Thursday, 23 September 2010

European Commission: asylum procedures "susceptible to administrative error"

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Source: Europa

The European Commission report on the application of the Directive on minimum standards on procedures for granting and withdrawing refugee status shows that procedural guarantees still vary considerably across the EU. Moreover, the vagueness of the standards set by the Directive and flaws in the implementation at national level may lead to administrative errors. The Commission adopted on 21 October 2009 a proposal to recast the Directive in order to remedy to these deficiencies.

"There are still significant divergences among national asylum procedures and present rules fall short in preventing administrative errors: I call on the European Parliament and the Council to adopt the amendments that the Commission proposed in 2009 to remedy this situation", said European Commissioner for Home Affairs Cecilia Malmström. She added: "The Commission will continue to examine and pursue all cases where problems of implementation were identified, so as to ensure the correct application of the Directive, in particular with regard to the respect for the principle of non-refoulement and for the other rights laid down in the EU Charter of Fundamental Rights, as well as to reduce the scope for divergences."

The Asylum Procedures Directive was designed to establish minimum standards for fair and efficient procedures for granting and withdrawing refugee status.

The Commission report on its implementation highlights that the objective of creating a level playing field with respect to asylum procedures has not been fully achieved. Some of the Directive's optional provisions and derogation clauses have contributed to the proliferation of divergent arrangements across the EU; consequently, procedural guarantees vary considerably between Member States. This is notably the case with respect to the provisions on accelerated procedures, 'safe country of origin', 'safe third country', personal interviews, legal assistance, and access to an effective remedy.

A number of cases of incomplete and/or incorrect transposition and flaws in the implementation of the Directive have also been identified.

As a consequence, procedures may be susceptible to administrative error: an important share of decisions taken on individual cases is overturned on appeal, as they are based on criteria which are insufficiently clear and precise.

On the basis of a thorough evaluation of the implementation of the Procedures Directive, the Commission adopted on 21 October 2009 a proposal to recast the Directive in order to remedy to the deficiencies, streamlining and consolidating procedures and improving both the quality of first instance decisions and the overall efficiency of the asylum process across the EU. Quality and efficiency in the asylum process will be the main theme of a Ministerial Conference in Brussels on 13-14 September in Brussels. The current report will also serve as a background to the discussions.


Between 1 January 20081 and 31 December 2009, the number of asylum applications registered by the 26 Member States bound by the APD was 492,995. During the same period, these Member States issued 444,165 first instance decisions and 125,785 appeal decisions2.

The deadline for transposition of most of the Directive was 1 December 2007, while Article 15, which concerns legal assistance, had to be transposed by 1 December 2008.

Following expiry of these deadlines, infringement procedures were opened against all Member States that failed to fully communicate their transposition measures: the Commission dispatched 17 letters of formal notice and 5 reasoned opinions.

At present, all Member States have notified complete transposition measures except Ireland. The Commission had taken a decision to refer Belgium and Ireland to the Court of Justice for failure to notify complete transposition measures (IP/10/808), and opened infringement proceedings against Greece for its failure to implement properly several provisions of the Directive. In recent days, however, Belgium notified what it considers to be full transposition measures to the Commission. These are currently being reviewed with a view to ascertaining whether they render Belgium's transposition complete.

On 21 October 2009, the Commission presented a proposal for the amendment of the Asylum Procedures Directive (IP/09/1552), with the aim of:
  • providing for a single procedure by ensuring the simplification and rationalisation of asylum procedures, as well as a reduction of administrative burden for Member States;
  • facilitating access to examination procedures. Relevant information and advice should be made available for persons who wish to lodge an application for international protection already at a very initial stage of their presence in the territory. Border guards, police and other authorities who first come into contact with persons seeking protection will have a clearer view of how to deal with them;
  • enhancing the efficiency of the examination process of applications. One of the important measures is the introduction of a general time limit of six months for completing procedures at first instance. The proposal provides for a transitory period of three years to allow Member States to adapt to this time limit. It also simplifies and clarifies procedural notions and devices such as the concept of "safe country of origin", the obligation of asylum seekers to cooperate with national authorities or the accelerated procedures.
  • improving quality of asylum decisions. The proposal enhances procedural guarantees, in particular for vulnerable persons such as victims of torture or unaccompanied children. The personnel dealing with asylum applicants will need to have the appropriate expertise
  • ensuring access to effective remedy for asylum applicants in line with Community and international obligations of Member States. The proposal clearly states that courts or tribunals should review first instance decisions on both facts and points of law and it lays down clear rules concerning suspensive effect of appeals. The amendments ensure consistency with the evolving case law concerning the right to defence, the principle of equality of arms and the right to effective judicial protection.

1 : Decisions included in this paragraph on claims made before 1.12.2007 were not covered by the Directive.

2 : Appeal decision data are, however, not complete as 3 Member States did not supply data for 2008 and data for 9 were missing for 2009.
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