Brussels, 19 June 2002
Adoption of a modified proposal on asylum procedures
The European Commission has adopted a modified proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status. The aim of this measure is to introduce a minimum level playing field in the European Community in the short term. For this purpose, it introduces both guarantees for a fair procedure and mechanisms and tools for an efficient procedure. It is a first step towards the objective set by the European Council at Tampere, namely a common procedure. The proposal consists of minimum standards and does not require Member States to apply uniform procedures. Member States retain their national systems, provided they accept certain standards and requirements with respect to the competent authorities and the relevant procedures.
Minimum standards on asylum procedures are part of a set of measures to build the Common European Asylum System. The 1999 Tampere European Council decided that this should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers and the approximation of rules on the recognition and content of the refugee status. This should be supplemented with measures or subsidiary forms of protection offering an appropriate status to any person in need of such protection. In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union.
Changes to the first proposal
- In order to help Member States swiftly process asylum applications and recognize applicants that are in need of protection in accordance with the Geneva Convention, the first proposal made provision for Member States to operate certain specific procedures for inadmissible and manifestly unfounded cases. Such procedures could enable Member States to decide, inter alia on « safe third country » and « safe country of origin » cases.
- The modified proposal adds four new key features to this approach:
- Additional categories of cases can be processed under an accelerated procedure as manifestly unfounded and inadmissible.
- A specific procedure introduces a rapid preliminary examination of subsequent applications ('repeat applications').
- The possibility is introduced to maintain national procedures to decide at the border on the entry of applicants for asylum, provided certain guarantees are laid down in national legislation by the time of adoption of this proposal.
- The possibility is introduced to detain applicants for asylum where such detention is necessary for a quick decision to be made, provided detention is limited to 2 weeks.
Member States can operate accelerated procedures to deal with specific categories identified in the proposal (manifestly unfounded, inadmissible cases, subsequent applications, applications lodged at the border).
The proposal aims to establish a common minimum level of procedural fairness in the national systems of the Member States. This may help avoid secondary movements. Changes have been made in a number of provisions.
- In the first proposal each applicant for asylum coming to the EU would in principle have the opportunity to present his case in a personal interview before a first instance decision is taken by the authorities. He or she would also have the right to contact a legal adviser or counsellor during this phase of the procedure. However, only in the regular procedure Member States would be obliged to allow the adviser to attend the personal interview of his or her client.
- The modified proposal confirms the principle of an opportunity to have a personal interview for each applicant, but, upon request of the Council, lists more clearly the circumstances under which Member States can refrain from inviting an applicant for an interview (for instance where the applicant is unfit or unable to be interviewed due to lasting circumstances beyond his control or where the applicant has, without good reasons, not complied with invitations to appear). These exceptions are based on daily practice in Member States. Moreover, the modified proposal adds the right of each applicant to have timely access to the transcript of the personal interview on which the decision on his/her case is based. Finally, it provides the legal adviser shall have access to the file of his or her client applying for a asylum and may attend the personal interview with his or her client in all procedures and not just in the regular procedure.
Standards on appeal procedures
Changes have been made to the number and type of appeal procedures.
- The first proposal laid down a uniform institutional model. Its basic premises were: (a) at least one appeal before a judicial body (either second or final instance); (b) at least one appeal on facts and points of law before a judicial body (either second or final instance); (c) at least the possibility of a further appeal to an Appellate Court to ensure uniformity of law. Within this structure a number of modalities could be chosen.
- The modified proposal simplifies the approach. A basic principle is introduced : Member States shall ensure that applicants for asylum have the right to an effective remedy of a decision taken on their application for asylum before a court of law. This standard is in accordance with caselaw of the European Court of Justice and with the Charter of Fundamental Rights of the European Union.
Moreover, a new approach is proposed on the consequences of an appeal lodged by the applicant for his right to stay in the territory or at the border of the Member State pending the outcome of his or her appeal.
- In the first proposal appeal had in principle suspensive effect in all cases, thus allowing the applicant to stay pending the outcome of the appeal, except in a limited number of cases listed explicitly in the proposal.
- In the modified proposal a distinction is introduced between the regular and the accelerated procedure. In the regular procedure appeal should have in principle suspensive effect, but Member States may derogate by virtue of laws or regulations in force on the date of adoption of this Directive. This "standstill provision" means that it is recognised that, while at the time of adoption of this proposal, differences are acceptable, but that, in the long run, the principle should become practice in all Member States. In the accelerated procedure, Member States may have a non-suspensive appeal.
Shortlist of some key features that remained intact
- The obligation for Member States to inform an applicant for asylum of the procedure to be followed and of their rights and obligations during the procedure;
- The obligation that all applications are examined and decisions are taken individually, objectively and impartially;
- Additional specific procedural guarantees for unaccompanied minors. A legal guardian or adviser must be appointed to assist and represent an unaccompanied minor with respect to the examination of his application.
- The obligation to allow the Office of the United Nations High Commissioner for Refugees (UNHCR) to have access to applicants, including those in detention and in airport transit zones;
- The obligation to ensure that the responsible authority in a Member State takes a decision in the accelerated procedure within a certain time limit (3 months) ;
- The general approach to the issue of 'safe country' principles (allowing Member States that use 'lists' and those that do not, to maintain their respective approaches, but within the context of a common definition of 'safe country of origin' and 'safe third country').
Article 63 (1) (d) EC Treaty requires the Council to adopt before May 2004 minimum standards on procedures for granting and withdrawing refugee status.
In September 2000 the Commission brought forward the first proposal(1). The European Parliament adopted a Resolution on the proposal on 20 September 2001(2). Following negotiations at expert level, the Justice and Home Affairs Council of the European Union adopted Conclusions on 7/8 December 2001 to amend the proposal. At the Laeken summit the European Council requested the Commission to bring forward a modified proposal.
Other measures on asylum policy
The Council reached a political agreement on 3 April 2001, on a Council Directive on minimum standards on the reception of applicants for asylum in Member States.
In addition to the proposals for the above mentioned acts approved by the Council, the Commission has adopted:
- On 22 November 2000, a Communication on a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union (COM (2000) 755 final).
- On 26 July 2001 a Proposal for a Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national
- On 12 September 2001 a Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection (COM (2001) 510 final).
- On 28 November 2001 a Communication to the Council and the European Parliament on the common asylum policy, introducing an open co-ordination method (COM (2001 710 final).
- On 5 December 2001 a working document about the relationship between safeguarding internal security and complying with international protection obligations and instruments (COM (2001) 743 final).
(1) COM(2000)578 final, OJ C 62 E, 27 February 2001, 231
(2) OJ C 77E, 28 March 2002, 94