The Committee on Civil Liberties, Justice
and Home Affairs adopted the report by Sylvie GUILLAUME (S&D, FR) on the proposal for a directive of the European Parliament and of
the Council on minimum standards on procedures in Member States for granting
and withdrawing international protection (recast).
The committee recommends that the
European Parliament’s position adopted in first reading following the
ordinary legislative procedure amends the Commission’s proposal as follows:
Definitions: Members clarify the concept of “applicant with special needs”
(due to age, gender, sexual orientation, gender identity, disability, physical or mental illnesses, etc.). They also add a
new definition of “family members” who are those who are present in
the same Member State as the applicant for international protection (spouse,
unmarried partner, minor children, etc.).
The determining authority: Members sought to secure a more consistent application of the
concept of “determining authority” and “competent authority” in line with the
principle of a single determining authority. Members consider the
expression 'deal with requests for international protection' is extremely
vague. They have therefore amended the proposal so that throughout the text
it is specified that authorities other than the determining authority are
competent only to register applications and forward them to the
determining authority for examination.
Strengthening
procedural guarantees: on the whole, Members
sought to strengthen the minimal procedural guarantees for asylum seekers,
notably in regard to the case law of the Court of Justice of the EU and the
European Court of Human Rights, in particular in respect of the right to
be informed, the right to be heard and the right to free legal assistance,
and ensure their consistent application in the text. Among the measures
proposed are a certain number of provisions designed to guarantee the non-refoulement
of asylum seekers. Members stress that the Member States must fully respect
the principle of non-refoulement and the right to asylum which includes
access to an asylum procedure for anyone wishing to claim asylum and who is
within their jurisdiction including those under the effective control of a
Union body or a body of a Member State.
Members strengthen the procedural
guarantees as follows:
- permitting the applicant to remain
on the territory of a Member State during consideration of the
application: during the period when his
application for international protection is being examined, the
applicant should in principle have the right to remain on the territory
of the Member State while waiting for the final decision of the
determining authority and, in the event of a negative decision, the time
to lodge an appeal;
- personal examination by competent and
qualified staff: interviews
on the admissibility of an application for international protection
and on the substance of an application for international protection
shall always be conducted by the personnel of the determining authority.
Given the potentially serious consequences of an
inadmissibility decision, the personal interview on the admissibility of
an application must be conducted by a member of staff of the determining
authority, who must have the necessary training to apply complex
concepts such as safe third country and first country of asylum. The personnel examining applications should have the
possibility to seek advice, whenever necessary, from experts on
particular issues, such as medical, cultural, child, gender, religious
or sexual orientation issues. Member States
shall ensure that the member of staff of the determining authority who
conducts the interview on the admissibility of the application does
not wear a uniform;
- talking into account sexual
orientation:personal
interviews should be organised in a way which makes its possible for
both female and male applicants to speak about their past experiences in
cases involving gender based persecution to an interviewer of the same
sex if so requested, who has specific training on the issue of
interviews regarding gender-based persecution;
- personal interviews with minors: Member States should determine in their national law in
which cases a minor may be offered the possibility of a personal
interview, taking due account of the child’s best interests and
special needs;
- medical examination: Member States may use medical examinations to determine the
age of unaccompanied minors where they have doubts concerning his/her
age. If those doubts persist after the medical examination, any
decision shall always be for the benefit of the unaccompanied minor.
Any medical examination shall be performed in full respect of the
individual's dignity, selecting the most reliable and the least
invasive exams and carried out by qualified and impartial medical
experts. Moreover, the decision to reject an application for
international protection from an unaccompanied minor who refused to
undergo this medical examination shall not be based on that refusal;
- respect for applicants’ dignity:the competent authorities may search
the applicant and the items he/she carries with him/her, provided the
search is carried out by a person of the same sex who is sensitive to
the applicant's age and culture and fully respects the principle of
human dignity and physical and mental integrity;
- information to applicant in a
language he/she understands: applicants shall be informed in a language which they understand or may
reasonably be supposed to understand of the procedure to be followed and
of their rights and obligations during the procedure;
- qualifications of interpreters: in the light of the shortcomings observed recently in the
competence of interpreters, it is vital for a code of conduct for
interpreters to be drawn up at national level. This will ensure that
applicants have a genuine and proper opportunity to justify their
application for protection and ensure better understanding and
cooperation between interpreters and the staff conducting the
interviews;
- involvement of a legal
representative if the applicant cannot lodge his/her own application: where applicants are unable to lodge their application in
person (e.g. if they are ill), Member States shall ensure that a legal
representative is able to lodge the application on their behalf;
- submission of an application for
minors by a legal representative:Member States shall ensure that a minor has the right to make
an application for international protection either on his/her own or
through his/her legal representative or the latter’s authorised
representative. This guarantee should also apply if the minor is
married;
- clear reasons for rejection of
application: Member States shall also ensure
that, where an application is rejected or granted with regard to refugee
status and/or subsidiary protection status, the reasons in fact and in law
are clearly stated in the decision and information on how to challenge a
negative decision is given in writing at the time of issuing the
decision and signed upon receipt by the recipient;
- burden of proof:in the event of failure to adopt a decision, the
burden of proof for challenging the granting of protection to an
applicant shall be on the determining authority;
- challenge of the application of the
concept of first country of asylum: the applicant shall be allowed to challenge the application
of the concept of first country of asylum on the grounds that the first
country of asylum in question is not safe in his or her particular
case.
- setting
of time-limits for the submission of a challenge: in view of the wide variety of time
limits laid down by the Member States and the need to achieve a common
asylum system, Members call for the introduction of a minimum common
time limit to provide applicants with access to an effective remedy
in law and in practice. The Member States shall set a minimum time limit
of 45 working days (30 days under the accelerated procedure) during
which applicants may exercise their right to an effective remedy;
- reopening of a case: in the event that an applicant request the withdrawal of
his/her asylum application and when the applicant decides to reactivate
his/her application once a decision to close the case has already been
taken, the latter has the right to request the reopening of his
application. This request for a case to be reopened may only be made
once.
Detention: Members stress that the detention of minors shall be strictly
prohibited in all circumstances. Furthermore, the arrangements for holding
applicants at Member States’ frontiers or transit zones should therefore
satisfy the requirements laid down in this area in the Commission
proposal on reception conditions.
Advice and legal representation of
applicants: several new provisions have been
introduced in order to strengthen the provisions regarding the legal
s-assistance of applicants:
- the applicant and his/her legal adviser
should have access to country of origin information and the procedure to
access it;
- Such advice can be delivered by a
qualified non-governmental body or by qualified professionals;
- Legal representation (and not simply
assistance) should be free.
Provisions
for the vulnerability of certain applicants:
according to Members, the definition of a “vulnerable applicant” should cover
minors, unaccompanied minors, pregnant women, persons
who have been subjected to torture, rape or other serious acts of violence,
such as violence based on gender and harmful traditional practices, or
disabled persons. These persons benefit from free legal assistance in all the
procedures covered by the Directive.
Provisions
regarding children’s best interests: a number of
specific guarantees have been provided for in relation to minors (in
particular unaccompanied minors). Besides the procedural guarantees described
above, provisions have also been added to ensure that the situation of a
minor is not linked to his marital status (in fact, in some countries the
marriageable age may be very low, but this has no bearing on the degree of
maturity or independence of the minor concerned).
Revision of the concept of safe
country of origin, safe third country and safe European third country: these concepts were revised or deleted:
- safe European third countries: according to Members, the concept of 'safe European third
countries' is unacceptable as it stands. This concept is not accompanied
by any minimum guarantees or principles since both territorial access
and access to the asylum procedure may be refused.
- safe countries of origin: in the Commission’s proposal, there was an article that defined
the concept of a “safe country of origin” which could be considered
“safe” for a given applicant following the individual examination of
his/her request. Members have, however, proposed that this concept be
deleted in order to maintain the harmonised concept of “safe third
country”;
- safe
third countries: as Members were in favour
of setting up a truly unique European system in relation to asylum, they
have revised the definition of “safe third countries”. This
definition must be uniform in all Member States. As a result, Member
States would not be able to designate national lists of safe countries
of origin or national lists of safe third countries. Instead, Members
propose a new definition whereby, in principle, an applicant for
international protection coming from a safe third country would have
nothing to fear neither for his/her life nor his/her freedom if sent
back. These countries would have to offer a certain number of guarantees
(non-refoulement, the possibility to request refugee status or another
complementary form of protection,…). It should also be noted that the
list of safe countries may only be agreed or amended by the European
Parliament and the Council acting in accordance with the ordinary
legislative procedure.
Financial assistance for Member States
with a disproportionate burden: in Members’ view,
it is necessary that in Member States that accept a disproportionately large
number of asylum applications in relation to the size of their population,
financial support and administrative/technical support is mobilised
immediately under the European Refugee Fund and the European Asylum Support
Office respectively in order to enable them to comply with this Directive.
Report:
Members want the Commission to report to the European Parliament and the
Council on the application and the financial cost of
this Directive in the Member States. This report will
need to be presented every 2 years (instead of 5 years in the Commission’s
proposal).
Entry into force: lastly, Members want the proposed Directive to enter into force
within 2 years of its adoption (instead of the 5 years in the Commission’s
proposal).