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MEMO/04/98

Brussels, 28 April 2004

Justice and Home Affairs Council - Analysis of the Asylum Procedures Directive

The Asylum Procedures Directive will be central to the political discussion at the next JHA Council in Luxembourg on 29 April. The Commission believes that reaching political agreement on this text, within the 5 year deadline set by the Treaty, is of the utmost importance to complete the first stage of the Common European Asylum System as called for by the Tampere European Council in 1999. Together with the adoption of the Qualification Directive, the formal adoption of the Asylum Procedures Directive, after re-consultation of the European Parliament, will pave the way for future developments in this area under a new institutional framework which will include co-decision with the European Parliament and qualified majority voting in the Council.

Commission's position

The Commission endorses the general approach of the Council on the Asylum Procedures Directive. This Directive is the final building block of the first stage of the Common European Asylum System ('minimum standards legislation'). The Directive, once adopted and after reconsultation of the European Parliament constitutes, together with the Qualification Directive, the heart of the system.

Agreement will open the way to the second stage of the Common European Asylum System and allow further development in a new institutional framework. Future legislation in this area will include co-decision with the European Parliament and allow for Qualified Majority Voting in the Council.

The Commission is satisfied that the standards agreed in the Directive are consistent with international obligations, notably the Refugee Convention and the European Convention on Human Rights. The European Court of Justice ultimately will rule on the implementation of these standards in Member States.

The level of ambition shown by Member States in the text to be agreed is not as high as the Commission envisaged when it presented the Amended Proposal. Clearly, this is a consequence of the unanimity requirement and the sensitivity of asylum issues in many Member States. However the Directive will add significant value and contribute to a level playing field in the area of asylum in the 25 Member States. This will be the basis for mutual confidence in Member States' systems in the EU single asylum space where only one Member State is responsible for a particular application.

Key outline of the positive points of the Directive

The Directive will ensure that throughout the EU, all procedures at first instance are subject to the same minimum standards. Accelerated and regular procedures provide the same safeguards for applicants: comprehensive information about the procedure at the start of the process, access to legal assistance, the possibility of an interview and a motivated decision in writing by an authority qualified in refugee law.

The Directive seeks to harmonise as much as possible particular national measures to speed up the examination of asylum applications. The harmonised measures are both fair and firm. The directive introduces a number of key guarantees, while enabling Member States to deal efficiently with undeserving claims. Thus, the Directive also enhances the capacity of Member States' asylum authorities to decide quickly on the applications of persons who legitimately seek refugee protection in the EU.

The Directive will ensure that all negative decisions on asylum applications in the EU are subject to judicial scrutiny. Member States will be obliged to provide the right to an effective remedy before a court or tribunal reflecting the case law of the European Court of Justice.

Member States can provide lower safeguards only in three very specific situations defined in the Directive:

  • Where an applicant arrives at the border and makes an application which can be considered unfounded within four weeks;

  • Where an applicant makes, after a previous procedure, a new application without bringing forward any new relevant facts,

  • Where the applicant could have asked for asylum in a third country which is considered safe by a Decision of the Council because the third country fully respects the Refugee Convention and the European Convention of Human Rights

Main discussion topics

  • A level of meaningful harmonisation has been achieved in Chapter II, which sets out the basic principles and guarantees for conducting asylum procedures. Particularly important provisions are Article 7 (the requirements for the examination of applications) and Article 8 (the requirements for a decision taken by the determining authority). These are key standards which are fully harmonised at the most crucial stage of the asylum process.

  • The Directive introduces EU wide the right to be invited to an interview (Articles 10 -12). There are exceptions but these are limited and reasonable. There is an exception for cases when authorities can take a positive decision without an interview. This speeds up the decision making process for genuine refugees. On the other hand, there are also exceptions for obviously unfounded cases, which will help the competent authorities in Member States to focus their resources on more deserving cases.

  • The Directive encourages Member States' authorities to take decisions on asylum applications as soon as possible, particularly in well-founded cases. Chapter III (Article 23) provides that Member States shall ensure that the procedure is concluded "as soon as possible, without prejudice to an adequate and complete examination". The text requires that when no decision can be taken within six months that Member States should either automatically inform the applicant of the delay or give him information on the expected time frame, upon his request.

  • The Directive exhaustively lists the cases that Member States can consider as inadmissible and considers these as exceptions to the rule of full individual examination into the question whether someone is a refugee or not (Article 25). Where Member States are not required to examine whether an applicant qualifies as a refugee in accordance with the Qualification Directive, an application can be considered inadmissible.

  • While the approach to harmonisation of the safe third country concept (Article 27) is not at the level which might have been achieved, it is important to underline a key safeguard in the Directive. The whole applicability of the third country concept stands or falls with article 27 (4) which regulates the need for admission on the territory of the alleged safe third country. If the third country concerned doesn't consent to the application of the concept then the MS concerned is still obliged to process the application in full accordance with standards of this Directive.

  • On the safe country of origin concept (Articles 30, 30A, 30B, ANNEX II), the approach taken does not encourage the approximation of decision practices. However, in the main these national lists have been harmonised in that there is an obligation for MS to meet the same criteria as for the common list.

  • On the super safe countries concept (Article 35A) a fairly balanced text has been found. While there is no obligation to examine an application, the approach is restricted to very specific cases. First, the criteria for designating third countries as super safe countries are set at a high level (full observance of the Geneva Convention, full respect of all the human rights in the European Convention on Human Rights). Secondly, this approach can, by definition, only be applied to States party to the European Convention on Human Rights. Thirdly, the Council must agree that the countries fulfil the criteria on the basis of a proposal of the Commission. Lastly, the Joint Statement Commission Council further underlines the limited application of this concept by making a reference to a particular relationship between the EU and the third country concerned.

  • The introduction of the notion of effective remedy will prove to be a very significant element in the completion of this first stage of the Common European Asylum System. For the first time all asylum decisions in the systems of 25 countries in the EU will be subject to judicial scrutiny. This is a signal to the rest of the continent and indeed the world.

  • On the right to remain pending appeal (suspensive effect), it is clear that this message on effective remedy will have a real impact on national judges and later the ECJ and it is difficult to believe that a remedy will be considered effective by them if it does not allow applicants with an arguable claim to remain in the MS pending the appeal.

  • The Directive does contain a number of restrictive, anti-abuse measures. In that sense it reflects the daily reality MS are faced with. For example, the option of a medical examination to determine the age of alleged minors is related to the practice of non-minors claiming to be minors in order to access preferential treatment. An EU asylum policy must be realistic and also deal with these aspects.

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