Explanatory Memorandum to COM(2011)319 - Common procedures for granting and withdrawing international protection status (Recast) Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common procedures for granting and withdrawing international protection status (Recast) - Main contents
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| dossier | COM(2011)319 - Common procedures for granting and withdrawing international protection status (Recast) Amended proposal for a DIRECTIVE OF ... |
|---|---|
| source | COM(2011)319  |
| date | 01-06-2011 |
As announced in the Policy Plan on Asylum i, on 21 October 2009, the Commission presented a proposal amending Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status i (hereafter – the Asylum Procedures Directive).
The proposal was prepared on the basis of the evaluation of the application of the current Directive in Member States. It also incorporated the results of a wide consultation process with Member States, the United Nations High Commissioner for Refugees, non-governmental organisations and other relevant stakeholders. The information about the implementation of the current Directive was subsequently consolidated as an Evaluation Report i, published in September 2009, whose conclusions further reinforced the case behind the proposal.
On 6 April 2011, the European Parliament adopted a first reading position on the Commission proposal which generally supported the proposed amendments.
The proposal was also discussed in the Council, mainly under the Spanish Presidency of 2010. Discussions were however difficult and the Council was unable to reach a position.
By presenting the modified proposal, the Commission intends to use its right of initiative to boost the work to achieve a true Common European Asylum System which will benefit Member States and refugees alike. The Commission has a political responsibility to provide real opportunities so that the Union respects its commitment set out in the Stockholm Programme to achieve the Common European Asylum System by 2012. The adoption of the amended Long Term Residence Directive which covers beneficiaries of international protection gave a strong impetus towards this direction.
A common asylum procedure should be fast and fair. To achieve these objectives, the Commission has continued to gather knowledge on how to consolidate the best national practices and assemble them into a system that is coherent and easy to implement across the Union. The modified proposal brings together the additional knowledge and experience built up during the discussions on the previous proposal.
The system proposed in the modified proposal is both efficient and protective. It is cost-effective and helps tackle potential abusive claims. It guarantees that applications will be treated similarly in all Member States. It fully respects fundamental rights and the related developing case-law, thus also helping ensure it can withstand challenge before the courts. At the same time, it is flexible enough to accommodate the particularities of national legal systems. The rules that compose it are clarified and simplified to ensure effective implementation.
The modified proposal should be viewed together with the modified proposal on the Reception Conditions Directive. That proposal inter alia aims to ensure better and more harmonised reception standards for asylum seekers across the Union.
The modified proposal also relates to the Regulation establishing the European Asylum Support Office (EASO) adopted on 19 May 2010. Now that the EASO has started its activities, a more specific role can be foreseen for it to support Member States in a more efficient implementation of common rules.
Contents
- 1.2. General context
- 1.3. Consistency with other policies and objectives of the Union
- 2. Consultation of Interested Parties
- 3. Legal Elements of the Proposal 3.1. Summary of the proposed action
- 3.1.1. Making implementation easier for Member States
- 3.1.2. Better addressing potential abuse
- 3.1.4. Guaranteeing access to protection
- 3.1.5. Clear rules on repeated applications
- 3.1.6. Increased coherence with other instruments of the EU asylum acquis
- 3.2. Legal basis
- 3.3. Territorial application
- 3.4. Subsidiarity principle
- 3.5. Proportionality principle
- 3.6. Impact on fundamental rights
The 2009 proposal and the present modified proposal are part of a legislative package aiming to establish a Common European Asylum System (CEAS).
In particular, in 2008, together with the proposal amending the Reception Conditions Directive, the Commission also adopted proposals amending the Dublin and EURODAC Regulations. In 2009, the Commission adopted proposals amending the Asylum Procedures and the Qualification Directives. Finally, the European Asylum Support Office was established by a Regulation of 19 May 2010 in order to increase coordination of operational cooperation between Member States so that common rules in the area of asylum are implemented effectively.
This legislative package is in line with the 2008 European Pact on Immigration and Asylum, which reconfirmed the objectives of The Hague Programme, and called on the Commission to present proposals for establishing, in 2012 at the latest, a single asylum procedure comprising common guarantees. In the same framework, the Stockholm programme adopted by the European Council at its meeting of 10–11 December 2009 underlined the need to establish 'a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection', based on 'high protection standards' and 'fair and effective procedures', by 2012. In particular, the Stockholm Programme affirmed that people in need of international protection must be ensured access to legally safe and efficient asylum procedures. In accordance with the Stockholm Programme, individuals, regardless of the Member State in which their application for asylum is lodged, should be offered the same level of treatment as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.
An Impact Assessment was conducted as part of the preparation of the previous proposal. The modified proposal is based on the same principles as the previous proposal. In addition, it aims to reduce costs and administrative burden while simplifying and clarifying certain provisions to make their implementation easier. For this reason, the Impact Assessment conducted for the previous proposal continues to apply to the modified proposal.
This proposal is fully in line with the Tampere European Council Conclusions of 1999, The Hague Programme of 2004, the European Pact on Immigration and Asylum, adopted by the European Council on 17 October 2008 and the Stockholm Programme of 2009 which requires the achievement of the CEAS by 2012.
The proposal is also consistent with the objectives of the Europe 2020 strategy, in particular regarding better integration of legal migrants. By promoting faster and more robust asylum procedures, it fosters employability of refugees and persons in need of subsidiary protection as their skills would suffer less from a long period without full access to labour market. It also seeks to reduce Member States' reception costs, thus promoting the sustainability of public finances.
As part of the preparatory work for the previous proposal, the Commission presented a Green Paper, conducted several experts' meetings, including with the UNHCR and civil society partners, commissioned an external study, and collected data in response to several detailed questionnaires. The Commission adopted the Evaluation Report on the implementation of the current Directive on 8 September 2010. Its conclusions further reinforced the findings of the preparatory work.
Following the presentation of the previous proposal in October 2009, discussions were conducted at the technical level in the Council, mainly under the Spanish Presidency. During the discussions, several Member States opposed specific provisions of the proposal because of the particularities of their asylum and/or legal systems. However, the Council was unable to find satisfactory solutions.
It became apparent that, in order to avoid incorporating multiple exceptions for specific Member States and thus jeopardising the overall coherence of the proposed system, there was an opportunity for the Commission to revisit the proposal to propose a more comprehensive solution to the issues voiced, while safeguarding the added value of the text. Clarifying and simplifying the proposed provisions to make their implementation easier for Member States should give a renewed impetus to the discussions. Therefore, the Commission announced in the Justice and Home Affairs Council that it would present a modified proposal for this Directive before the start of the 2011 Polish Council Presidency.
As part of the preparatory work for this modified proposal, the Commission conducted a series of technical consultation meetings in January–April 2010. The modified proposal also takes into account the discussions in the framework of the Ministerial Conference on the quality and efficiency in the asylum process, organised by the Belgian Presidency on 13–14 September 2010. The conference inter alia focused on the issues of interviews, training, country-of-origin information, priority procedures and repeated applications.
The European Parliament adopted its first reading position on 6 April 2011. The resolution generally supported the Commission's proposal. Most of the proposed amendments aimed at strengthening the guarantees for applicants. Some aimed to provide more flexibility for Member States or to improve the overall coherence of the text. The substance of the resolution was taken into account in the preparation of the modified proposal, which thus incorporates many amendments either in text or in substance.
The Parliament's position also contains an important set of amendments which would lead to significant changes regarding the various safe third country notions. The Commission carefully assessed this amendment and concluded that the idea of deletion of national lists of safe countries and the adoption of common EU lists could be considered in the future. However, it will be realistic only once the EASO has the capacity to support in a sustainable manner the replacement of national lists by drafting reports on countries of origin based on relevant, reliable, accurate and up-to-date country of origin information gathered in a transparent and impartial manner, by the development of a common format and a common methodology for presenting, verifying and using information on countries of origin, and analysis of the information on countries of origin.
Although the Parliament's amendments on the various safe third country notions have not been incorporated in the modified proposal, the Commission recognises the need to further harmonise these rules. To that end, the Commission commits to organise, in an appropriate manner, a regular review of the use of these notions with the Member States and the involvement of the Parliament. This regular review process should help prepare further harmonisation in the future.
The modified proposal aims to be a balanced solution to facilitate the negotiations between the two co-legislators.
The main aim of this modified proposal is to simplify and clarify rules, in order to make them more compatible with the variety of national legal systems and to help Member States to apply them in a way that is more cost-effective in their particular situations.
As with the previous proposal, the overall objective remains to achieve procedures that are efficient and fair. The proposal continues to ensure full respect of fundamental rights as it is informed by developing case law of the Court of Justice of the European Union and the European Court of Human Rights, especially concerning the right to an effective remedy. Compared to the current Directive, procedural guarantees ensuring fair and efficient procedures have been revised in order to lead to more consistent application of procedural principles. The proposal also introduces more consistent and simplified procedural notions and devices, thus providing asylum authorities with necessary procedural tools to prevent abuse and quickly process clearly unfounded applications.
With a view to facilitating consistent application of the asylum acquis and simplifying applicable arrangements, the proposal provides for a single procedure, thus making it clear that applications should be considered in the light of both forms of international protection set out in the Qualification Directive. The proposal enhances the consistency with the modified proposal on the Reception Conditions Directive and the EASO Regulation.
A number of changes were made to ensure the proposal is more compatible with the variety of legal systems and other arrangements in different Member States. This concerns, for example, rules on decisions on the right to enter the territory, the possibility to postpone the taking of a decision where the situation in the country of origin is temporarily uncertain, and grounds for examining applications at the border. Several provisions have also been made more flexible to ensure easier implementation.
In order to enable Member States to deal appropriately with a large number of simultaneous asylum claims, rules have been revised as regards access to procedure, conducting personal interviews, and standard maximum duration of asylum procedures.
Finally, all provisions have been thoroughly revised throughout the text to clarify and simplify the rules in order to facilitate discussions and ensure effective implementation.
The modified proposal enhances the ability of Member States to address potential abuse of the asylum system. New rules provide that Member States may accelerate procedures and examine at the border claims where the applicant has made clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing. The same applies to applicants who are a danger to national security or public order.
To better deal with applicants who abscond or fail to comply with their obligations, rules on implicit withdrawal of an application have also been amended. According to these rules, Member States can reject an application based on implicit withdrawal if the authorities already have sufficient elements to adequately examine the claim. In order to increase the applicants' awareness of the consequences of withdrawal, Member States are required to inform applicants about these rules at the beginning of the procedure.
3.1.3. Frontloading: fast, fair and efficient procedures
Frontloading means putting the adequate resources into the quality of decision-making at first instance to make procedures fairer and more efficient. A standard asylum procedure of no more than six months remains a major objective of the proposal. At the same time, the modified proposal makes a number of clarifications to enable an easier implementation of this concept taking into account the particularities of different Member States.
A key element of frontloading is early access to support to help an applicant understand the procedure. The modified proposal clarifies the substance of this basic support to distinguish it from the free legal assistance available in appeals procedures. Member States are free to find the appropriate modalities to provide the support, including through non-governmental organisations, government officials, or specialised services of the state. The amendments should make the implementation of this key provision more cost-effective and dispel misunderstandings which could lead to conflicts between these rules and the general administrative law of several Member States.
The proposal also simplifies the rules on the training that Member States have to provide to the personnel examining and taking decisions on applications. While a high level of competence of this personnel remains the objective, as it is the only way to ensure robust and defendable decisions by the asylum authorities, the modalities are simplified and made more coherent in relation to other parts of the asylum acquis.
Finally, provisions on applicants in need of special procedural guarantees are simplified. The new rules are less prescriptive to give Member States more latitude and flexibility to take into account in the appropriate way the variety of potential specific situations of applicants. At the same time, the rules continue to provide for a high level of guarantees for these persons.
To ensure that a person who expresses a wish to request international protection has an effective opportunity to apply, the modified proposal improves the rules on the initial steps to take in the asylum procedure.
In particular, it removes the potential confusion between the receipt of a complete asylum application and the basic act of registering the fact that a person is an applicant. It thus makes it easier for Member States to comply with the proposed deadline of 72 hours to register an applicant as such after his/her expression of wish to apply, which can be prolonged if respecting it is practically impossible.
Moreover, it provides for simple rules on the training and instructions to be given to border guards and any other authorities likely to enter into contact with potential applicants. The new rules should help Member States implement them taking into account the diversity of their national situations.
Even after an application for international protection has been rejected, a person must be able to reapply if his/her circumstances have changed, in order to take into account the possibility of 'sur place' claims in line with the Qualification Directive. The modified proposal clarifies the rules regarding such applications to prevent their potential abuse.
According to these rules, a subsequent application is subject to a rapid and efficient preliminary examination to determine whether there are any new elements that justify further examination. If there are new elements, the subsequent application has to be examined in conformity with the general rules. If there are not, the application is declared inadmissible. To prevent abuse, Member States may then make an exception from the right to remain in the territory even if the person makes further applications for international protection.
The modified proposal revises a number of devices to make them more coherent with other EU asylum instruments, in particular with the modified proposal for the Reception Conditions Directive. This concerns in particular provisions on special needs and vulnerable persons and border procedures.
The modified proposal also aligns provisions on training on the equivalent provisions of the EASO Regulation. It also foresees a more concrete role for the EASO in the provisions regarding training and access to procedure. The objective is to give Member States flexibility but also support. The involvement of the EASO should also foster coherence in implementation across the Union.
With a view to facilitating consistent application of the acquis and simplifying applicable arrangements, the proposal provides for a single procedure, thus making it clear that applications should be considered in the light of both forms of international protection set out in the Qualification Directive.
The modified proposal amends Directive 2005/85/EC and uses Article 78(2)(d) of the Treaty on the Functioning of the European Union (TFEU) as a legal basis which foresees the adoption of measures for common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.
The proposed Directive will be addressed to the Member States. Application of the Directive to the United Kingdom and Ireland will be determined in accordance with the provisions of Protocol No 21 annexed to the TFEU.
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TFEU, Denmark is not bound by the Directive nor is subject to its application.
Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Union.
The legal base for Union action is established in Article 78 TFEU. This provision states that the Union is to 'develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties'.
Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the CEAS, in particular with regard to issues concerning procedures for granting and withdrawing international protection, in particular to avoid secondary movements. Although an important level of harmonization was reached by the adoption of the directive in 2005, further EU action is necessary in order to attain higher and more harmonised standards on asylum procedures and to take further steps towards common asylum procedures. These standards are also considered indispensible with a view to ensuring that applicants for international protection who are the subject to the Dublin procedures have their applications examined under equivalent conditions in different Member States.
The impact assessment on the amendment of the Asylum Procedures Directive, conducted as part of the preparatory work for the previous proposal, assessed each option with regard to the problems identified so as to represent an ideal proportion between practical value and efforts needed and concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems. The present modified proposal retains the guiding principles of the previous proposal, while introducing additional flexibility for Member States, thus further contributing to the respect of the principle of proportionality.
This proposal was subject to an in-depth scrutiny with a view to ensuring that its provisions are fully compatible with:
– fundamental rights enshrined in the Charter of Fundamental Rights of the EU, and
– obligations stemming from international law, in particular from the Geneva Convention, the European Convention on Human Rights, and from the UN Convention on the Rights of the Child.
Ensuring higher standards on asylum procedures as well as their consistent application across the Union will have an overall positive impact for asylum seekers and will render the fundamental right to asylum of Article 18 of the Charter more effective. In particular, the proposal will reduce room for administrative error in asylum procedures thus ensuring better respect for the principle of non-refoulement enshrined in Article 19 of the Charter and improving access to protection and justice with the guarantee that every applicant should have in the case of a negative decision the right to an effective remedy before a court or a tribunal according to Article 47 of the Charter. The proposal will also enhance gender equality prescribed by Article 23 of the Charter, promote the best interests of the child principle in the asylum procedures, in line with Article 24 of the Charter, and reinforce the principle of non-discrimination as provided in Article 21 of the Charter.