Minimum standards for procedures for granting and withdrawing refugee status

This directive lays down minimum standards for the procedures for granting and withdrawing refugee status in order to reduce the disparities between national examining procedures and to safeguard the quality of decision-making in European Union (EU) countries.

ACT

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.

SUMMARY

The directive is applicable to all applications for asylum * made on the territory of European Union (EU) countries, including borders, or in a transit zone. However, it does not apply to Denmark, which has opted out of EU justice and home affairs policy altogether.

EU countries are obliged to apply this directive to the procedures for handling applications for asylum based on the Geneva Convention *. If, within the framework of their asylum procedures, EU countries also examine the applicant’s qualification for any other type of international protection, they must apply this directive to the entire procedure. In addition, they may apply it to the procedures for handling applications for any other types of international protection.

Basic guarantees

An application for asylum may not be refused solely on the grounds that it was not made as soon as possible. Moreover, EU countries must ensure that applications are examined individually, objectively and impartially.

Applicants shall be entitled to remain in the country while their application is pending.

Furthermore, EU countries must ensure that applicants:

• are informed of the procedure to be followed, their rights and obligations and the result of the decision taken by the responsible authority *. All decisions must be communicated in writing and, if an application is rejected, the reasons must be stated and information on how to challenge the negative decision must be given;
• receive the services of an interpreter for submitting their case to the competent authorities whenever necessary;
• are given an opportunity to communicate with the United Nations High Commissioner for Refugees (UNHCR). In more general terms, EU countries must authorise the UNHCR to have access to applicants for asylum, including those in detention centres, and to information on asylum applications and procedures, and enable the UNHCR to give his/her opinion to any competent authority;
• have a genuine opportunity to consult a legal adviser. In the first instance, applicants may have to do so at their own expense. If the competent authority's decision is negative, the EU country in question must ensure that free legal assistance is granted on request. It may attach certain conditions to this right (only applying it to one appeal and not to any onward proceedings, limiting the option of legal advice to advisors specifically designated by national law, restricting proceedings to those that have a chance of success or to applicants who do not have sufficient resources).

The following additional guarantees apply, subject to some conditions, in the case of unaccompanied minors *:

• a person shall represent the minor and/or help him/her with the application;
• if the procedure involves a personal interview, the representative shall have an opportunity to explain the purpose of the interview to the minor;
• a person with knowledge of the special needs of minors shall prepare the decision of the determining authority and, if applicable, conduct the personal interview.

Obligations

EU countries may impose obligations on applicants for asylum to cooperate with the national authorities. In particular, they may provide that the applicants must:

• contact the competent authorities or appear in person;
• submit their applications in person and/or at a designated location;
• hand over documents in their possession relevant to the examination of the application, such as their passports.

Examination procedure

In general, decisions on applications are taken by the determining authority designated by EU countries. The personnel of such an authority must have knowledge of the relevant standards of asylum and refugee law.

Before the competent authority reaches its decision, applicants for asylum are usually entitled to a personal interview with a competent official. This normally takes place without the members of the family being present and in conditions that ensure appropriate confidentiality. A written report of the interview is drawn up, the contents of which may be submitted for approval by the applicant. However, the applicant's refusal to approve the report cannot prevent the competent authority from taking its decision.

EU countries may not hold a person in detention for the sole reason that he/she is an applicant for asylum. Where an applicant is held in detention, the EU country shall ensure that there is a possibility of a rapid judicial review. The directive on minimum standards for the reception of asylum seekers provides further rules on the detention of applicants.

EU countries may use medical examinations to determine the age of unaccompanied minors whilst examining an application for asylum.

EU countries must ensure that information regarding individual applications is kept confidential.

Procedures at first instance

The basic principles and fundamental guarantees provided for by the directive apply fully to the procedures for examining "normal" applications for asylum. EU countries may also make provision for special procedures that are exempt from these principles and guarantees in order to examine applications for asylum in the following two cases:

• subsequent applications (by persons who have already made such an application in the EU country concerned);
• under certain conditions, to decide at the border whether to grant authorisation to enter the country to persons who have submitted an application there.

EU countries may also decide, whilst complying with the basic principles and fundamental guarantees provided for by the directive, to accelerate an examination procedure, especially under the following conditions:

• the applicant has only raised issues that are not or only minimally relevant to the examination of his/her refugee status or his/her statements are incoherent, contradictory or implausible, which clearly make the claim unconvincing;
• the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality;
• the applicant comes from a country that the EU country in question has designated as a “safe country of origin” or a “safe third country”.

A non-EU country designated as a safe country of origin may be considered as such for a given applicant for asylum only if he/she has not put forward serious reasons suggesting that it is not safe because of his/her personal situation, in view of the conditions required for claiming refugee status in accordance with Directive 2004/83/EC.

Under specific conditions, EU countries may declare an application to be inadmissible and not examine its substance, especially when:

• another EU country is competent for examining the application in accordance with the Dublin II Regulation or another EU country has already granted the applicant refugee status;
• the applicant can benefit from protection in a non-EU country that is the first country of asylum or a safe third country for him/her;
• the applicant has lodged an identical application after a final decision.

EU countries may apply the concept of a safe third country only when the competent authorities are certain that in the non-EU country concerned:

• the life and liberty of the applicant are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
• the principle of non-refoulement, in accordance with the Geneva Convention, is respected;
• the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected;
• the possibility exists to request refugee status and, if it is granted, to receive protection in accordance with the Geneva Convention.

Withdrawal procedure

EU countries shall initiate an examination to withdraw a person’s refugee status when new elements or findings arise, indicating that there are reasons to reconsider the validity of his/her refugee status.

Such an examination must comply with certain principles and guarantees regarding, in particular, information of the person concerned, and the option for the person to present his/her case with regard to the withdrawal at a personal interview.

Appeals procedure

EU countries must guarantee applicants an effective right of appeal before a court against decision taken on their application for asylum and against other types of decisions taken within the framework of asylum procedures (including on withdrawal of status or admissibility of application).

Background

In the conclusions of the 1999 Tampere European Council, it was decided to establish a common European asylum system based on exhaustive and comprehensive application of the Geneva Convention. In the short term, this was to involve laying down common standards for a fair and efficient asylum procedure, as provided for in the scoreboard approved by the Council on 27 March 2000. In the long term, there would be a common asylum procedure and uniform status throughout the Union.

RELATED ACTS

Report from the Commission to the European Parliament and the Council of 8 September 2010 on the application of Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [COM(2010) 465 final – Not published in the Official Journal]. This report provides an overview of EU countries’ transposition of Directive 2005/85/EC into their national law and of problems encountered in its application.

The report details a number of cases of incomplete or incorrect transposition and flaws in the application of the directive by EU countries. Furthermore, due to some of the optional provisions and derogations in the directive, differences persist between EU countries’ arrangements and procedural guarantees. This is particularly the case with regard to:

• personal interviews;
• legal assistance and representation;
• accelerated examination procedures;
• the concept of safe third country;
• the concept of safe country of origin;
• the right to an effective remedy.

To rectify procedural divergences between EU countries caused by certain vague and ambiguous standards in the directive, the Commission adopted in 2009 a proposal [COM(2009) 554 final] to amend it.

Last updated: 16.10.2010