
for  applicants  and  avoid  discrepancies  in  national  procedures,  which  have  the  undesired 
consequence of encouraging unauthorised movements.  

Concerning  the  objective  to  introduce,  in  the  common  procedure  for  granting  and 
withdrawing international protection, further harmonisation as regards the issuance of asylum 
and return decisions in the same act or, if in separate acts, at the same time and together and 
subject to the same effective remedy, and as regards limiting appeal possibilities to one level 
of effective remedy for decisions taken in the border procedure, this is necessary in order to 
streamline  the  procedures  and  enhance  their  effectiveness.  The  aim  of  these  changes  is  to 
strike the right balance between the right of applicants to an effective remedy and the need to 
ensure  that  the  asylum  systems  of  the  Member  States  are  not  abused  by  applicants,  third-
country  nationals  or  stateless  persons  who  only  aim  at  preventing  their  removal  from  the 
Union. All necessary safeguards are however in place to ensure that nobody falls in between 
the cracks and that the right to asylum is always guaranteed. 

• 

Choice of the instrument 

The amended proposal does not change the choice of instrument of the 2016 proposal for an 
Asylum  Procedure  Regulation.  In  this  respect,  the  degree  of  harmonisation  of  national 
procedures  for  granting  and  withdrawing  international  protection  that  was  achieved  through 
Directive  2013/32/EU  has  not  proven  to  be  sufficient  to  address  differences  in  the  types  of 
procedures  used,  the  time  limits  for  the  procedures,  as  well  as  the  rights  and  procedural 
guarantees for the applicants. Only a Regulation establishing a common asylum procedure in 
the Union, and whose provisions shall be directly applicable can provide the necessary degree 

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of uniformity and effectiveness needed in the application of procedural rules in Union law on 
asylum. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Collection  of  knowledge  of 
legislation 

implementation  and  application  of  existing 

In 2016, the Commission commissioned a study in order to determine whether the provisions 
of  the  Asylum  Procedures  Directive  (2013/32/EU)  are  correctly  reflected  in  the  legal 
framework  of  each  Member  State.  The  study  assessed  whether  the  obligations  in  the 
Directiveare introduced into the national legal orders and if the Member States complied with 
their notification duty (transposition check) and whether the national implementing measures 
were compatible with the Directive’s provisions (conformity check). For the purposes of the 
assessment, an exhaustive account of the national legislation of each Member State was given 
so  as  to  include  all  relevant  national  acts  that  contribute  to  the  implementation  of  the 
Directive, not limited to the direct transposing measures. 

According  to  the  study,  the  Directive  has  been  transposed  in  a  conform  manner  by  the 
majority  of  Member  States  overall.  However,  the  study  detected  cases  of  incomplete  or 
incorrect  implementation  in  almost  all  Member  States  in  relation  to  matters  such  as  the 
requirements  for  a  personal  interview,  guarantees  for  unaccompanied  minors  or  the 
examination  procedure.  The  Commission  has  been  addressing  these  concerns  with  the 
Member States concerned, including by opening infringement procedures. 

In  2019,  the  European  Asylum  Support  Office  (EASO)  published  its  Guidance  on  asylum 
procedure:  operational  standards  and  indicators,  whose  overall  objective  is  to  support 
Member States in  the practical  implementation  of key provisions of the  Asylum Procedures 
Directive  (2013/32/EU).  The  Guidance  is  an  important  contribution  to  the  formulation  of 
common  operational  standards  and  indicators  that  are  realistic  and  achievable  across  all 
Member  States,  as  well  as  a  compilation  of  good  practices.  The  Guidance  was  preceded  by 
evidence collected by EASO in particular on appeals and special asylum procedures. EASO 
has also issued two practical guides: Practical Guide on Age Assessment (2018) and Practical 
guide  on  the  best  interests  of  the  child  in  asylum  procedures  (2019).  Moreover,  EASO  has 
issued a report on asylum procedures for children, highlighting good practices and providing 
recommendations  on  issues  such  as  the  best  interest  of  the  child  principle,  safeguards  and 
special conditions related to children, referral mechanisms and training of staff. 

Significant information concerning Member States’ asylum systems as well as the positions of 
Member States and the European Parliament was also collected during the almost four years 
of negotiations on the Commission’s proposal for an Asylum Procedure Regulation, presented 
on  13 July  2016.  The  European  Parliament  adopted  its  position  on  the  proposal  on  22  May 
2018.  Despite  significant  progress  on  the  text,  the  Council  has  not  yet  been  able  to  adopt  a 
common  approach,  mainly  due  to  disagreements  as  concerns  the  border  procedure.  In 
addition,  the  Council  did  not  come  to  a  position  on  the  European  list  of  safe  countries  of 
origin  as  proposed  by  the  Commission.  The  Council  also  considered,  without  coming  to  a 
position,  whether  the  proposed  Regulation  should  also  include  a  European  list  of  safe  third 
countries.  

As concerns the use of accelerated and border procedures, in 2016, the Commission proposed 
that  the  accelerated  examination  procedure  should  become  obligatory  in  certain  cases,  with 

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to 

limited  cases  compared 

the  Commission  proposal, 

specific rules with regard to the possibility to apply it with respect to unaccompanied minors. 
The  Commission  proposed  in  2016  an  optional  border  procedure.  The  European  Parliament 
agreed  that  the  accelerated  procedure  should  become  an  obligation  in  certain  cases,  but  in 
more 
in  particular  not  for 
unaccompanied minors. The European Parliament also excluded unaccompanied minors from 
the border procedure. The Council has leaned towards extending the situations in which the 
accelerated  procedure  can  be  used,  including  for  unaccompanied  minors.  Concerning  the 
border  procedure,  the  Council  has  been  divided  as  to  whether  or  not  to  make  the  border 
procedure compulsory, at least to a certain extent. Member States in favour of an obligation to 
apply the border procedure have pointed to its importance as a migration management tool, in 
particular  where  a  large  share  of  asylum  applicants  are  coming  from  countries  with  a  low 
recognition  rate. The border procedure  can hence increase the chances of successful returns 
directly from the external border within a short period of time after the arrival, notably thanks 
to  the  swifter  procedure  for  return  and  the  stronger  links  between  asylum  and  return,  and 
decrease the risk of applicants  absconding or performing unauthorised movements. Member 
States that were  sceptical during the negotiations towards an obligation to apply the border 
procedure,  pointed  to  some  challenges  in  applying  such  procedures  systematically,  such  as: 
difficulties  in  quickly  assessing  whether  an  applicant  could  qualify  for  examination,  in  the 
border  procedure  and  the  need  in  the  meantime  to  keep  the  applicant  at  the  border;    appeal 
procedures that take too long and therefore the deadline for completing the border procedure 
expires before a decision can be taken on the application; the need for important investments 
and  resources  (infrastructure,  staff  and  equipment);  and  limited  relevance  of  applying  the 
border procedure where there is no prospect of returning the rejected applicant. 

In  the  2018  proposal  for  a  recast  Return  Directive,  the  Commission  proposed  that  Member 
States  should issue a return decision immediately  after a decision ending the legal  stay of a 
third-country national, notably a decision rejecting an application for international protection. 
The  same  proposal  also  established  a  return  border  procedure  applicable  to  third-country 
nationals  whose  applications  for  international  protection  had  been  rejected  in  the  context  of 
the asylum border procedure. While the European Parliament has not  yet adopted a position 
on the Commission’s proposal, the Council reached a partial general approach in May 2019, 
which covers all elements of the proposal except on the return border procedure due notably 
to its links with the asylum border procedure of the 2016 proposal for an Asylum Procedure 
Regulation on which no agreement could be found.  

As concerns the right to an effective remedy, in order to reduce possibilities for abuse of the 
asylum system, in 2016, the Commission proposed that second- or higher-level appeals before 
a court or tribunal should not have an automatic suspensive effect unless a court or tribunal 
decides  otherwise,  acting  ex  officio  or  at  the  request  of  the  applicant.  The  European 
Parliament supported in its report this provision, while the Council considered that the asylum 
procedure as regulated by EU law should end following the decision by a first instance appeal 
court.  The  Commission  also  proposed  to  set  harmonised  time  limits  for  applicants  to  lodge 
appeals  before  courts  or  tribunals  of  first  instance  as  well  as  time  limits  for  the  courts  to 
decide  on  appeals.  The  European  Parliament  agreed  on  time  limits  for  applicants  to  lodge 
appeals but could not support on introducing time-lines for the courts or tribunals to rule. The 
Council favoured time-ranges to be defined in national law rather than harmonised time limits 
at  European  level  for  applicants  to  lodge  appeals  and  could  not  support  the  introduction  of 
time-lines within which  the courts or tribunals have to rule. The Council could nevertheless 
accept that such time limits are set at national level.  

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• 

Stakeholder consultations 

The  Commission  consulted  Member  States,  the  European  Parliament  and  stakeholders  on  a 
number  of  occasions  to  gather  their  views  on  the  new  Pact  on  Migration  and  Asylum.  In 
parallel,  the  Romanian,  Finnish  and  Croatian  Presidencies  have  held  both  strategic  and 
technical  exchanges  on  the  future  of  various  aspects  of  migration  policy,  including  asylum, 
return,  relations  with  third  countries  on  readmission  and  reintegration.  These  consultations 
showed support for a fresh start on European asylum and migration policy to urgently address 
the flaws in the Common European Asylum System (CEAS), to improve the effectiveness of 
returns and establish a genuine European return system, to reinforce our relations with third 
countries on readmission and to ensure a sustainable reintegration of migrants following their 
return to the countries of origin. 

Ahead of the launch of the New Pact on Migration and Asylum, the Commission has engaged 
in continuous intense consultations with the European Parliament. The Commission has also 
held  two  rounds  of  intense  visits  and  bilateral  consultations  with  each  Member  State 
individually in the first 100 days in office and also, more recently, before the presentation of 
the  Pact.  Member  States  and  the  European  Parliament  supported  the  need  for  progress  in 
solving  the  weaknesses  of  the  current  system,  the  need  for  a  new  system  of  fair  sharing  of 
responsibility to which all Member States can contribute, strong border protection, respect for 
fundamental  rights  in  all  aspects  of  the  EU’s  migration  policy,  importance  of  the  external 
dimension of migration, including legal and safe pathways, and improved returns.  

A  number  of  workshops  and  discussions  were  organised  during  the  Finnish  Presidency  in 
various Council fora, including the Tampere 2.0 Conference held on 24-25 October 2019 in 
Helsinki  and  the  Salzburg  Forum  held  in  Vienna  on  6-7  November  2019,  where  Member 
States welcomed the intention of the European Commission to relaunch the Dublin reform in 
order  to  find  new  forms  of  solidarity  to  which  all  Member  States  would  be  required  to 
contribute. Member States underlined that solidarity measures need to be part of the reformed 
system  but  that  they  should  go  hand  in  hand  with  measures  of  responsibility.  Furthermore, 
they underlined the urgent need to combat unauthorised movements within the EU as well as 
to  enforce  returns  for  those  who  are  not  in  need  for  international  protection.  The  European 
Parliament stressed on several occasions the need to sufficiently protect families with children 
and  take  special  care  as  regards  unaccompanied  minors.  Commissioner  Johansson  held  on 
several  occasions  targeted  consultations  with  international  organisations,  civil  society 
organisations, relevant local non-governmental organisations in the Member States, social and 
economic partners. In this consultation process, specific recommendations were presented in 
relation to the need for further developing a common approach on child-specific standards in 
line with the Communication of 2017 on Children in Migration3. Civil society has also been 
consulted  in  the  process  of  the  Consultative  Forum  set  up  by  EASO,  on  topics  such  as  the 
initial steps in the asylum procedure (2019). 

The Commission has also taken into consideration specific recommendations of national and 
local  authorities4, non-governmental and international  organisations, such  as United Nations 

3 

4 

The Initiative for Children in Migration called for a common approach to address  the issue of missing 
(unaccompanied  and  separated)  children,  to  establish  effective  mechanisms  to  tackle  the  risks  of 
trafficking, and the adoption of child-specific standards for asylum procedures. 
For example, Berlin Action Plan on a new European Asylum Policy, 25 November 2019, signed by 33 
organisations and municipalities. 

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High  Commissioner  for  Refugees  (UNHCR)5,  the  International  Organisation  for  Migration 
(IOM)6, as well as  think-tanks and academia, on  how to  envisage a fresh  start  on migration 
and address the current migration challenges whilst safeguarding human rights standards. In 
their  view,  a  fresh  start  on  the  reform  should  revise  certain  rules  for  the  determination  of 
responsibility  and  provide  for  a  mechanism  of  mandatory  solidarity  including  for  persons 
disembarked further to a SAR operation. Non-governmental organisations also advocate for a 
common  understanding  of  responsibility  among  Member  States  and  called  for  the  revised 
Dublin rules to include a more permanent relocation mechanism7.  

The  Commission  also  took  into  account  the  contributions  and  studies  of  the  European 
Migration Network8, which have been launched at its initiative and which over the last years 
have produced several specialised studies and ad hoc queries. 

Evidence-based policy-making 

The  Commission  favours  an  evidence-based  policy-making  and  refers  to  the  separate 
document  (XXX)  which  includes  the  relevant  data  and  elements  supporting  the  proposed 
approach  for  the  various  challenges  identified  since  2016  for  the  finalisation  of  the  CEAS 
reform and the strengthening of the European return legal framework. 

• 

Fundamental rights  

This  proposal  respects  fundamental  rights  and  observes  the  principles  recognised,  in 
particular,  by  the  Charter  of  Fundamental  Rights  of  the  European  Union,  as  well  as  the 
obligations stemming from international law, in particular from the Geneva Convention on the 
Status  of  Refugees,  the  European  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental Freedoms, the International Covenant for Civil and Political Rights, the United 
Nations Convention against Torture, and the United Nations Convention on the Rights of the 
Child. 

The right to liberty and freedom of movement is protected given that, if detention is used in 
the context of the border procedure, pursuant to the Reception Conditions Directive and the 
Return  Directive  it  would  be  justified  only  on  specific  grounds  clearly  defined  in  those 
Directives,  when  it  proves  necessary  and  proportionate,  on  the  basis  of  an  individual 
assessment of each case subject to judicial review, and as a measure of last resort if other less 
coercive alternative measures cannot be applied effectively.  

The proposal guarantees that the best interest of children will always be protected, notably by 
excluding  as  a  rule  the  application  of  the  border  procedure  in  the  case  of  unaccompanied 
minors and families with children under the age of 12, unless when they are considered to be 
a danger to the national security or public order of a Member State, or the applicant has been 
forcibly expelled for serious reasons of public security or public order under national law. 

5 

6 
7 

8 

UNHCR Recommendations for the European Commission’s proposed Pact on Migration and Asylum, 
January 2020. 
IOM Recommendations for the new European Union Pact on Migration and Asylum, February 2020.  
CEPS  Project  Report,  Search  and  rescue,  disembarkation  and  relocation  arrangements  in  the 
Mediterranean. Sailing Away from Responsibility?, June 2019. 
All studies and reports of the European Migration Network are available at: https://ec.europa.eu/home-
affairs/what-we-do/networks/european_migration_network_en. 

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The right to effective remedy is adequately ensured, as it is only in duly justified cases set out 
in this Regulation, where applications are likely to be unfounded, that an applicant should not 
have an automatic right to remain for the purpose of the appeal.  

The respect of the principle of non-refoulement is  ensured, as the proposal establishes that all 
the effects of a return decision shall be suspended for as long as the applicant has a right to 
remain or is allowed to remain for the purpose of an application for international protection. 
In  addition,  by  virtue  of  the  provisions  of  the  Return  Directive,  the  principle  of  non-
refoulement  must  be  respected  during  all  phases  of  return  procedures  and  appeals  against 
return  decisions  shall  automatically  suspend  the  enforcement  of  decisions  which  risk 
breaching that principle.  

4. 

BUDGETARY IMPLICATIONS 

This proposal does not impose any financial or administrative burden on the Union. Therefore 
it has no impact on the Union budget. Member States will be able to make use of the funds 
allocated  under  their  national  programmes  under  both  the  existing  Asylum,  Migration  and 
Integration Fund and the new Asylum and Migration Fund to support any investments needed 
in  the  infrastructure  for  the  use  of  the  border  procedure.  EASO  and  Frontex  can  support 
Member States with staff for the same purpose, within their respective mandates. 

• 

Monitoring, evaluation and reporting arrangements 

The Commission  shall  report on the application  of the Asylum Procedure Regulation  to  the 
European Parliament and to the Council within two years from its entry into force and every 
five  years  thereafter.  Member  States  shall  be  required  to  send  relevant  information  for 
drafting the  report to  the Commission  and to  the European Union  Agency  for  Asylum.  The 
Agency  will  also  monitor  compliance  with  the  Regulation  by  Member  States  through  the 
monitoring  mechanism,  which  the  Commission  proposed  to  establish  in  its  revision  of  the 
mandate of the Agency.9 

• 

Detailed explanation of the specific provisions of the proposal 

The aim of this proposal is to make targeted amendments to the 2016 Commission proposal 
for  an  Asylum  Procedure  Regulation  to  put  in  place,  together  with  the  proposal  for  a 
Regulation  introducing  a  screening  and  the  proposal  amending  the  Return  Directive,  a 
seamless  link  between  all  stages  of  the  migration  process,  from  arrival  to  processing  of 
asylum  requests  and  granting  of  international  protection,  or,  where  applicable,  the  return  of 
those not in need of international protection.  

1. 

New pre-entry phase  

The increased pressure resulting from  the arrivals of mixed flows with  a high proportion of 
those  with low chances of receiving international protection needs to be addressed with new 
and  effective  migration  management  tools,  including  more  harmonised  procedures,  in 
particular at the external border, to ensure a quick identification and channelling of migrants 
into the right procedure and quick examination of their claims. For this purpose, a new pre-
entry  phase  is  established  consisting  of  a  screening  in  [COM  (2020)xxx  final],  a  more 
developed accelerated procedure and a border procedure for asylum and return. 

9 

COM (2016) 271 final.   

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As concerns the border procedure, and as further explained above, this proposal aims on the 
one  hand  to  make  the  border  procedure  more  flexible  but  equally  more  effective  for  the 
Member States in practice by adapting it to practical experience and actual flows on the main 
migration  routes.  This  involves  providing  additional  grounds  to  use  it  while  extending  the 
maximum  length  of  such  a  procedure.  A  more  effective  border  procedure  such  as  this  will 
allow  asylum  and  migration  authorities  to  more  efficiently  assess  genuine  claims  inland, 
deliver  faster  decisions  and  thereby  contribute  to  a  better  and  more  credible  functioning  of 
asylum  and  return  policies,  in  full  respect  of  fundamental  rights.  On  the  other  hand,  the 
obligatory nature of a border procedure for certain categories of applicants needs to be seen in 
the broader context  of the overall set  of measures presented by the Commission  in  the Pact 
and  in  the  accompanying,  as  well  as  the  pending,  proposals.  Also  in  this  regard,  practical 
experiences need to be taken into account. In particular, the criteria for assessing whether an 
application  is  to  be  assessed  in  a  border  procedure  needs  to  be  easy  and  quick  to  apply  in 
practice.  Finally,  it  also  needs  to  be  borne  in  mind  that  a  certain  number  of  persons  whose 
asylum applications have been rejected will, at least in the short term, not be returned due to 
lack of cooperation of third countries. 

A border procedure is easier to use, if it can be concluded from the outset – upon entry, during 
the screening – based on an objective criterion, whether a person should be subject to it.  

It is also important to  clarify at which moment the asylum border procedure  starts to apply. 
That is why Articles 26 and 27 are modified, to clarify that Member State are to register the 
asylum application once the screening has ended. . This does not affect the right of the person 
to make an asylum application immediately when arriving on the territory of a Member State, 
it only means that his/her application will be registered once the screening has ended and the 
necessary information is at hand to decide whether the border procedure should be used. 

2. 

– 

– 

Scope  of  the  asylum  border  procedure:  determining  to  whom  the  border  procedure 
can be applied, and towhom it should be applied :  

First,  the  new  Article  41(1)  and  (2)  clarifies  that  only  such  applications  can  be 
assessed in a border procedure where applicants have not yet been authorised to enter 
the  Member  State’s  territory  and  without  meeting  the  entry  conditions  under  the 
Schengen Borders Code. The border procedure will follow the screening carried out 
in  accordance  with  Regulation  (EU)  No  XXX/XXX  [Screening  Regulation],  where 
applications were made at an external border crossing point or transit zone, following 
apprehension  in  connection  with  an  irregular  crossing  of  the  external  border  or 
following disembarkation after a search and rescue operation.  

Decisions  in  a  border  procedure  may  only  be  taken  on  the  admissibility  of  the 
application or on the merits of the application where the application is examined in 
an  accelerated  procedure.  This  includes  the  possibility  to  carry  out  the  border 
procedure for the cases where a Member State may consider a third country as a ‘safe 
country of origin’ or a ‘safe third country’ for the applicant which require a more in-
depth  assessment  of  the  situation  of  an  applicant.  Therefore  a  new  acceleration 
ground  is  added,  which  is  based  on  a  more  objective  and  easy-to-use  criteria, 
according to to which Member State shall accelerate the examination of applications 
made  by  applicants  coming  from  third  countries  for  which  the  share  of  positive 
asylum decisions in the total number of asylum decisions is, according to the latest 
available yearly Union-wide average Eurostat data, less than 20%.  This percentage 
is  justified  by  the  significant  increase  in  the  number  of  applications  made  by 

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– 

– 

– 

– 

– 

applicants coming from countries with a low recognition rate, lower than 20%, and 
hence  the  need  to  put  in  place  efficient  procedures  to  deal  with  those  applications, 
which are likely to be unfounded.    

According to the new Article 41(7), while applying the asylum border procedure, the 
Member States may also carry out the procedure for determining the Member State 
responsible for examining the application.  

The  new  Article  41(6),  clarifies  that  applicants  subject  to  the  asylum  border 
procedure shall not be authorised to enter the Member State’s territory.  

Obligation of Member  States  to apply  the asylum border procedure in certain 
cases: The new Article 41(3) obliges Member States to apply the border procedure in 
cases of irregular arrival at the external border or following a disembarkation after a 
search  and  rescue  operation  and  if  one  of  the  following  grounds  apply:  1,  the 
applicant poses a risk to national security or public order 2, the applicant has misled 
the  authorities  by  presenting  false  information  or  documents  or  by  withholding 
relevant  information  or  documents  with  respect  to  his  or  her  identity  or  nationality 
that could have had a negative impact on the decision 3,the applicant is from a third 
country  for  which  the  share  of  positive  asylum  decisions  in  the  total  number  of 
asylum decisions is below 20 percent.  

Exceptions  from  the  obligation  to  carry  out  the  asylum  border  procedure: 
According  to  the  joint  reading  of  the  new  Article  41(3)  and  (5),  unaccompanied 
minors and minors below the age of 12 and their family members are only subject to 
the  border  procedure  in  case  they  are  considered  to  be  a  danger  to  the  national 
security  or  public  order  of  the  Member  State.  The  new  Article  41(4)  also  allows 
Member  States  to  make  exceptions  from  the  obligation  to  carry  out  the  asylum 
border procedure in cases where from the outset it is unlikely that the readmission of 
the  persons,  in  case  of  a  negative  decision  on  their  asylum  application,  would  be 
successful. The exception will be applicable for nationals of third countries for which 
that  Member  State  has  submitted  a  notification  to  the  Commission  in  accordance 
with paragraph 3 of Article 25a of the Visa Code. Such a notification may be made 
where  the  Member  State  is  confronted  with  substantial  and  persisting  practical 
problems  in  cooperating  with  the  third  country  in  question  on  the  readmission  of 
irregular  migrants.  Article  41(4)  further  specifies  the  situations  and  applicable 
procedures  for  when  Member  States  may  continue  to  apply  this  exception  or  when 
they shall cease to do so and hence apply the border procedure to the nationals of the 
third country concerned.  

Duration of the asylum border procedure:  The new Article 41(11) specifies that 
the  border  procedure  shall  have  a  maximum  duration  of  12  weeks  from  when  the 
application is registered for the first time. By way of derogation from the normal 10 
day deadline for lodging, the application shall be lodged no later than five days after 
such  registration  or,  in  case  the  applicant  has  been  relocated  in  accordance  with 
Article [x] of the Regulation on Asylum and Migration Management, five days from 
when  the  applicant  identifies  himself  or  herself  to  the  competent  authorities  in  the 
Member  State  responsible  (new  Article  41(10).  This  derogation  is  justified  by  the 
fact that in these cases the applicant has not been authorised to enter the territory, and 
a  delayed  lodging  should  not  be  allowed  to  delay  the  border  procedure  and  the 
corresponding 12 week deadline.  

– 

Guarantees  in  the  asylum  border  procedure:  The  new  Article  41(5)  and  (9) 
specifies  the  cases  where  the  asylum  border  procedure  shall  not  be  applied. 

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Unaccompanied minors and families with children below the age of 12 may only be 
subject to a border procedure for reasons linked to national security or public order, 
namely when the unaccompanied minor, or, in the case of families, any member of 
the family, are considered to be a danger to the national security or public order of 
the  Member  State,  or  have  been  forcibly  expelled  for  serious  reasons  of  public 
security  or  public  order  under  national  law.  According  to  the  new  Article  41(9), 
Member  States  shall  not  apply  or  cease  to  apply  the  border  procedure  in  certain 
cases, including where the grounds for applying the border procedure are not or no 
longer  met,  where  the  necessary  support  cannot  be  provided  to  applicants  with 
special procedural needs, where there are medical reasons for not applying the border 
procedure, and where the conditions for detention in accordance with the Reception 
Conditions  Directive  cannot  be  met  and  the  border  procedure  cannot  be  applied 
without  detention.  Where  the  border  procedure  is  not  or  no  longer  applied,  the 
applicant  shall  be  granted  entry  to  the  Member  State’s  territory  and  his  application 
examined in the applicable  asylum procedure (including in an accelerated procedure 
if relevant). 

Location of applicants subject to the asylum border procedure: The new Article 
41(15) makes it possible to accommodate applicants subject to the border procedure 
not only at locations at external borders or transit zones but also in proximity to such 
locations.  

However, Member States do not need to provide for the necessary facilities to apply 
the border procedure at every border crossing point or at every section of the external 
border  where  migrants  may  be  apprehended  or  disembarked.  They  can  choose  the 
locations  where  to  set  up  the  necessary  facilities  for  that  purpose  anywhere  at  the 
external  border  or  in  the  proximity  of  the  external  border  and  transfer  those 
applications covered by the border procedure to those locations regardless of where 
the asylum  application  was  initially made. However, to  avoid  too  many  and overly 
time consuming transfers of applicants for this purpose Member States should aim at 
setting up the necessary facilities where they expect to receive the most applications 
falling with the scope of the border procedure. 

In case where the operational capacity of those locations is exceeded for the purpose 
of  processing  those  applicants  for  which  the  border  procedure  is  applied,  Member 
States  may on a temporary basis and for the shortest time necessary, accommodate 
applicants at other locations within the territory of the Member State. This exception 
should  only  be  applicable  when  the  operational  capacity  at  those  locations  is 
temporarily  exceeded,  since  Member  States  should  aim  at  providing  a  sufficient 
capacity at those locations having regard to the expected caseload of applications. 

A new border procedure for carrying out return: The new Article 41a introduces 
a  border  procedure  for  carrying  out  return,  which  replaces  the  return  border 
procedure  included  in  the  2018  proposal  for  a  recast  Return  Directive.  The  border 
procedure  for  carrying  out  return  applies  to  applicants,  third-country  nationals  or 
stateless persons whose applications have been rejected in the context of the border 
procedure  for  asylum.  Persons  subject  to  this  procedure  are  not  authorised  to  enter 
the  Member  State’s  territory  and  should  be  kept  at  the  external  borders,  or  in  their 
proximity,  or  in  transit  zones;  however,  where  Member  States  are  unable  to  keep 
them  in  those  locations,  they  can  use  other  locations  within  their  territory.  Third-
country  nationals  and  stateless  persons  subject  to  the  procedure  can  be  granted  a 
period  for  voluntary  departure  not  exceeding  15  days,  without  prejudice  to  the 
possibility  to  voluntarily  comply  with  the  obligation  to  return  departing  from  a 

– 

– 

– 

– 

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15 

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border  area  or  transit  zone  at  any  moment.  This  would  reduce  the  risk  of 
unauthorised entry and movement of illegally staying third-country nationals subject 
to the border procedure for carrying out return without preventing their possibility to 
return  voluntarily  and,  if  allowed  by  national  law,  receive  logistical,  financial  or 
other  assistance.  The  border  procedure  for  carrying  out  return  cannot  exceed  12 
weeks, starting from when the person concerned no longer has a right to remain and 
is no longer allowed to remain, i.e. when a request by the applicant to be granted the 
right to remain has been denied by a court. This period is additional to the one set for 
the border procedure for the examination of applications for international protection. 
During  this  period  or  part  of  it,  in  order  to  facilitate  and  secure  return,  illegally 
staying  third-country  nationals  may  be  held  in  detention  in  individual  cases;  the 
procedural safeguards and guarantees set by the Return Directive will apply. Third-
country  nationals  who  were  already  detained  (with  all  the  applicable  safeguards 
provided for by the Receptions Conditions  Directive) during the  examination of an 
application for international  protection  as part of the asylum  border procedure may 
be held in  detention  in order to prevent  unauthorised entry  and  carry out  return.  In 
other  cases,  and  notably  when  the  third-country  nationals  were  not  detained  during 
the  asylum  border  procedure,  detention  may  be  used,  within  the  same  maximum 
period of duration, if the grounds for detention set out in the recast Return Directive 
are met  (there is  a risk  of absconding, the person concerned avoids or hampers the 
preparation  of  return  or  the  removal  process,  or  the  person  poses  a  risk  to  public 
policy,  public  security  or  national  security).  However,  the  maximum  period  of 
detention set by Article 15(5) and (6) of the Return Directive (maximum 6 months, 
which can be prolonged in certain circumstances by an additional period of up to 12 
months)  remains  unchanged,  hence  the  period  of  detention  that  may  take  place 
during  the  border  procedure  for  carrying  out  return  shall  be  included  within  that 
time-limit.  

Termination of the border procedure and right to enter in the territory: Where 
the  asylum  procedure  is  still  ongoing  at  the  end  of  the  deadline  for  concluding  the 
border  procedure,  the  applicant  shall  be  authorised  to  enter  the  Member  State’s 
territory  for  the  completion  of  the  asylum  procedure.  Entry  shall  not  be  authorised 
where the applicant no longer has a right to remain and is not allowed to remain. In 
case a return decision has already been issued, the applicant shall instead be subject 
to  the  return  border  procedure,  which  cannot  last  longer  than  12  weeks;  once  this 
period  expires,  the  illegally  staying  third-country  national  would  be  subject  to  the 
return procedure established by the Return Directive. 

Transferability  of  the  asylum  and  return  border  procedure:  The  asylum  and 
return  border  procedure  may  be  applied  in  another  Member  State  than  the  one  in 
which the asylum application was made. According to the new Article 41(8), where 
the conditions for applying the border procedure are met in the Member State where 
the application was made, the Member State to which the applicant was relocated in 
accordance  with  Article  [x]  of  Regulation  (EU)  No  XXX/XXX  [Asylum  and 
Migration  Management  Regulation]  may  apply  the  asylum  and  return  border 
procedures.  The  asylum  and  return  border  procedures  may  also  be  applied  by  the 
Member State of relocation where an application for international protection is only 
made in that Member State following a relocation (new Article 41(1)(d)). 

– 

– 

In  summary,  an  asylum  border  procedure  should  be  applied  to  asylum  claims  that  are 
clearly abusive, or where the applicant poses a threat to security or is unlikely to be in need of 
international protection due to their nationality’s recognition rate. In addition, Member States 

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16 

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can  choose  to  use  an  asylum  border  procedure  on  the  basis  of  the  admissibility  of  the 
application or on the merits of the application, where the application should be examined in 
an  accelerated  procedure.    Finally,  in  cases  where,  from  the  outset,  it  is  unlikely  that  the 
readmission  of  these  persons,  in  case  of  a  negative  decision  on  their  asylum  application, 
would be successful, Member States may decide not to apply the asylum border procedure but 
instead  use  the  normal  asylum  procedure.  The  normal  asylum  procedure  would  apply  to  all 
other  asylum  claims.  Unaccompanied  children  and  children  under  12  years  old  with  their 
family members will be exempt from the border procedure unless there are security concerns. 

3. 

An end-to-end asylum and return procedure 

A seamless link between all stages of the migration process also needs to be established for 
migrants  who  have  circumvented  the  screening  or  been  authorised  to  enter  the  Member 
State’s territory to have their asylum requests processed in the normal asylum procedure. For 
this  purpose,  targeted  changes  to  the  Commission’s  2016  proposal  are  necessary  to  prevent 
migrants from delaying procedures for the sole purpose of preventing their removal from the 
Union  and  misusing  the  asylum  system.  This  concerns  in  particular  the  effectiveness  of  the 
appeal  procedure,  especially  in  relation  to  the  border  procedure,  and  related  right  to  remain 
(suspensive  effect)  of  the  applicant,  notably  in  relation  to  subsequent  applications,  an  issue 
raised by a number of the Member States during the consultations on the new Pact.  

– 

– 

Streamlining asylum and return procedures including appeals 

The new Article 35a requires Member States to issue the asylum and return decisions 
in the same act or, if in separate acts, at the same time and together. The new Article 
53(1)  streamlines  asylum  and  return  appeal  procedures  by  ensuring  the  right  to  an 
effective  remedy  for  both  asylum  and  return  decisions  before  the  same  court  or 
tribunal and within the same judicial proceedings and time limits. These rules ensure 
that  the  return  procedure  is  not  unnecessarily  delayed  and  reduce  the  risk  that  the 
rejected  asylum  applicant  absconds  or  prevents  his  or  her  removal,  while  ensuring 
respect of the fundamental right to an effective remedy before a court or tribunal.  

 

In  the  2016  proposal  the  Commission  proposed  that  Member  States  may 
provide  an  exception  from  the  right  to  remain  on  their  territory  in  case  of 
subsequent  applications  where  a  subsequent  application  has  been  rejected  by 
the determining authority as inadmissible or manifestly unfounded, or in case 
of a second subsequent appliction. Taking into account the consultations of the 
Member  States,  the  Commission  considers  that  there  is  room  to  provide  for 
further  exceptions  to  the  right  to  remain  in  case  of  subsequent  applications, 
provided that such exceptions are carefully framed. Therefore, according to the 
new  point  (a)  of  paragraph  1  of  Article  43,  an  applicant  who  lodges  a 
subsequent  application  should  not  be  authorised  to  remain  pending  the 
finalisation  of  the  decision  declaring  the  application  inadmissible  where  the 
following cumulative conditions are met: the removal is imminent; it must be 
clear  that  the  application  is  made  merely  in  order  to  delay  or  frustrate  the 
removal; and it must be immediately clear to the determining authority that no 
new  elements  have  been  presented;  there  is  no  risk  of  refoulement;  and  the 
subsequent  application  was  presented  within  one  year  of  the  decision  by  the 
determining authority on the initial application. In order to be able to apply this 
rule,  Member  States  will  need  to  organise  procedures  in  such  a  way  that  the 
determining authority can take such a decision, assessing whether all of these 
criteria  are  fulfilled  as  swiftly  as  possible  after  which  the  subsequent 

EN 

17 

  EN 

 
 

 

 

 

 

 

 

application has been made, as otherwise the main rule of the applicant having 
the right to remain while the subsequent application is examined will apply. 

In the interest of clarity, Articles 53 and 54 are included in their entirety in this 
proposal.  No  significant  changes  to  the  2016  proposal  are  proposed  as  to  the 
provisions  related to  the basic principle of  an  effective remedy, interpretation 
and translation at the appeal stage, and the procedure related to the granting of 
a right to remain. 

The  new  Article  53(2)  retains  the  possibility,  which  exist  today,  under  the 
Asylum Procedures Directive to consider an appeal against a decision rejecting 
an  application  as  unfounded  in  relation  to  refugee  status  as  inadmissible  in 
accordance with  national law where subsidiary  status  granted by the Member 
State  offers  the  same  rights  and  benefits  as  refugee  status  under  Union  and 
national law. 

The  new  Article  53(7)  provides  for  minimum  and  maximum  timeframes  for 
applicants to lodge first level appeals rather than exact time limits as proposed 
in  2016  in  order  to  ensure  a  certain  level  of  harmonisation  while  taking  into 
account  Member  States’  views  as  expressed  in  negotiations  on  the  2016 
proposal. For this purpose, a distinction is made between decisions taken in the 
accelerated or border procedure, for which the deadlines for making an appeal 
can  be  shorter,  including  as  regards  subsequent  applications,  and  other 
decisions.  

In  accordance  with  the  new  Article  53(9),  Member  States  shall  not  grant  to 
applicants  a  possibility  to  lodge,  against  a  decision  taken  in  the  border 
procedure, a further appeal against a first appeal decision. 

The  new  Article  54(1)  clarifies  that  all  the  legal  effects  of  a  return  decision 
issued  together  with  a  decision  rejecting  an  application  for  international 
protection shall be suspended for as long as the applicant has a right to remain 
or is allowed to remain in accordance with the Regulation.  This is in line with 
the judgment of the Court of Justice of the European Union in case C-181/16, 
Gnandi,  which  clarified  that  he  legal  effects  of  a  return  decision  must  be 
suspended when an appeal against a rejection of an application for international 
protection is ongoing and if the third-country national enjoys a right to remain 
in accordance with the Asylum Procedure Regulation. 

The new Article 54(3) extends the circumstances where the applicant shall not 
have an automatic right to remain for the purpose of an appeal to also include 
decisions rejecting subsequent applications, decisions to withdraw international 
protection in the specific cases where an exclusion ground applies or where the 
beneficiary is considered a danger to the security of a Member State or where 
he or she has been convicted of a particularly serious crime .  

For  the  situations  mentioned  above  the  proposal  retains  the  general  principle 
that  applicants’  shall  have  a  right  to  remain  on  the  Member  States’  territory 
until  the time limit  for requesting a court or tribunal  to  be allowed to  remain 
has  expired  and,  where  the  applicant  has  made  such  a  request,  pending  the 
decision  of  the  court  or  tribunal  on  whether  or  not  the  applicant  shall  be 
allowed  to  remain.  However,  by  way  of  exception,  the  new  Article  54(7) 
provides  for  the  possibility  not  to  grant  such  a  right  to  remain  in  case  of  an 
appeal against a decision rejecting a subsequent application, without prejudice 

EN 

18 

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to  the  respect  of  the  principle  of  non-refoulement.  In  these  situations  the 
applicant has already had his applications assessed on the merits at least three 
times – the initial application by the determining authority, at least one level of 
appeal,  and  yet  another  assessment  on  the  merits  of  his/her  subsequent 
application. It is therefore proportionate in these circumstances to allow for the 
return  decision  to  be  enforceable  immediately.  Such  a  possibility  should 
however only be provided subject to the same conditions as in Article 43 (see 
above), with the exception of the one year rule as in any case the appeal of the 
decision on the subsequent application needs to  be made within the deadlines 
set therefore. 

– 

Subsequent applications: In order to discourage abusive or last minute subsequent 
applications,  stronger  rules  are  proposed  for  when  Member  States  can  authorise 
applicants to remain in the case of subsequent applications. 

 

Taken  together  the  rules  explained  above  mean  that  the  following  will  apply 
for subsequent applications: 

 

 

 

A  subsequent  application  has  as  a  general  rule  automatic  suspensive 
effect at the administrative stage. 

By  way of exception, a subsequent  application has no suspensive effect 
at the administrative stage if it is made during the last stages of the return 
procedure to frustrate the removal and it is immediately clear that no new 
elements  have  been  presented.  This  exception  is  only  applicable  within 
one  year  of  the  moment  when  a  decision  has  been  taken  on  the  first 
application  

An appeal against a subsequent application has no automatic suspensive 
effect  ,  but  can  be  requested  by  the  applicant,  and  while  this  request  is 
pending in the Court, the applicant shall have the right to remain 

  Member  States  however  can  derogate  from  this  rule  and  provide,  that 
there is no suspensive effect in the appeal stage, and the applicant has no 
right  to  remain  pending  a  request  to  be  granted  such  a  right  if  certain 
conditions are met as explained above. 

 

A  second,  or  subsequent,  appeal  to  a  subsequent  application  does  not 
have automatic suspensive effect. 

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2016/0224 (COD) 

Amended proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing a common procedure for international protection in the Union and 
repealing Directive 2013/32/EU 

The proposal COM (2016) 467 final for a Regulation of the European Parliament and of the 
Council  establishing  a  common  procedure  for  international  protection  in  the  Union  and 
repealing Directive 2013/32/EU is amended as follows: 

(1) 

The first citation is replaced by the following: 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 78(2)(d) and 79(2)(c) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(2) 

Recital 31 is replaced by the following: 

‘(31) 

(31a) 

In  order  to  guarantee  the  rights  of  the  applicant,  a  decision  concerning  his  or  her 
application  should  be  given  in  writing.  Where  the  decision  does  not  grant 
international  protection,  the  applicant  should  be  given  reasons  in  fact  and  in  law, 
information on the consequences of the decision and the modalities for challenging 
it.  

In order to increase the efficiency of procedures and to reduce the risk of absconding 
and  the  likelihood  of  unauthorised  movements,  there  should  be  no  procedural  gaps 
between  the  issuance  of  a  negative  decision  on  an  application  for  international 
protection and of a return decision. A return decision should immediately be issued 
to  applicants  whose  applications  are  rejected.  Without  prejudice  to  the  right  to  an 
effective remedy, the return decision  should either be part of the negative decision 
on an application for international protection or, if it is a separate act, be issued at the 
same time and together with the negative decision.’ 

(3) 

The following recital is inserted after recital 39: 

‘(39a) 

In the interest of swift and fair procedures for all applicants, whilst also ensuring that 
the stay of applicants who do not qualify for international protection in the Union is 
not  unduly  prolonged,  including  those  who  are  nationals  of  third  countries  exempt 
from the requirement to be in a possession of a visa pursuant to Regulation (EU) No 
2018/1806,  Member  States  should  accelerate  the  examination  of  applications  of 
applicants  who  are  nationals  or,  in  the  case  of  stateless  persons,  formerly  habitual 
residents  of  a  third  country  for  which  the  share  of  decisions  granting  international 
protection is lower than 20% of the total number of decisions for that third country. 
Where  a  significant  change  has  occurred  in  the  third  country  concerned  since  the 

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publication  of  the  relevant  Eurostat  data  and  taking  into  account  the  guidance  note 
pursuant  to  Article  10  of  Regulation  XX/XX  on  the  European  Asylum  Agency,  or 
where  the  applicant  belongs  to  a  specific  category  of  persons  for  whom  the  low 
recognition rate cannot be considered as representative of their protection needs due 
to  a  specific  persecution  ground,  examination  of  the  application  should  not  be 
accelerated.  Cases  where  a  third  country  may  be  considered  as  a  safe  country  of 
origin or a safe third country for the applicant within the meaning of this Regulation 
should  remain  applicable  as  a  separate  ground  for  respectively  the  accelerated 
examination procedure or the inadmissible procedure. 

(4) 

Recital 40 is replaced by the following: 

‘(40)  Many applications for international protection are made at the external border or in a 
transit  zone  of  a  Member  State,  often  by  persons  apprehended  in  connection  with 
unauthorised crossings of the external border or disembarked following a search and 
rescue operation. In order to conduct identification, security and health screening at 
the  external  border  and  direct  the  third-country  nationals  and  stateless  persons 
concerned  to  the  relevant  procedures,  a  screening  is  necessary.  There  should  be 
seamless  and  efficient  links  between  all  stages  of  the  relevant  procedures  for  all 
irregular  arrivals.  After  the  screening,  third-country  nationals  and  stateless  persons 
should be channelled to the appropriate asylum or return procedure, or refused entry. 
A  pre-entry  phase  consisting  of  screening  and  border  procedures  for  asylum  and 
return should therefore be established.’ 

(5) 

The following recitals are inserted after recital (40) : 

‘(40a)  The  purpose  of  the  border  procedure  for  asylum  and  return  should  be  to  quickly 
assess at the external borders whether applications are unfounded or inadmissible and 
to  swiftly  return  those  with  no  right  to  stay,  while  ensuring  that  those  with  well-
founded claims are channelled into the regular procedure and provided quick access 
to  international  protection.  Member  States  should  therefore  be  able  to  require 
applicants  for  international  protection  to  stay  at  the  external  border  or  in  a  transit 
the  admissibility  of  applications.  In  well-defined 
zone 
circumstances, Member States should be able to provide for the examination of the 
merits of an application and, in the event of rejection of the application, for the return 
of the third-country nationals and stateless persons concerned at the external borders.  

in  order  to  assess 

(40b)  Member State should assess applications in a border procedure where the applicant is 
a  danger  to  national  security  or  public  order,  where  the  applicant  has  misled  the 
authorities by presenting false information or documents or by withholding relevant 
information or documents with respect to his or her identity or nationality that could 
have had a negative impact on the decision and where it is likely that the application 
is  unfounded  because  the  applicant  is  of  a  nationality  for  whom  decisions  granting 
international  protection is lower than 20% of the total  number of decisions for that 
third  country.  In  other  cases,  such  as  when  the  applicant  is  from  a  safe  country  of 
origin or a safe third country, the use of the border procedure should be optional for 
the Member States.  

(40c)  When  applying  the  border  procedure  for  the  examination  of  an  application  for 
international  protection,  Member  States  should  ensure 
the  necessary 
arrangements  are  made  to  accommodate  the  applicants  at  or  close  to  the  external 
border  or  transit  zones,  in  accordance  with  Directive  XXX/XXX/EU  [Reception 
Conditions  Directive].  Member  States  may  process  the  applications  at  a  different 
location  at  the  external  border  than  that  where  the  asylum  application  is  made  by 

that 

EN 

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transferring  applicants  to  a  specific  location  at  or  in  the  proximity  of  the  external 
border  of  that  Member  States  where  appropriate  facilities  exist.    Member  States 
should retain discretion in deciding at which specific locations at the external borders 
such  facilities  should  be  set  up.  However,  Member  States  should  seek  to  limit  the 
need for transferring applicants for this purpose, and therefore aim at setting up such 
facilities with sufficient capacity at border crossing points, or sections of the external 
border, where the majority of the number of applications for international protection 
are made, also taking into account the length of the external border and the number 
of border crossing points or transit zones. They should notify the Commission of the 
specific  locations  at  the  external  border,  transit  zones  or  proximity  of  the  external 
border where the border procedures will be carried out.  

(40d) 

In cases where the border procedure is applied and the capacity of the locations at or 
in  proximity  of  the  external  border  as  notified  by  a  Member  State  is  temporarily 
exceeded, Member States may process those applications at another location within 
its territory, for the shortest time possible. 

In case where the use of the border procedure is an obligation, Member States should 
by way of exception not be required to apply it for the examination of applications 
for international protection from nationals of a third country that does not cooperate 
sufficiently on readmission, since a swift return of the persons concerned, following 
rejection of their applications, would be unlikely in that case. The determination of 
whether  a  third  country  is  cooperating  sufficiently  on  readmission  should  be  based 
on the procedures set out in Article 25a of Regulation (EC) No 810/2009. 

(40e)  The  duration  of  the  border  procedure  for  examination  of  applications  for 
international  protection  should  be  as  short  as  possible  while  at  the  same  time 
guaranteeing  a  complete  and  fair  examination  of  the  claims.  It  should  in  any  event 
not exceed 12 weeks. This deadline should be understood as a stand-alone deadline 
for the asylum border procedure, encompassing both the decision on the examination 
of  the  application  as  well  as  the  decision  of  the  first  level  of  appeal,  if  applicable. 
Within this period, Member States are entitled to set the deadline in national law both 
for the administrative and for the appeal stage, but should set them in a way so as to 
ensure  that  the  examination  procedure  is  concluded  and  that  subsequently,  if 
relevant, the decision on the first level of appeal is issued within this maximum 12 
week. After that period, if the Member State nevertheless failed to take the relevant 
decisions, the applicant should in principle be authorised to enter the territory of the 
Member State. Entry into the territory should however not  be  authorised  where the 
applicant has no right to remain, where he or she has not requested to be allowed to 
remain  for  the  purpose  of  an  appeal  procedure,  or  where  a  court  or  tribunal  has 
decided that he or she should  not  be allowed to  remain pending the outcome of an 
appeal procedure. In such cases, to ensure continuity between the asylum procedure 
and  the  return  procedure,  the  return  procedure  should  also  be  carried  out  in  the 
context  of  a  border  procedure  for  a  period  not  exceeding  12  weeks.  This  period 
should  be  counted  starting  from  the  moment  in  which  the  applicant,  third-country 
national or stateless person no longer has a right to remain or is no longer allowed to 
remain. 

(40f)  While  the  border  procedure  for  the  examination  of  an  application  for  international 
protection  can  be  applied  without  recourse  to  detention,  Member  States  should 
nevertheless be able to apply the grounds for detention during the border procedure 
in  accordance  with  the  provisions  of  the  [Reception  Conditions]  Directive  (EU) 

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XXX/XXX  in  order  to  decide  on  the  right  of  the  applicant  to  enter  the  territory.  If 
detention  is  used  during  such  procedure,  the  provisions  on  detention  of  the 
[Reception  Conditions]  Directive  (EU)  XXX/XXX  should  apply,  including  the 
guarantees for detained applicants and the fact that an individual assessment of each 
case is necessary, judicial control and conditions of detention. 

(40g)  When an application is rejected in the context of the border procedure, the applicant, 
third-country national or stateless person concerned should be immediately subject to 
a  return  decision  or,  where  the  conditions  of  Article  14  of  Regulation  (EU)  No 
2016/399  of  the  European  Parliament  and  of  the  Council10  are  met,  to  a  refusal  of 
entry.  To  guarantee  the  equal  treatment  of  all  third-country  nationals  whose 
application has been rejected in the context of the border procedure, where a Member 
State  has  decided  not  to  apply  the  provisions  of  Directive  XXX/XXX/EU  [Return 
Directive] by virtue of Article 2(2), point (a), of that Directive and does not issue a 
return  decision  to  the  third-country  national  concerned,  the  treatment  and  level  of 
protection  of  the  applicant,  third-country  national  or  stateless  person  concerned 
should  be  in  accordance  with  Article  4(4)  of  Directive  XXX/XXX/EU  [Return 
Directive]  and  be  equivalent  to  those  applicable  to  persons  subject  to  a  return 
decision. 

(40h)  When applying the border procedure for carrying out return, certain provisions of the 
[recast  Return  Directive]  should  apply  as  these  regulate  elements  of  the  return 
procedure  that  are  not  determined  by  this  Regulation,  notably  those  on  definitions, 
more favourable provisions,  non-refoulement, best  interests of the child, family life 
and state of health, risk of absconding, obligation to cooperate, period for voluntary 
departure, return decision, removal, postponement of removal, return and removal of 
unaccompanied minors,  entry bans, safeguards pending return, detention, conditions 
of detention, detention of minors and families and emergency situations. To reduce 
the  risk  of  unauthorised  entry  and  movement  of  illegally  staying  third-country 
nationals  subject  to  the  border  procedure  for  carrying  out  return,  a  period  for 
voluntary departure not exceeding 15 days may be granted to illegally staying third-
country nationals, without prejudice for the possibility to voluntarily comply with the 
obligation to return at any moment. 

(40i)  Where  an  applicant,  third-country  national  or  stateless  person  who  was  detained 
during the border procedure for the examination of their application for international 
protection  no  longer  has  a  right  to  remain  and  has  not  been  allowed  to  remain, 
Member States should be able to continue the detention for the purpose of preventing 
entry  into  the  territory  and  carrying  out  the  return  procedure,  respecting  the 
guarantees  and  conditions  for  detention  laid  down  in  Directive  XXX/XXX/EU 
[Return Directive]. An applicant, third-country national or stateless person who was 
not  detained  during  the  border  procedure  for  the  examination  of  an  application  for 
international  protection,  and  who  no  longer  has  a  right  to  remain  and  has  not  been 
allowed to remain, could also be detained if there is a risk of absconding, if he or she 
avoids or hampers return, or if he or she poses a risk to public policy, public security 
or national security. Detention should be for as short a period as possible and should 
not  exceed  the  maximum  duration  of  the  border  procedure  for  carrying  out  return. 
When the illegally staying third-country national does not  return or is  not  removed 

10 

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union 
Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 
077 23.3.2016, p. 1). 

EN 

23 

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within that period and the border procedure for carrying out return ceases to apply, 
the provisions of the [recast Return Directive] should apply. The maximum period of 
detention  set  by  Article  15  of  that  Directive  should  include  the  period  of  detention 
applied during the border procedure for carrying our return.  

(40j) 

It  should  be  possible  for  a  Member  State  to  which  an  applicant  is  relocated  in 
accordance  with  Regulation  (EU)  No  XXX/XXX  [Asylum  and  Migration 
Management Regulation] to examine the application in a border procedure provided 
that  the  applicant  has  not  yet  been  authorised  to  enter  the  territory  of  the  Member 
States  and  the  conditions  for  the  application  of  such  a  procedure  by  the  Member 
State from which the applicant was relocated are met.’ 

(6) 

The following recital is inserted after recital 44: 

‘(44a)  An applicant who lodges a subsequent application at the last minute merely in order 
to delay or frustrate his  or her removal should not be authorised to remain pending 
the finalisation of the decision declaring the application inadmissible in cases where 
it is immediately clear to the determining authority that no new elements have been 
presented  and  there  is  no  risk  of  refoulement  and  provided  that  the  application  is 
made  within  one  year  of  the  decision  by  the  determining  authority  on  the  first 
application.  The  determining  authority  shall  issue  a  decision  under  national  law 
confirming  that  these  criteria  are  fulfilled  in  order  for  the  applicant  not  to  be 
authorised to remain. ’  

(7) 

Recitals 65 and 66 are replaced by the following: 

‘(65) 

(66) 

For an applicant to be able to exercise his or her right to an effective remedy against 
a  decision  rejecting  an  application  for  international  protection,  all  effects  of  the 
return decision should be automatically suspended for as long as the applicant has the 
right to remain or has been allowed to remain on the territory of a Member State. To 
improve  the  effectiveness  of  procedures  at  the  external  border,  while  ensuring  the 
respect of the right to an effective remedy, appeals against decisions taken in the context 
of the border procedure should take place only before a single level of jurisdiction of a 
court or tribunal. 

Applicants should, in principle, have the right to remain on the territory of a Member 
State  until  the  time-limit  for  lodging  an  appeal  before  a  court  or  tribunal  of  first 
instance  expires,  and,  where  such  a  right  is  exercised  within  the  set  time-limit, 
pending  the  outcome  of  the  appeal.  It  is  only  in  the  limited  cases  set  out  in  this 
Regulation, where applications are likely to be unfounded, that the applicant should 
not have an automatic right to remain for the purpose of the appeal.  

(8) 

The following recitals are inserted after recital (66): 

‘(66a) 

In cases where the applicant has no automatic right to remain for the purpose of the 
appeal, a court or tribunal should still be able to allow the applicant to remain on the 
territory  of  the  Member  State  pending  the  outcome  of  the  appeal,  upon  the 
applicant’s request or acting of its own motion. In such cases, applicants should have 
a right to remain until the time-limit for requesting a court or tribunal to be allowed 
to remain has expired and, where the applicant has presented such a request within 
the set time-limit, pending the decision of the competent court or tribunal. In order to 
discourage abusive or last minute subsequent applications, Member States should be 
able to provide in national law that applicants should have no right to remain during 
that period in the case of rejected subsequent applications, with a view to preventing 
further  unfounded  subsequent  applications.  In  the  context  of  the  procedure  for 

EN 

24 

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(66b) 

determining  whether  or  not  the  applicant  should  be  allowed  to  remain  pending  the 
appeal,  the  applicant’s  rights  of  defence  should  be  adequately  guaranteed  by 
providing  him  or  her  with  the  necessary  interpretation  and  legal  assistance. 
Furthermore, the competent court or tribunal should be able to examine the decision 
refusing to grant international protection in terms of facts and points of law. 

In order to ensure effective returns, applicants should not have a right to remain on 
the Member State’s territory at the stage of a second or further level of appeal before 
a  court  or  tribunal  against  a  negative  decision  on  the  application  for  international 
protection,  without  prejudice  to  the  possibility  for  a  court  or  tribunal  to  allow  the 
applicant  to  remain.  Furthermore,  Member  States  should  not  grant  applicants  the 
possibility  to  lodge  a  further  appeal  against  a  first  appeal  decision  in  respect  of  a 
decision taken in a border procedure. 

(66c)  To ensure the consistency of the legal review carried out by a court or tribunal on a 
decision  rejecting  an  application  for  international  protection  and  the  accompanying 
return  decision,  and  with  a  view  to  accelerating  the  examination  of  the  case  and 
reducing the burden on the competent judicial authorities, such decisions should be 
subject to common proceedings before the same court or tribunal. 

(66d) 

In  order  to  ensure  fairness  and  objectivity  in  the  management  of  applications  and 
effectiveness  in  the  common  procedure  for  international  protection,  time-limits 
should be set for the administrative procedure. 

(9) 

[UK- Recital 77] 

(10) 

In Article 4 paragraph 1 the following point is added 

(i) ‘family member’  

(11) 

In Article 26, the following paragraph is added: 

‘3. 
For third-country nationals subject to the screening referred to in Article 3(1) 
of  Regulation  (EU)  XXX/XXX  [Screening  Regulation],  paragraphs  1  and  2  shall 
apply only after the screening has ended.’ 

(12) 

In Article 27, the following paragraphs are added : 

‘5. 
For third-country nationals subject to the screening referred to in Article 3(1) 
of Regulation (EU) No  XXX/XXX [Screening  Regulation], paragraphs  1 to  4 shall 
apply only after the screening has ended. 

6.  Where  biometric  data  could  not  be  taken  during  the  screening  in  accordance 
with  Regulation  (EU)  No  XXX/XXX  [Eurodac  Regulation]  or  where  the  applicant 
was not subject to a screening, the competent authorities shall take the biometric data 
at  the latest  upon the  registration of the application  for international  protection and 
transmit them together with the data referred to in Article 12 (c) to (p) of Regulation 
(EU)  No  XXX/XXX  [Eurodac  Regulation]    to  the  Central  System  and  to  the 
Common Identity Repository  respectively in accordance with that Regulation.’ 

(13) 

The following new Article 35a is inserted: 

‘Article 35a 

Rejection of an application and issuance of a return decision 

Where  an  application  is  rejected  as  inadmissible,  unfounded  or  manifestly  unfounded  with 
regard  to  both  refugee  status  and  subsidiary  protection  status,  or  as  implicitly  or  explicitly 

EN 

25 

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withdrawn, Member States shall issue a return decision that respects Directive XXX/XXX/EU 
[Return  Directive].  The  return  decision  shall  be  issued  as  part  of  the  decision  rejecting  the 
application  for  international  protection  or,  in  a  separate  act.  Where  the  return  decision  is 
issued  as  a  separate  act,  it  shall  be  issued  at  the  same  time  and  together  with  the  decision 
rejecting the application for international protection.’ 

(14) 

Article 40 is amended as follows: 

(a) 

in paragraph 1 the following point is added: 

the  applicant  is  of  a  nationality  or,  in  the  case  of  stateless  persons,  a  former 
‘(i) 
habitual  resident  of  a  third  country  for  which  the  proportion  of  decisions  by  the 
determining  authority  granting  international  protection  is,  according  to  the  latest 
available  yearly  Union-wide  average  Eurostat  data,  20%  or  lower,  unless  a 
significant change has occurred in the third country concerned since the publication 
of  the  relevant  Eurostat  data  or  the  applicant  belongs  to  a  category  of  persons  for 
whom  the  proportion  of  20%  or  lower  cannot  be  considered  as  representative  for 
their protection needs;’ 

(b) 

in paragraph 5, the following point is added: 

‘(c) 
the  applicant  is  of  a  nationality  or,  in  the  case  of  stateless  persons,  a  former 
habitual residence of a third country for which the proportion of decisions granting 
international  protection  by  the  determining  authority  is,  according  to  the  latest 
available  yearly  Union-wide  average  Eurostat  data,  20%  or  lower,  unless  a 
significant change has occurred in the third country concerned since the publication 
of  the  relevant  Eurostat  data  or  the  applicant  belongs  to  a  category  of  persons  for 
whom  the  proportion  of  20%  or  lower  cannot  be  considered  as  representative  for 
their protection needs;’ 

(15) 

Article 41 is replaced by the following: 

‘Article 41 

1. 

Border procedure for the examination of applications for international protection 

Following  the  screening  procedure  carried  out  in  accordance  with  Regulation  (EU) 
No  XXX/XXX  [Screening  Regulation],  and  provided  that  the  applicant  has  not  yet 
been authorised to enter Member States’ territory, a Member State may examine an 
application in  a border procedure where that  application has been made by  a third-
country national or stateless person who does not fulfil the conditions for entry in the 
territory of a Member State as set out in Article 6 of Regulation (EU) 2016/399. The 
border procedure may take place: 

(a) 

(b) 

(c) 

(d) 

following  an  application  made  at  an  external  border  crossing  point  or  in  a 
transit zone; 

following  apprehension  in  connection  with  an  unauthorised  crossing  of  the 
external border; 

following disembarkation in the territory of a Member State after a search and 
rescue operation; 

following  relocation  in  accordance  with  Article  [X]  of  Regulation  (EU)  No 
XXX/XXX [Ex Dublin Regulation].  

2. 

Where a border procedure is applied, decisions may be taken on the following:  

EN 

26 

  EN 

 
3. 

4. 

5. 

6. 

7. 

8. 

9. 

(a) 

(b) 

the inadmissibility of an application in accordance with Article 36;  

the  merits  of  an  application  in  an  accelerated  examination  procedure  in  the 
cases referred to in Article 40(1). 

Member  State  shall  examine  an  application  in  a  border  procedure  in  the  cases 
referred to in paragraph 1 where the circumstances referred to in Article 40(1), point 
(c), (f) or (i), apply. 

A  Member  State  may  decide  not  to  apply  paragraph  3  to  nationals  or  stateless 
persons who are habitual residents of third countries for which that Member State has 
submitted  a  notification  to  the  Commission  in  accordance  with  Article  25a(3)  of 
Regulation (EC) No 810/2009. 

Where,  following  the  examination  carried  out  in  accordance  with  Article  25a(4)  of 
Regulation  (EC)  No 810/2009,  the  Commission  considers  that  the  third  country  is 
cooperating  sufficiently,  the  Member  State  shall  again  apply  the  provisions  of 
paragraph 3.  

Where the Commission considers that the third country concerned is not cooperating 
sufficiently, the Member State may continue not to apply paragraph 3: 

(a) 

until  an  implementing  act  previously  adopted  by  the  Council  in  accordance 
with Article 25a(5) of Regulation (EC) No 810/2009 is repealed or amended; 

(b)  where  the  Commission  does  not  consider  that  action  is  needed  in  accordance 
with  Article  25a  of  Regulation  (EC)  No 810/2009,  until  the  Commission 
reports  in  its  assessment  carried  out  in  accordance  with  paragraph  2  of  that 
Article  that  there  are  substantive  changes  in  the  cooperation  of  the  third 
country concerned.  

The border procedure may only be applied to unaccompanied minors and to minors 
below the age of 12 and their family members in the cases referred to in Article 40(5) 
(b). 

Applicants  subject  to  the  border  procedure  shall  not  be  authorised  to  enter  the 
territory of the Member State, without prejudice to paragraphs 9 and 11. 

When applying the border procedure, Member States may carry out the procedure for 
determining  the  Member  State  responsible  for  examining  the  application  as  laid 
down  in  Regulation  (EU)  No  XXX/XXX  [Regulation  on  Asylum  and  Migration 
Management], without prejudice to the deadlines established in paragraph 11 

Where the conditions for applying the border procedure are met in the Member State 
from  which  the  applicant  is  relocated,  a  border  procedure  may  be  applied  by  the 
Member State to  which  the applicant is  relocated in  accordance with  Article [x] of 
Regulation  EU 
[Regulation  on  Asylum  and  Migration 
Management], including in the cases referred to in paragraph 1, point (d).  

(No)  XXX/XXX 

Member  States  shall  not  apply  or  shall  cease  to  apply  the  border  procedure  at  any 
stage of the procedure where:  

(a) 

the  determining  authority  considers  that  the  grounds  for  rejecting  an 
application  as  inadmissible  or  for  applying  the  accelerated  examination 
procedure are not applicable or no longer applicable; 

(b) 

the necessary support cannot be provided to applicants with special procedural 
needs in the locations referred to in paragraph 14; 

EN 

27 

  EN 

 
10. 

11. 

(c) 

there are medical reasons for not applying the border procedure,; 

(d)  detention  is  used  in  individual  cases  and  the  guarantees  and  conditions  for 
detention  as  provided  for  in  Articles  8  to  11  of  Directive  XXX/XXX/EU 
[Reception Conditions Directive] are not met or no longer met and the border 
procedure cannot be applied to the applicant concerned without detention.  

In  such  cases,  the  competent  authority  shall  authorise  the  applicant  to  enter  the 
territory of the Member State. 

By  way  of  derogation  from  Article  28  of  this  Regulation,  applications  subject  to  a 
border procedure shall be lodged no later than five days from registration for the first 
time or, following a relocation in accordance with Article [x] of Regulation EU (No) 
XXX/XXX  [Regulation  on  Asylum  and  Migration  Management],  five  days  from 
when  the  applicant  arrives  in  the  Member  State  responsible  following  a  transfer 
pursuant to Article 56(1), point (e), of that Regulation.  

The border procedure shall be as short as possible while at the same time enabling a 
complete and fair examination of the claims. It shall encompass the decision referred 
to  in  paragraph  2  and  3  and  any  decision  on  an  appeal  if  applicable  and  shall  be 
completed within 12 weeks from  when the application is  registered.  Following that 
period, the applicant shall be authorised to enter the Member State’s territory except 
when Article 41a(1) is applicable.  

By way of derogation from the time limits set in Articles 34, 40(2) and 55, Member 
States shall lay down provisions on the duration of the examination procedure and of 
the  appeal  procedure  which  ensure that,  in  case  of  an  appeal  against  a  decision 
rejecting  an  application  in  the  framework  of  the  border  procedure,  the  decision  on 
such appeal is issued within 12 weeks from when the application is registered. 

12. 

By way of derogation from  paragraph 11 of this Article, the applicant shall not be 
authorised to enter the Member State’s territory where: 

(a) 

(b) 

(c) 

the  applicant’s  right  to  remain  has  been  revoked  in  accordance  with  Article 
9(3), point (a);  

the applicant has no right to remain in accordance with Article 54 and has not 
requested  to  be  allowed  to  remain  for  the  purposes  of  an  appeal  procedure 
within the applicable time-limit;  

the applicant has no right to remain in accordance with Article 54 and a court 
or tribunal has decided that the applicant is not to be allowed to remain pending 
the outcome of an appeal procedure.  

In  such  cases,  where  the  applicant  has  been  subject  to  a  return  decision  issued  in 
accordance with the Directive XXX/XXX/EU [Return Directive] or a refusal of entry 
in accordance with Article 14 of Regulation (EU) 2016/399, Article 41a shall apply.  

During the examination of applications subject to a border procedure, the applicants 
shall be kept at or in proximity to the external border or transit zones.  Each Member 
State shall notify to the Commission, [two months after the date of the application of 
this Regulation] at the latest, the locations where the border procedure will be carried 
out, at the external borders, in the proximity to the external border or transit zones, 
including when applying paragraph 3 and ensure that the capacity of those locations 
is  sufficient  to  process  the  applications  covered  by  that  paragraph.  Any  changes  in 
the identification of the locations at which the border procedure is applied, shall be 
notified to the Commission two months in advance of the changes taking effect. 

13. 

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28 

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14. 

In situations where the capacity of the locations notified by Member States pursuant 
to  paragraph  14  is  temporarily  insufficient  to  process  the  applicants  covered  by 
paragraph 3, Member States may designate other locations within the territory of the 
Member  State  and  upon  notification  to  the  Commission  accommodate  applicants 
there, on a temporary basis and for the shortest time necessary. 

(16) 

The following new Article 41a is inserted: 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

‘Article 41a 

Border procedure for carrying out return 

Third-country  nationals  and  stateless  persons  whose  application  is  rejected  in  the 
context of the procedure referred to in Article 41 shall not be authorised to enter the 
territory of the Member State. 

Persons referred to in paragraph 1 shall be kept for a period not exceeding 12 weeks 
in  locations  at  or  in  proximity  to  the  external  border  or  transit  zones;  where  a 
Member State cannot accommodate them in those locations, it can resort to the use of 
other  locations  within  its  territory.  The  12-week  period  shall  start  from  when  the 
applicant,  third-country  national  or stateless  person no longer has  a right to  remain 
and is not allowed to remain.   

For the purposes of this Article, Article 3, Article 4(1), Articles 5 to 7, Article 8(1) to 
(5), Article 9(2) to (4), Articles 10 to 13, Article 15, Article 17(1), Article 18(2) to 
(4) and Articles 19 to 21 of Directive XXX/XXX/EU [recast Return Directive] shall 
apply. 

Without  prejudice  to  the  possibility  to  return  voluntarily  at  any  moment,  persons 
referred  to  in  paragraph  1  may  be  granted  a  period  for  voluntary  departure  not 
exceeding 15 days.  

Persons  referred  to  in  paragraph  1  who  have  been  detained  during  the  procedure 
referred  to  in  Article  41  and  who  no  longer  have  a  right  to  remain  and  are  not 
allowed to  remain may  continue to  be detained  for the purpose of preventing entry 
into  the  territory  of  the  Member  State,  preparing  the  return  or  carrying  out  the 
removal process.  

Persons referred to in paragraph 1 who no longer have a right to remain and are not 
allowed  to  remain,  and  who  were  not  detained  during  the  procedure  referred  to  in 
Article  41,  may  be  detained  if  there  is  a  risk  of  absconding  within  the  meaning  of 
Directive XXX/XXX/EU [Return Directive], if they avoid or hamper the preparation 
of return or the removal process or they pose a risk to public policy, public security 
or national security.  

Detention shall be maintained for  as short  a period as possible, as  long as removal 
arrangements  are  in  progress  and  executed  with  due  diligence.  The  period  of 
detention shall not exceed the period referred to in paragraph 2 and shall be included 
in  the  maximum  periods  of  detention  set  in  Article  15  (5)  and  (6)  of  Directive 
XXX/XXX/EU [Return Directive].  

Member  States  that,  following  the  rejection  of  an  application  in  the  context  of  the 
procedure referred to in Article 41, issue a refusal of entry in accordance with Article 
14  of  Regulation  (EU)  2016/399,  and  that  have  decided  not  to  apply  Directive 

EN 

29 

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XXX/XXX/EU [Return Directive] in such cases pursuant to Article 2(2), point (a), of 
that  Directive,  shall  ensure  that  the  treatment  and  level  of  protection  of  the  third-
country nationals and stateless persons subject to a refusal of entry are in accordance 
with Article 4(4) of Directive XXX/XXX/EU [Return Directive] and are equivalent 
to the ones set out in paragraphs 2, 4 and 7 of this Article.’ 

(17) 

Article 43 is amended as follows: 

‘(a) Point (a) is deleted. 

The following point (c) is added in Article 43: 

(c) a first subsequent application has been lodged within one year of the decision of 
the determining authority on the first application merely in order to delay or frustrate 
the enforcement of a return decision which would result in the applicant’s imminent 
removal  from  the  Member  State,  pending  the  finalisation  of  the  decision  declaring 
that  application  inadmissible  in  cases  where  it  is  immediately  clear  to  the 
determining authority that no new elements have been presented in accordance with 
Article 42(4)’  

(18) 

Articles 53 and 54 are replaced by the following: 

‘Article 53 

The right to an effective remedy 

1. 

Applicants  shall  have  the  right  to  an  effective  remedy  before  a  court  or  tribunal 
against: 

(a) 

(b) 

a decision rejecting an application as inadmissible;  

a decision rejecting an application as unfounded in relation to both refugee and 
subsidiary protection status; 

(c) 

a decision rejecting an application as implicitly withdrawn; 

(d) 

a decision withdrawing international protection; 

(e) 

a return decision. 

2. 

3. 

Return decisions shall be appealed before the same court or tribunal and within the 
same judicial proceedings and the same time-limits as decisions referred to in points 
(a), (b), (c) and (d).  

Persons  recognised  as  eligible  for  subsidiary  protection  shall  have  the  right  to  an 
effective  remedy  against  a  decision  considering  their  application  unfounded  in 
relation  to  refugee  status.  Where  subsidiary  protection  status  granted  by  a  Member 
State offers the same rights and benefits as refugee status under Union and national 
law,  the  appeal  against  that  decision  in  that  Member  State  may  be  considered  as 
inadmissible where provided for in national law. 

An effective remedy within the meaning of paragraph 1 shall provide for a full and 
ex nunc examination of both facts and points of law, at least before a court or tribunal 
of  first  instance,  including,  where  applicable,  an  examination  of  the  international 
protection  needs  pursuant  to  Regulation  (EU)  No  XXX/XXX  [Qualification 
Regulation]. 

EN 

30 

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4. 

5. 

6. 

7. 

8. 

9. 

1. 

2. 

3. 

Applicants shall be provided with interpretation for the purpose of a hearing before 
the  competent  court  or  tribunal  where  such  a  hearing  takes  place  and  where 
appropriate communication cannot otherwise be ensured. 

Where the court  or tribunal  considers it necessary, it shall  ensure the translation of 
relevant documents that have not already been translated in accordance with Article 
33(4).  Alternatively,  translations  of  those  relevant  documents  may  be  provided  by 
other entities and paid for from public funds in accordance with national law. 

If  the  documents  are  not  submitted  in  time  for  the  court  or  tribunal  to  ensure  their 
translation, the court or tribunal may refuse to take those documents into account if 
they are not accompanied by a translation provided by the applicant. 

Member  States  shall  lay  down  the  following  time-limits  in  their  national  law  for 
applicants to lodge appeals against the decisions referred to in paragraph 1: 

(a) 

at  least  one  week  in  the  case  of  a  decision  rejecting  an  application  as 
inadmissible,  as  implicitly  withdrawn  or  as  unfounded  if  at  the  time  of  the 
decision any of the circumstances listed in Article 40(1) or (5) apply; 

(b)  between a minimum of two weeks and a maximum of two months in all other 

cases. 

The time-limits referred to in paragraph 7 shall start to run from the date when the 
decision  of  the  determining  authority  is  notified  to  the  applicant  or  his  or  her 
representative or legal adviser. The procedure for notification shall be laid down in 
national law. 

Member  States  shall  provide  for  only  one  level  of  appeal  in  relation  to  a  decision 
taken in the context of the border procedure. 

Article 54 

Suspensive effect of appeal 

The  effects  of  a  return  decision  shall  be  automatically  suspended  for  as  long  as  an 
applicant  has  a  right  to  remain  or  is  allowed  to  remain  in  accordance  with  this 
Article. 

Applicants shall have the right to remain on the territory of the Member States until 
the  time-limit  within  which  to  exercise  their  right  to  an  effective  remedy  before  a 
court  or  tribunal  of  first  instance  has  expired  and,  where  such  a  right  has  been 
exercised within the time-limit, pending the outcome of the remedy. 

The applicant  shall not  have the right  to  remain  pursuant  to  paragraph 2 where the 
competent authority has taken one of the following decisions: 

(a) 

(b) 

a decision which rejects an application as unfounded or manifestly unfounded 
if  at  the  time  of  the  decision  any  of  the  circumstances  listed  in  Article  40(1) 
and (5) apply [including safe country  of origin] or in  the cases subject  to the 
border procedure; 

a  decision  which  rejects  an  application  as  inadmissible  pursuant  to  Article 
36(1)(a) [first country of asylum] or (c) [subsequent applications without new 
elements]; 

(c) 

a decision which rejects an application as implicitly withdrawn; 

EN 

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(d) 

(e) 

a  decision  which  rejects  a  subsequent  application  as  unfounded  or  manifestly 
unfounded; 

to  withdraw 

a  decision 
in  accordance  with 
Article 14(1), points (b), (d) and (e), and Article 20(1), point (b), of Regulation 
No XXX/XXX (Qualification Regulation). 

international  protection 

4. 

In  the  cases  referred  to  in  paragraph  3,  a  court  or  tribunal  shall  have  the  power  to 
decide, following an examination of both facts and points of law, whether or not the 
applicant  shall  be allowed to  remain on the territory of the Member States pending 
the  outcome  of  the  remedy  upon  the  applicant’s  request.  The  competent  court  or 
tribunal may under national law have the power to decide on this matter ex officio. 

5. 

For the purpose of paragraph 4, the following conditions shall apply: 

(a) 

(b) 

the applicant shall have a time-limit of at least 5 days from the date when the 
decision  is  notified  to  him  or  her  to  request  to  be  allowed  to  remain  on  the 
territory pending the outcome of the remedy; 

the  applicant  shall  be  provided  with  interpretation  in  the  event  of  a  hearing 
before  the  competent  court  or  tribunal,  where  appropriate  communication 
cannot otherwise be ensured; 

(c) 

the  applicant  shall  be  provided,  upon  request,  with  free  legal  assistance  and 
representation in accordance with Article 15(4) and (5); 

(d) 

the applicant shall have a right to remain:  

(i) 

until  the  time-limit  for  requesting  a  court  or  tribunal  to  be  allowed  to 
remain has expired; 

(ii)  where the applicant has requested to be allowed to remain within the set 
time-limit, pending the decision of the court or tribunal on whether or not 
the applicant shall be allowed remain on the territory. 

6. 

7. 

In cases of subsequent applications, by way of derogation from paragraph 6, point (d) 
of  this  Article,  Member  States  may  provide  in  national  law  that  the  applicant  shall 
not have a right to remain, without prejudice to the respect of the principle of  non-
refoulement,  if  the  appeal  has  been  made  merely  in  order  to  delay  or  frustrate  the 
enforcement  of  a  return  decision  which  would  result  in  the  applicant’s  imminent 
removal from the Member State, in cases where it is immediately clear to the court 
that no new elements have been presented in accordance with Article 42(4). 

An  applicant  who  lodges  a  further  appeal  against  a  first  or  subsequent  appeal 
decision  shall  not  have  a  right  to  remain  on  the  territory  of  the  Member  State, 
without  prejudice  to  the  possibility  for  a  court  or  tribunal  to  allow  the  applicant  to 
remain upon the applicant’s request or acting ex officio.’ 

EN 

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