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Document 52013PC0411
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection
/* COM/2013/0411 final - 2009/0165 (COD) */
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection /* COM/2013/0411 final - 2009/0165 (COD) */
2009/0165 (COD) COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT
pursuant to Article 294(6) of the Treaty on the Functioning of the European
Union
concerning the position of the Council on the adoption of
a proposal for a Directive of the European Parliament and of the Council on
common procedures for granting and withdrawing international protection 1. Background Date of transmission of the proposal to the European Parliament and to the Council (documents COM(2009) 554 final and COM(2011) 319 final – 2009/0165 COD): || 22.10.2009; amended proposal: 6.6.2011. Date of the opinion of the European Economic and Social Committee: || 28.4.2010, 26.10.2011. Date of the position of the European Parliament, first reading: || 6.4.2011. Date of adoption of the position of the Council: || 7.6.2013. 2. Objective of the proposal
from the Commission 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. It affirmed in particular that people
in need of international protection must be ensured access to legally safe and
efficient asylum procedures. In accordance with the 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. In this context, and as announced in the 2008
Policy Plan on Asylum[1],
the Commission's proposal to amend Directive 2005/85/EC[2] aimed to achieve asylum procedures
that are efficient and fair. The proposal ensures 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 Directive 2005/85/EC, procedural
guarantees have been revised in order to lead to more consistent application of
procedural principles and to ensure fair and efficient procedures. 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. 3. Comments on the position
of the Council The Council's position reflects a compromise
reached in informal trilogues between the European Parliament and the Council,
facilitated by the Commission. The position preserved the key objectives of
the Commission's proposal and is a significant improvement compared to
Directive 2005/85/EC. While the Commission regrets a small number of changes,
it can nevertheless endorse the compromise and recommend its adoption by the
Parliament. 3.1. 'Frontloading': reinforced
procedural guarantees to improve the quality of asylum procedures The Council's position conforms to the
principle of 'frontloading' and provides a strong set of guarantees for all
asylum seekers. It ensures fast and easy access to the asylum
procedure. Even before a person expresses a wish to request protection, Member
States will need to proactively inform third-country nationals present at
border crossing points and in detention facilities of the possibility to apply
for international protection, wherever there are indications that they may wish
to apply. Basic interpretation arrangements will also have to be provided to
ensure access to the asylum procedure in those areas. Although the time limits
to register an asylum application (even expressed very informally) have been
extended compared to the Commission's proposal, it has been clarified that a
person who has expressed a wish to request international protection immediately
becomes an applicant and is entitled to all relevant rights, regardless of
formal registration or lodging of the application. Subject to drafting or other minor changes, the
text preserves the substance of the Commission’s proposal on most guarantees
for applicants including the principle of single determining authority; the
content of the personal interview; provision of legal and procedural
information at first instance; report from personal interview; free legal
assistance in appeals; deletion of all standstill clauses and derogations from
basic principles and guarantees. Standards are slightly higher than the
Commission’s proposal on training of personnel involved in the procedure. The
Council's compromise specifies that authorities other than the determining
authorities conducting personal interviews on the admissibility of an
application should have basic training in asylum issues. A key element of 'frontloading' as proposed by
the Commission was the general deadline of six months, extensible to twelve, to
complete the examination of an application. This key element has been
preserved, although the maximum duration has been extended. However, compared
to the proposal, the Council's position frames better the possibility to
postpone the procedure if there is an uncertain situation in the country of
origin which means it is not reasonable to take a decision within the normal
deadlines. 3.2. Applicants with special
procedural needs, including unaccompanied minors While the Commission regrets that the level of
guarantees for unaccompanied minors has been lowered in the Council's position,
the Commission can nevertheless accept this compromise since it provides an
adequate level of protection. The Commission proposed to exempt unaccompanied
minors from accelerated and border procedures, as well as from non-automatic
suspensive effect of appeals because these procedural devices significantly
reduce the time available to prove one's claim, while minors require special
support to help them fully express their international protection needs. As for
border procedures, they involve detention which the Commission believe should
generally not be applied to unaccompanied minors. Finally, non-automatic
suspensive effect could jeopardise an unaccompanied minor's access to an
effective remedy, guaranteed by the Charter. The Council's position makes it possible to apply
accelerated procedures to unaccompanied minors, but only in a small number of
circumstances. Among those, the nationality of a safe country of origin is an
objective indication that the application is likely to be unfounded; an
accelerated examination of a subsequent application can be justified by a full
examination of the previous application; and the third ground is a legitimate
national security or public order concern. There are six grounds allowing Member States to
use border procedures. In addition to the three grounds for accelerated
procedures, two circumstances related to admissibility are added (subsequent
applications and possible application of the safe third country concept). Two
more substantial additions are situations where the applicant misleads the
authorities by presenting false documents, or destroys or disposes of an
identity or travel document in bad faith. As such, those grounds would not have
been acceptable to the Commission since unaccompanied minors cannot generally
be expected to fully understand the necessity to cooperate with the asylum
authorities. However, in the Council's position, these grounds can be used only
where there are serious grounds to consider that the applicant is attempting to
conceal relevant elements which would likely lead to a negative decision, and
with additional procedural safeguards. As such, the Council's position is
acceptable since it ensures that only applications where there are strong,
objective indications of unfoundedness or other legitimate reasons (national
security or subsequent application) can be processed in the border procedure.
Moreover, contrary to accelerated procedures, border procedures can be used
only in exceptional circumstances, since they imply detention and unaccompanied
minors can be detained only in exceptional circumstances, according to the new
Reception Conditions Directive. As concerns appeals rules, while there is a possibility
of non-automatic suspensive effect, this is only possible with significant
additional guarantees. In particular, the applicant will have at least one week
and the necessary legal assistance and interpretation to prepare the request to
remain on the territory. Importantly, in the framework of this request, the
court or tribunal will have to re-examine, in fact and in law, the negative
decision, which means that the examination will have to go beyond the mere
threshold of compliance with non-refoulement. In the Commission's view,
these safeguards, together with high-quality first instance examination, can
ensure an effective remedy even without full automatic suspensive effect in cases
of manifestly unfounded applications by unaccompanied minors. Regarding other categories of persons with
special needs, the Council's position contains an unequivocal obligation to
create an effective identification mechanism and to provide adequate support in
the procedure. Moreover, persons whose special needs mean they cannot
participate in special rapid procedures are excluded from accelerated and from
border procedures and receive additional guarantees in appeals in case of
non-suspensive effect, which are the same as those for unaccompanied minors. Asylum
procedures also continue to be gender-sensitive with the possibility for
applicants to request and obtain same-sex interpreters and interviewers, and
gender-specific violence being taken into account in assessment of special
needs. The provisions on special needs thus preserve the Commission's key
objectives. The question of special needs is closely linked
with the use of medical reports or examinations in the asylum procedure. Also
here, the Council's position preserves the main objectives of the proposal
(obligation for Member States to conduct a medical examination if relevant and
possibility for applicants to conduct an examination themselves). However, the
Commission regrets that the use of the Istanbul Protocol on identification and
documentation of symptoms of torture has been rendered facultative, even though
the Union encourages third countries to promote the systematic application of
the Protocol for documentation of torture cases[3].
3.3. Accelerated and border
procedures and effective remedy The harmonisation of the use of accelerated and
border procedures, allowed in all cases under Directive 2005/85/EC, was one of
the key objectives of the proposal. This objective has been preserved as the
Council's position contains an exhaustive list of grounds for the use of these
procedures. The compromise adds three more grounds to the
Commission’s list: subsequent applications which are not inadmissible;
applicants who refuse to have their fingerprints taken for the use in the
Eurodac system; and applicants who entered the territory or prolonged their
stay unlawfully and, without good reason, have not presented themselves to the
authorities and/or filed an application for asylum as soon as possible given
their circumstances of their entry. The additional ground with most substantial
impact is the last one. However, it contains important safeguards which ensure
adequate protection for the applicant. First, Member States will be able to
apply this ground only in case of abusive applications. Applicants who can
provide reasons for not presenting themselves to the authorities given the
circumstances of their entry (demonstrate why their application is not abusive)
will not be subject to an accelerated/border procedure. Second, contrary to all
other acceleration/border grounds, when Member States apply it, they must
always provide at the appeal stage an automatic right to remain on the
territory (full automatic suspensive effect). The proposal also aimed to strengthen the right
to an effective remedy before a court or tribunal by setting out the principle
of automatic suspensive effect of appeal, subject to limited exceptions. This
principle remains in the Council's position. However, there are more exceptions:
in addition to the two of the grounds for acceleration of the procedure as
explained below, cases of implicit withdrawal and the application of the European
safe third country concept are added to the list. Regarding implicit withdrawal, relevant
safeguards have been included before the appeal stage; in particular, the
person has the possibility to request the re-opening of his case and there is
always a possibility to examine the claim as a subsequent application. The risk
of infringing the non-refoulement principle when the European safe third
country concept is used is also minimal, given the strict requirements for a
third country to be considered a European safe third country. Moreover, in case an appeal has no automatic
suspensive effect, there is a possibility to request suspensive effect and the
person must be allowed to remain on the territory while that request is
processed. There is therefore no risk of return without any judicial remedy. Finally, in line with the case-law of the
European Court of Human Rights, the Commission proposed that an appeal against
a negative decision taken in a border procedure has an automatic suspensive
effect. The Council's position provides instead in appeals in border procedures
for the same guarantees as for unaccompanied minors. In manifestly unfounded
cases, these guarantees can mitigate the negative consequences of non-automatic
suspensive effect. In particular, they clarify that no removal can take place
pending the outcome of the request for suspensive effect (which, as explained
above, is a general principle also applicable to other non-suspensive appeals);
they ensure that the applicant always benefits from effective legal and
linguistic assistance; they establish a reasonable minimum time limit for the
preparation of the request; and, importantly, they define the scope of the
scrutiny by the court of tribunal considering the request for suspensive effect
to ensure such scrutiny is close and rigorous. This should give applicants
sufficient opportunities to establish the arguable nature of their claims and
therefore ensure compliance with fundamental rights obligations as informed by
the case-law of the European courts. 3.4. Fight against abuse In order to ensure a balance between the
objectives of protecting genuine asylum seekers and fighting abusive repeated
applications, the Commission proposed to allow Member States to remove an applicant
after a second subsequent application (i.e. third application), provided that
the non-refoulement principle is respected. The Council's position
upheld the objectives of the proposal but added an additional case where the
applicant's right to remain on the territory can be removed: after an
inadmissible first subsequent application made merely in order to frustrate an
imminent return. The Council argued this is required to tackle abusive
last-minute subsequent applications. The Commission can accept these provisions since
the basic safeguards included in the proposal, namely to ensure that applicants
making genuine subsequent applications are not removed from the territory
without a careful consideration of their claims, are maintained. The
application of special derogatory rules for subsequent applications remains
possible only after a final decision on the first application and, in addition,
only after at least one subsequent application which is either unfounded or
contains no new elements compared to the previous one, which clearly points to
its abusive character. Moreover, the Council's position clearly specifies that
the exceptions from the right to remain must be applied in line with the
principle of non-refoulement. The Council's position also amends the
Commission proposal as regards the rules on implicit withdrawal or abandonment
of the application. The proposal's objective was to harmonise the rules
regarding those situations and in particular prevent the risk of an application
never been examined in substance before being rejected. This objective remains
in the Council's position since it specifies that an application cannot be
rejected without an adequate examination of its substance. The Commission
regrets the inclusion of the provision that an applicant's case may be reopened
only once if the applicant reports back following a discontinuation of the
application. However, the negative impact of this provision is largely
mitigated by additional safeguards meaning that if an applicant can demonstrate
that the application was considered implicitly withdrawn due to circumstances
beyond his/her control, the application should not be considered as implicitly
withdrawn at all. 4. Conclusion The Council's position upholds the main
objectives of the Commission's proposal. It makes a step change in the level of
harmonisation of procedural guarantees in asylum procedures by introducing
clear, detailed and compulsory rules, and by deleting derogations and
stand-still clauses. It will lead to easily accessible, faster and fairer
procedures, based on the cost-efficient concept of 'frontloading'. It
harmonises the use of accelerated and border procedures and ensures the right
to an effective remedy by introducing detailed EU-level rules. While increasing
the quality and speed of asylum procedures, it also provides new tools to tackle
abusive repetitive applications. It introduces strong provisions on special
procedural needs, including gender-specific ones. Finally, it will provide for
adequate protection of unaccompanied minors, while at the same time taking into
account concerns regarding potential abuse. The substance of the Council's position is
therefore broadly in line with the Commission's proposal and can be supported. [1] Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the
Committee of Regions, "Policy plan on asylum - An integrated approach to
protection across the EU" - COM(2008) 360, 17.6.2008. [2] Council Directive 2005/85/EC of 1 December 2005 on
minimum standards on procedures in Member States for granting and withdrawing
refugee status, OJ L 326, 13.12.2005, p. 13–34. [3] Guidelines to EU Policy towards third countries on
torture and other cruel, inhuman or degrading treatment or punishment, Council
document 6129/12, 15 March 2012.