1. A short course on EU asylum law. V
A short course on EU asylum law. V. PROCEDURES DIRECTIVE AND THE RETURN DIRECTIVE
Presented by Boldizsár Nagy,
HR consortium
Presented at PFUR, Moscow, 2017

2. DIRECTIVE 2013/32/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
PROCEDURES DIRECTIVE
DIRECTIVE 2013/32/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 26 June 2013
on common procedures for granting and withdrawing international protection (recast)
(OJ L 180/60 of )
Replacing
Council Directive 2005/85/EC of 1 December on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ L 326/13 of )
History:
Predecessor: Resolution on Minimum Guarantees for Asylum Procedures, adopted on 20 June 1995 published in O.J C 274/13,
Original proposal (COM(2000) 578 final, )
Amended proposal: COM (2002) 326 final O.J. C 291 E/
___________________________________
Recast Proposal: COM(2009) 554 final, 21 October 2009
Second recast proposal: COM(2011) 319 final, 1 June 2011

3. Procedures directive, 2013
Cathryn Costello: the dual vision behind the norms some based on the image of the abusive asyum seeker and others on the vulnerable a.s.
Purpose: common procedures on recognizing and withdrawing refugee status and subsidiary protection Scope: „all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States” (not on high seas or extraterritorially but within jurisdiction!) More favourable provisions: MS may maintain or introduce „insofar” as are compatible with this directive (5 §)

4. Procedures directive, 2013 Guarantees
Access to procedure - each adult has the right. Registration within 3 days
Right to stay - until first instance decision (exception: subsequent application and European Arrest Warrant + int’l criminal courts)
Counselling in detention and border zones Organisations and persons „providing counselling and advice” must have access (Hungarian Helsinki Committee ground-breaking)
Sequence of examination: refugee - if not – subsidiary protection
Procedural requirements: appropriate examination: = individual, objective, impartial, = up to date country of origin and transit info
= personnel knowledgeable about asylum law
= Personnel is entitled to seek expert advice (medical, cultural, gender, child-related)
= appeal authorities also informed about country of origin and transit
- Decision: in writing, justification if negative (!)

5. Procedures directive, 2013 guarantees
Information on procedure and consequences (in a language the applicants „„understand or are reasonably supposed to understand” (§12 (1) a) Interpreter „whenever necessary” Access to Country of Origin (COI) and expert information Access to UNHCR or an agency working on its behalf Notice of the decision on time in a language supposed to be understood – if not assisted by lawyer On appeal: interpreter, access to info, access to UNHCR, timely notification

6. Procedures directive, 2013 guarantees
Obligations of the applicant: MS shall impose the duty to co-operate with the authorities. Report to authorities, hand over documents, report place of residence, allow search, by same sex person, photograph and record statement
Interview: Compulsory, with exceptions
Preferably same sex interviewer
Requirements:
Substantive interview to be made by the competent authority
„Steps” to ensure comprehensive account
Interviewer „sufficiently competent”, (to take account of applicant’s cultural origin and vulnerability gender, sexual orientation, gender identity)
(Positive dec. w/out interview possible, Dublin II, assistance at submission of request, „not reasonably practicable” /e.g.unfit applicant/)

7. Procedures directive, 2013 guarantees
Interpreter to ensure „appropriate communication”, not necessarily in language preferred by applicant.
During interview opportunity to eliminate contradictions, add new clarifying elements (to initial interview, or written application)
Extended rules on reporting „thorough and factual report” or transcript or recording. Applicant has the right to comment ; Lawyer also has access to the report or the transcript
Access to written report or recording: before the decision, approval of applicant not necessary! .

8. Procedures directive, 2013 Guarantees
Medical examination for signs of past persecution or harm (victims).
To be assessed „with the other elements of the application” – not decisive
Legal and procedural information Free of charge, upon request
Legal assistance:
- Applicant must have access to lawyer (at her cost)
Lawyers access to closed areas may be curtailed but not rendered impossible
States shall permit the presence of lawyer at the interview
The interview may take place without a lawyer present
Extended rules on legal assistance In case of sensitive info (national security, etc.) national rules must assure applicant’s „right of defence” e.g. by access to the info by security checked lawyer
Medical exam: With the consent of the applicant, at state expenses, by qualified medical professionals ASAP.
Free legal aid Reimbursement can be demanded if the applicant’s financial situation has improved

9. Procedures directive, 2013 Guarantees
Free legal assistance/representation: MS „shall ensure” after negative decision on conditions as to nationals + further grounds for not offering: Ms may set time or financial limits on assistance and not disclose sensible info Unaccompanied minors: must have representative before interview -not just legal but overall („guardian”) interviewer and decision maker has specialized knowledge MS may check age with medical examination Applicants in need of special procedural guarantees To be identified within reasonable time To be provided with adequate support
Free legal aid Reimbursement can be demanded if the applicant’s financial situation has improved
only for appeal (not admin. review)
if applicant has no means to finance
if „no tangible prospect for success ”
only from among chosen representatives
may limit to one appeal
▪may exclude those no longer present on territory
appeal against the denial of free legal assistance (if not court denied it)
____________________
Representative of minor
legal – best interest of the child – not to be replaced unnecessarily- less grounds for non-appointing – least invasive age-determination – limits on applying accelerated and border procedures
Applicants in need of special procedural guarantees
Shall assess within a reasonable period of time after an application
Need not be an independent procedure (with separate appeals, etc)
If identified as in need of special procedural guarantees be provided with adequate support in order to allow them to benefit from the rights and comply with the obligations of this Directive
Accelerated and border procedures not to be applied if adequate support not available, and in cases of torture, rape or other serious forms of psychological, physical or sexual violence,
Further guarantees against removal
If need becomes apparent later in the procedure – the special procedural guarantees are still aplicable

10. Procedures directive, 2013 Guarantees
Detention: „shall not hold in detention for the sole reason that he/she is an applicant” Cross reference to Reception conditions directive Condition, duration: not fixed, „speedy judicial review required” Implicit withdrawal: Applicant does not report, absconds, does not appear for an interview, does not provide information Discontinuation or rejections is the consequence Reopening of discontinued case within 9 months possible Explicit withdrawal – MS may reject or discontinue UNHCR (and organizations acting on its behalf): access to: applicant, information right to present its view
UNHCR believes that the guidance provided by the Executive Committee in its Conclusion No. 44 (XXXVII) of 1986, which outlines permissible exceptions to the general rule that detention of asylum-seekers should normally be avoided, addresses States’ concerns. Detention of asylum-seekers may only be resorted to, if necessary:
• to verify identity;
• to determine the elements on which the claim to refugee status or asylum is based;
• to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or
• to protect national security or public order.
UNHCR suggests that States provide for an exhaustive enumeration of the grounds for detention of asylum-seekers in national legislation. In line with the jurisprudence of the European
UNHCR suggests simple discontinuation and reopening without time limits

11. Procedures directive, 2013 Procedures
Normal „examination” procedure
Deadline: 6 months
Extension: 9 more months if
Complex case
Large number of applicants
Applicant’s fault
Further extension with 3 months in „duly justified circumstances” (§ 31 (3)
If uncertain situation in country of origin: further postponement of the decision possible
Absolute time limit: 21 months 11

12. Procedures directive, 2013 Procedures
Exceptional procedures/applications
Accelerated procedures
Inadmissible applications
no relevant issue raised
Dublin III applies
safe country of origin
Refugee status in another MS
misled the authorities by presenting false information or documents with respect to his/her identity
Non MS = first country of asylum (already recognized there as refugee)
in bad faith destroyed or disposed of an identity or travel document that would have helped establish identity
„Normal” safe third country applies
the applicant has made clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict verified COI info
Dependent repeating parents rejected application
Presentation by Boldizsár Nagy

13. Procedures directive, 2013 Procedures
Exceptional procedures/applications
Accelerated procedures
Inadmissible applications
subsequent application that is not inadmisible = new elements arouse or presented
Identical subsequent application
merely in order to delay or frustrate removal
entered or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself and/or did not file an application for asylum as soon as possible
European safe third country (optional)
applicant is may, for serious reasons, be considered a danger to the national security or the public order
refuses to have his/her fingerprints taken
Subsequent application = preliminary examination to find out if there are new facts since withdrawal or decision on previous application. May be purely written procedure. If there are no new facts or if appeal was not submitted in the previous procedure – no further examination.
C‑69/10 Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (Luxembourg) decided: 28 July No separate appeal against a decision to examine in accelerated procedure, 15 days for appeal are enough, one level court review constitutes effective remedy
Presentation by Boldizsár Nagy

14. CJEU judgment in case C-175/11 H.I.D., 31 January 2013
Facts: Ireland puts into accelerated procedures ALL Nigerian applicants (on the basis of their nationality) Is this discrimination or can a class of asylum seekers on the basis of the nationality or country of origin be subjected to accelerated procedures? Can national law add further grounds of accelerated procedures? Judgment: The country of origin matters in many respects (e.g. safe country of origin) so relying on nationality per se is not discriminatory as long as all the guarantees are respected PD was minimum standard, the list of possible accelerated procedures in (earlier) art 23 was not exhaustive – states may add their preferred additional grounds
Two Nigerians, Ms H.I.D and Mr B.A.

15. Procedures directive, 2013 Procedures
Border procedures (keeping persons in transit zones or at entry points) Guarantees apply ! Limited to - decision on admissibility of the applications, - to accelerated procedures Maximum: 4 weeks – then: entry to the country If large numbers arrive: border procedures (no entry) even if accommodated „at locations in proximity of the border or transit zone” (§ 43 (3))

16. Procedures directive, 2013 key terms
Presumption: person not in need of protection, because - not threatened or:
- protected elsewhere
Safe country of origin
Country of first asylum
Safe third country
European safe third country
Parliament v Council , Case C‑133/06 decided on 6 May 2008
Challenged: Articles 29(1) and (2) and 36(3) - the procedure to create a list of safe countries of origin and another list of „supersafe” (European) third countries
(Implication of these designations: no, or no full procedure in cases of persons coming from these countries)
Parliament claims that based on 67 (5) TEC co-decision applies not only consultation and Council wrongly created a legal basis for itself
The Council submits that, nothing in the EC Treaty precludes an act which is adopted in due order from creating a secondary legal basis for further legislative acts in that area to be adopted by means of a simplified decision-making procedure. (They claim that political sensitivity and the need to react quickly require simplified procedure)
Court rejects the Council’s argument and annuls articles 29 (1) and 36 (3)
The political importance of safe countries of origin and supersafe third countries does not justify reserving the implementation to Council and not to Commission as the general rule in Art 202 TEC requires
In fact creating those lists is not implementing but secondary legislation
After the adoption of the procedures directive all rules are to be adopted by co-decision
(That gives much more power to parliament than mere consultation
Parliament v Council , Case C‑133/06 decided on 6 May 2008
Presumption: another state should determine if the person needs protection
No judgment on the presence of threat of persecution or harm

17. Safe Country of Origin
it can be shown that there is generally and consistently no persecution and no torture or inhuman or degrading treatment or punishment; and no threat by reason of indiscriminate violence in situations of international or internal armed conflict
This is proved by the legal situation, the application of the law within a democratic system and the general political circumstances.
Account shall be taken of the extent to which protection is provided against persecution or mistreatment through:
the relevant laws and their application;
observance of the European Convention of Human Rights and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture,
respect of the non-refoulement principle
provision for a system of effective remedies

18. first country of asylum
First country of asylum (§ 35) the a.s. has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection, or he/she enjoys otherwise sufficient protection in that country, including benefiting from the principle of non-refoulement, provided that he/she will be re-admitted to that country. Applicant may challenge FCA

19. „Normal” safe third country (defined nationally) (§ 27)
life and liberty are not threatened on account of 5 Geneva Convention grounds; and no risk of serious harm
the principle of non-refoulement is respected; and
the prohibition on removal in breach of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law is respected; and
the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
Furthermore, the safe third country notion is far less relevant following the accession of ten new Member States, as the Dublin II regulation should supersede the ‘safe third country’ concept within the EU.22 Other States outside the EU have been (Norway, Iceland) or will be (Switzerland, Liechtenstein) included in the Dublin II regime, so that the ‘safe third country’ concept will no longer be relevant for these countries. Beyond these borders, none of the remaining countries now at the periphery of the Union could legitimately be considered safe.

20. safe third cont’d
Minimum requirements concerning national rules on determining that a state is safe for a particular applicant: meaningful link between applicant and s.t.c. investigation if a particular country is safe for the particular a.s.(or national designation of s.t.c.) a right of the asylum seeker to challenge the safety If application inadmissible because of s.t.c. : - inform asylum seeker accordingly, - provide asylum seeker with document informing the s.t.c. that the application has not been examined in substance
In UNHCR’s view, mere transit alone is not a meaningful link, unless there is a formal agreement for the allocation of responsibility for determining refugee status between countries with comparable asylum systems and standards.

21. European safe third country
Member states may designate European countries as European Safe Countries Conditions A Non-EU member European country „has ratified and observes the provisions of the Geneva Convention without any geographical limitations; it has in place an asylum procedure prescribed by law; and it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies.” Consequence No examination of the application or no full examination+no right to stay during appeal Applicant has right to challenge If returned there: info that no examination „in substance” took place
In UNHCR’s view, mere transit alone is not a meaningful link, unless there is a formal agreement for the allocation of responsibility for determining refugee status between countries with comparable asylum systems and standards.

22. Procedures directive, 2013
Withdrawal of status MS must act if indications to „reconsider the validity” of the status. Procedure: - inform refugee in writing, - opportunity to contradict (interview or in writing) - obtain pertinent info of country of origin - legal assistance and UNHCR access as in examination - reasoned decision in writing MS may order by law that the refugee status „lapses” when the refugee re-avails herself of the protection or (re)acquires (new) nationality

23. Procedures directive, 2013
Appeals (Effective remedy) To: court or tribunal Against: negative determination, inadmissibility decision, denial of reopening after abandonment, „supersafe” STC decision, subsequent application, border procedure – entry denial, withdrawal of status. - appeal against denial of reopening a procedure in case of implicit withdrawal, against recognising as eligible for subsid. prot. to be recognised as a refugee (MS optionally may exclude this if rights are the same) Examination ex nunc of facts and law (Not merely review of legality)
See H.I.D on the concept of „court or tribunal”
See H.I.D on the concept of „court or tribunal”
H.I.D Para 83:
„In this regard, it must be borne in mind that, according to settled case-law of the Court, in order to determine whether a body making a reference is ‘a court or tribunal’ for the purposes of Article 267 TFEU, which is a question governed by European Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.
84  It is common ground… both by the applicants …and by the Member States and the institutions, that  Refugee Appeals Tribunal meets the criteria of establishment by law, permanence and application of rules of law.
85      By contrast, the applicants in the main proceedings contest the assertions that that Tribunal has compulsory jurisdiction, that the procedure before it is inter partes and that it is independent.
Court:
positive decision is binding only refusal may be overruled by minister = compulsory
inter partes is not absolute: first instance (Office of the Refugee Applications Commissioner (the ‘ORAC’).) must present documents even if it need not be present
the Tribunal is independent enough, the fact that the minister may revoke its members notwithstanding It is free from external intervention and impartial as to the parties

24. Procedures directive, 2013 Suspensive effect
Default: a right to stay „pending the outcome of the remedy” (if appeal submitted on time and Dublin III not applicable)
Suspensive effect may be denied if:
Unfounded in cases of accelerated procedure (except for delayed application= §31/8/h);
Inadmissible: protection in another MS; first country of asylum; subsequent application after preliminary examination;
Implicitly withdrawn application if reopening denied;
European safe third country
In border procedure suspensive effect may only be denied if there was at least a week to challenge removal and review is on fact and law
Deadlines for application: MS may set but „the time limits shall not render such exercise impossible or excessively difficult.” (§ 43/4)
Other major changes
Refined definitions in line with the Qualifications directive (QD), the Reception Conditions Directive and the Convention on the Rights of the Child
„Simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it very difficult in practice” to respect the time limit for registration or the interview with the comeptent authority – longer time limit (10 days), other authority may also conduct the interview (EASO?!), extended deadline for first instance decision
Appeal against being recognised as beneficiary of subsid. prot. In order to be recognised as a refugee. (§ 46)

25. Directive on procedures
Transposition
Adoption: 26 June 2013
Entry into force: 20 July 2013
Transposition: 20 July 2015, except for deadlines of procedure – for them 20 July 2018
Applications lodged after 20 July 2015 and withdrawals started thereafter must be assessed according to the new rules

26. Fundamental elements of the 2016 recast proposal
Aim
A genuinely common procedure „which replaces the various procedures in the member States”
Major features of the proposal
Streamlining and simplifying the procedure for international protection
Determining more precisely and strictly the rights and obligations of applicants
More detalied procedural guarantees and restrictions. (Mixed bag)
Enhanced protection of minors and unaccompanied minors as well as of applicants in need of special procedural guarantees
Streamlining . 3 days to register the application, 10 days to lodge an application with all supporting elements. Further may be submitted until decision. No new elements after first instance decision (estoppel) unless could not have been aware.
MS must seek assistance of European Union Aganecy for Asylum. If not EUAA may step in based on a Commission decision if the functioning of CEAS is jeopardised
Procedure length: 6 month extendible with 3 month (once) if disproportionate numbers apply simultaneously or the case is complex.
Accelerated must be finished in 2 months, eligibility in 1 month (presently no time limit for these)
Deadlines for appeals: Normal: 6 months, accelerated: 2, repeat: 1
Rights and duties
Give fingerprint, facial image, subject to search. If denies - „abandoned” claim
Must stay in country of first entry or where otherwise legally staying
Reporting obligations may apply. Must gove address and telephone, receive communication there
Procedural guarantees and restrictions
Separate hearing on admissibility. Other MS or EAA personal may conduct it.
Prefereably somebody with nowledge of problems which could adversely affect the applicants ability to. Recording obligatory access also – in accelerated only at decision making. Legal assistance and reresentation extended to the whole procedure
Unaccompanied minors and applicants in need of special procedural guarantees
Guarantees even for accompanied minors (interview, knowledge by the interviewer)
Max 5 days to appoint a guardian (not: as soon as possible). Limit on number of children under a guardian. Rfusal of medical examination – to be trated as an adult (but not deny status, solely for this)
Presentation by Boldizsár Nagy

27. Fundamental elements of the 2016 recast proposal
Major features of the proposal (cont’d)
Compulsory use of accelerated procedures (slightly changed triggers)
Tougher rules and short deadlines on (in)admissibility. Safe third cuntry and country of first asylum before Dublin
Simpler and clearer procedures for subsequent (repeat) application
Safe country (safe country of origin, first asylum, safe third) rules revised. Union-level s.c.o and s.t.c. lists to be adopted –full harmonisation – compulsory to treat them as such
Appeal rights better circumscribed (Non-suspensive effect - separate remedy against removal)
Withdrawal of protection – personal interview guaranteed
Much clearer and more logical structure (within the chapters)!
I. General provisions – II. Basic principles and guarantees – III. Administrative procedure – IV. Procedures for withdrawal – V. Appeals – VI. final provisions
Accelerated and border procedures
New: Dublin non-compliance. Ommitted: non reporting as soon as possible (went to deadline of applying)
Admissibility
New scheme for Dublin: Safe third or country of first asylum before Dublin. Decision on admissibility: 1 month. If Dublin case: 10 days
Subsequent application
An earlier applcation rejected by a final decision makes another application subsequent, not only in the same member state but in all member states
Interview guaranteed, unless „clearly” no new elements
Safe countries
Union wide safe third cuntry lists and safe country of origin lists to be adopted. Commission may suspend that qualification
First country of asylum: Right to legal residence, access to labour, reception conditions healthcare, education family unification added (§ 44)
S.t.c. Reasonable to return (connection exists) geographic proximity to the country of origin! (§45 (3) a) The concept of European safe third country is dropped.
Presentation by Boldizsár Nagy

28. DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
Return directive
DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals 28

29. DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
The Return directive
DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals
Personal scope
Obligatory: third-country nationals staying illegally on the territory of a Member State
Optional:
- those refused at the border or intercepted on land, sea or air
- subject to return as a criminal law sanction
Limits: MS must respect rights of persons entitled to free movement under community law and the principle of non-refoulement
+ „due account of” best interest of the child, family life, state of health of the person
Member States may retain more favourable provisions
Bizottság javaslata: 2005 (COM(2005)0391)
Parlament elfogadja: 2008 június 18.
in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations

30. Return directive, 2008
Member states must issue the return decision to any illegal stayer (exceptions exist, like right to reside in other MS or humanitarian reasons)
Preferred return: voluntary return within 7-30 days
Exceptions:
risk of absconding,
manifestly unfounded or fraudulent application for stay permit
or if the person concerned poses a risk to public policy, public security or national security,
States must take all necessary measures to enforce the return decision if the third country national does not depart voluntarily or if the exception to voluntary departure is applicable
Compulsory entry ban (max five years) if no voluntary return within time
Proportionate coercive measure against resisting persons
Detention: max 18 months (if danger of absconding or hampering preparation of return or process of removal )
Strong critique (ECRE, UNHCR, NGO-s)
Art 6 2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately.
4. for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended
5. the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision

31. Central European University
Thanks!
Boldizsár Nagy
Central European University
Budapest
Nagyb at ceu.edu