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Statewatch News online: Analysis of revised proposed EU Directive on Asylum Procedures

28 March 2012

Statewatch analysis:
Asylum Procedures Directive

Full-text of the revised (dated 18.6.02) proposed EU Directive on asylum procedures: pdf format (2.6MB) zipped/pdf (635k)

Asylum Procedures Directive Amendments

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Changes

1) Art. 2 (j) (ex-Art.2(l)): definition of 'detention' now less precise

2) Art. 2(l) and (m): definitions of "Annulment of refugee status" and "Remain on the territory of the Member State" are new.

3) Ex-Art. 3(2) is dropped, so it is not express whether or not the Directive applies when an asylum application is considering during a border procedure.

4) Art. 4 (minimum standards clause) is new.

5) Art 5 (ex-4) is reshuffled and there are additions and amendments. Art. 5(6) was Art. 14(1)(a) and (b).

6) Art 6 (ex-5) only permits an asylum-seeker to stay on the territory; there is no reference to staying at the border. In addition Art. 6(2) now provides for an exception to this rule.

7) Art 7(1)(a) is ex-Art. 6. Art 7(1)(b) is ex-Art. 13(1)(b). Art 7(1)(c) is ex-Art. 14(1)(d) plus 13(1)(a), although the obligations are less precise than the in the former. Art. 7(2) is ex-Art. 13(2), although with no reference now to confidentiality limitations.

8) Art 8 is ex-Art 7(d) and (e), although greatly simplified.

9) Art. 9(1)(a) is ex-Art. 7(a), without the obligation to make sure that the information is in the applicant's language. Words on timing of this information are added. Art. 9(1)(b) is ex-Art. 7(b), but with the right to interpreter more qualified. Art. 9(1)(c) is ex-Art. 7(c), and Art. 9(1)(d) and (e) are ex-Art. 7(d) and (e), with some alterations. Art. 9(2), indent one is based on ex-Art. 8(3). The limit of Art. 9(1)(a) rights to the 'regular procedure' is new.

10) Art 10 (ex-8(1) and 8(5)) now provides for wider exceptions for the personal interview, for minors or on the basis of evidence available, unfitness, lack of an interpreter, or applicant's disappearance.

11) Art 11(1) is based on ex-Art 8(4). Art. 11(2) on the circumstances of interviews appears to be new.

12) Art. 12 is based on ex- Art. 8(2) and (6), but not identical. The distinction based on type of procedure has been dropped.

13) Art. 13 is ex-Art. 9(1) and 9(4). Limits on legal aid are broadened.

14) Art. 14(1), part one, on access to the file, is new. Art. 14(1), part 2 is based on ex-Art. 9(2), with some changes. Art. 14(2) is ex-Art. 9(3); it adds the right to be informed about the interview and to attend the interview in all types of procedure. Access to other interviews is still left to national law.

15) Art. 15 (ex-10) on unaccompanied minors is different by means of a new Art. 15(3) concerning medical examinations. The idea that the decision is taken by a specialised official is also new.

16) Art. 16 (ex-25) has made some changes compared to the prior rules on presentation of evidence.

17) Art. 17 (ex-11) is different in that the grounds for detention are clearly now exhaustive. However, the grounds are now also broader. Art. 17(3) (ex-11(2)), part two, now requires Member States to allow judicial review of the legality of detention.

18) Art. 18 is entirely new, permitting 'Dublin detentions'.

19) Arts. 19 and 20 (ex-art. 16) sets out different rules on withdrawal of applications.

20) Art. 21 (ex-17) on the UNHCR does not appear to have changed substantively.

21) Art 22 (ex-15) on confidentiality has dropped the prior Art. 15(1) and 15(4).

22) Chapter III now deals with 'accelerated procedures', comprising all admissibility claims, manifestly unfounded claims, unfounded claims, repeat applications, or applications for entry (see Art. 23). Previously the concept only covered 'manifestly unfounded' applications (ex-Art. 27).

23) Art. 24 sets out an overall time limit of three months for a decision in these procedures, replacing the 40 days for interview then 25 days for decision in the prior proposal as regards admissibility (ex-Art. 23) and manifestly unfounded cases (ex-Art. 29). A three-month extension is now possible (Art. 24(2)). There are now limits on the conversion into the 'regular' procedure as a sanction if the time limits are not met (Art. 24(3)), and Art. 24(4) now allows for a 'backwards' conversion from the regular into accelerated procedures. Art. 24(5) now terminates the conversion process once a Dublin request is made.

24) The list of grounds for an 'inadmissible' application is extended to cover certain extradition requests and indictments by the ICC (Art. 25(d) and (e)).

25) Ex-Art. 19 has been dropped-presumably on the grounds that there is a crossover with the Dublin II proposal.

26) The rules on safe first country are the same except for a reference to 'international law' (Art. 26, ex-Art. 20), and the rules on safe third country are very similar (Art. 27 and 28, ex-Arts. 21 and 22). There must now be specific grounds for designating third countries (Art. 27(3), point 3) and the safe third countries must be informed regarding the non-examination of the claim (Art. 28(2)). A country could now be considered 'safe' even if a person has never been admitted there (!)-Art. 28(1)(b).

27) The idea of 'manifestly unfounded' is now limited to cases which raise no Geneva Convention argument at all, where 'safe country of origin' applies or where a person is 'prima facie' excluded from status (Art. 29). The first two were in ex-Art. 28(1)(d) and (e), with the difference that a reference to the ECHR has been dropped, but the latter was previously an example of a case where the 'manifestly unfounded' principle could not apply (ex-Art. 28(2)(b)). The EM says this follows from the Commission's paper on 'asylum and security' last year.

28) The rules on 'safe countries of origin' are the same, except for a requirement for MS to set out the specific reasons for considering a state to be one.

29) The list of merely 'unfounded' claims (Art. 32, ex-28), has widened the 'fraudulent' ground to include 'misleading' applications re identity or nationality (32(1)(a)); has added other forms of fraudulent or misleading applications (32(1)(c)); the 'imminent deportation' clause is reworded (32(1)(e)); there is a ground of failure to comply with obligations (32(1)(f)); the applicant is an illegal entrant who did not contact the authorities with good reason (32(1)(g), turning around Art. 31 GC); or on security grounds (32(1)(h), based on the GC). The list is still not exhaustive, and both the exclusions in the previous version (internal flight and Art. 1.F) have been removed. There is, however, a new clause to the effect that the authorities must show no reason to expect persecution.

30) Arts 33-34 are new provisions with rules on repeat applications.

31) Art. 35 is a new provision for special rules in border cases.

32) Arts. 36-37 concern withdrawal of applications (ex-Art. 26). There do not appear to be any substantive changes.

33) There is no longer a general rule for the 'regular procedure' (ex-Art. 24).

34) The general appeals clause adds types of procedures to the right of appeal (Art. 38, ex-Art. 32).

35) The right to suspensive effect of an appeal now only applies in principle to regular procedure cases, not to all cases (Art. 39(1), ex-Art. 32(1)). There is now the possibility of exception even for the regular procedure where a MS already provides for it (see Art. 39(2)); this obviously raises grave doubts about ECHR compatibility. This exception is subject to the right to apply for leave to remain, (Art. 39(3) and (4); see ex-Art. 33(3)); even here there is a national security and public policy exception (this only applied to suspensive effect itself before: see ex-Art. 33(3)(c). Again this exclusion raises obvious ECHR issues.

36) As for 'accelerated procedures', MS must lay down the circumstances of non-suspensive effects of appeals (Art. 40(1)); the idea of this concept is no longer presented as an option, and is no longer limited to safe third country, manifestly unfounded and national security cases (ex-Art. 33(2)). There is the prospect of a court ruling on its own motion or on request that the applicant has leave to remain (Art. 40(2)), but unlike in the prior version, where there was no exception to suspensive effect pending a 'leave to remain' decision except for 'safe third country' cases (ex-Art. 33(3)), there are now possible exceptions in all 'admissibility' cases, where a prior request has been rejected, in the case of repeat applications, or on national security/public order grounds. There is no condition of restricting any of these exceptions to cases where a MS already provides for them. Again there are obvious ECHR problems.

37) The detailed rules for the different forms of appeal and further appeal (ex-Arts. 34-40) have been replaced by a simplistic content-free Article requiring MS to lay down rules on judicial matters (Art. 41).

38) The final provisions (Arts. 42-47) are very similar to the prior provisions (ex-Arts. 41-46), except that the MS must comply by the start of 2005, and there is a longer list of non-discrimination principles.

filed 21.6.02
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