The European Parliament adopted by 314
votes to 306 with 48 abstentions a legislative resolution 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).
Parliament’s position adopted in first
reading under the ordinary legislative procedure amends the Commission’s
proposal as follows:
Definitions: Parliament clarifies the concept of “applicant with special
needs” (due to age, gender, sexual orientation, gender identity, disability, physical or mental illnesses, etc.). However, unlike
the committee responsible, the plenary did not propose a new definition for
“family members”.
The determining authority: Parliament 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. It has 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 (the determining authority being that in
front of which any decision on international protection is taken).
Strengthening
procedural guarantees: on the whole, Parliament
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. Parliament stresses 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.
Parliament strengthens 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, Parliament calls 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.
Detention:
Parliament stresses 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;
- legal assistance can be delivered by a
qualified non-governmental body or by qualified professionals.
It should be noted that unlike the
committee responsible, the plenary rejected the idea of free legal
representation of applicants for international protection.
Provisions
for the vulnerability of certain applicants: in
Parliament’s view, 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).
Withdrawal of an application: in a series
of new amendments adopted in plenary, Parliament proposed to strengthen the
provisions facilitating the withdrawal of an application. Parliament believes
that when there is a reasonable cause to consider that an applicant for
asylum has implicitly withdrawn, or abandoned his/her application for asylum
without reasonable cause, Member States shall ensure that the determining
authority takes a decision to either discontinue the examination or reject
the application on the basis that the applicant has not established an
entitlement to refugee status if he/she in addition to the above- mentioned
reasons: i) has refused to cooperate, or ii) has absconded illegally, or iii)
in all likelihood has no right to international protection, or iv) originates
from or has transited via a safe third country. In the event of the reopening
of the case (if the applicant reports again to the competent authority after
a decision to discontinue the examination), this request for a case to be
reopened may only be made once.
Accelerated examination procedure: in a series of new amendments, the plenary specifies that the
accelerated procedure may be applied if it appears that:
- the applicant clearly does not qualify
as a refugee or for refugee status in a Member State;
- the applicant has made clearly
inconsistent, contradictory, improbable, insufficient or false
representations which make his/her claim plainly unconvincing in
relation to his/her having been the object of persecution;
- the applicant has submitted a
subsequent application which clearly does not raise any relevant new
elements with respect to his/her particular circumstances or to the
situation in his/her country of origin;
- the applicant has failed without
reasonable cause to make his/her application earlier, having had
opportunity to do so;
- the applicant has failed without good
reason to comply with his/her obligations to cooperate in the
examination of the facts of his/her case and the establishment of
his/her identity;
- the applicant entered the territory of
the Member State unlawfully or extended his/her stay unlawfully and,
without good reason, has either not presented himself/herself to the
authorities and/or filed an application for asylum as soon as possible,
given the circumstances of his/her entry;
- the applicant may for serious reasons
be considered a danger to the national security of the Member State, or the applicant has been forcibly expelled for serious reasons of public
security and public order under national law.
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 Parliament, 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. It therefore deletes
the provisions that would allow Member States to provide that no, or no
full, examination of the applications coming from these countries
(considered as conforming with particularly high standards in the area
of human rights and the protection of refugees);
- designation by a Member State of
safe third countries of origin: Member States having the
possibility to maintain or adopt legislative measures enabling to
designate safe third countries of origin at national level for
the purposes of the examination of applications for international
protection is deleted by Parliament because the objective is to
establish a single European system in relation to asylum. This is why
the definition of safe third country has to be uniform in all Member
States. However the plenary maintains (in
contrast to the committee responsible) the Commission’s proposal with
regard to the concept of the “safe country of origin” in which a country
may be considered as “safe” for a given applicant following the
individual examination of his/her request;
- it revised
the definition of “safe third countries” and called for this
definition to be uniform in all Member States. As a result,
Parliament proposes a new definition of this concept 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,…). 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 Parliament’s
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:
Parliament wants 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, Parliament wants the proposed Directive to enter into
force within 2 years of its adoption (and not in 3 years).