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Update to EU law on asylum procedures: An assault on human rights?

28 March 2012

The following is a list of changes to the asylum procedures directive in its latest version (Council doc. 14330/03, 7 Nov. 2003), as compared to the prior version.

New issues raised regarding Articles 1-22

These articles were agreed at the JHA Council of June 2003 (Council doc. 10235/03), but some Member States have raised fresh reservations as follows:

- Art. 3: one MS has suggested applying the Directive to applications for subsidiary protection in all MS applying a single procedure

- Art. 3(2): the UK has a reservation re non-applicability of the Directive to applications submitted to representations of Member States, but it is not clear what the concern is

- [art 7(5) has been deleted];

- Art. 8(2): one MS wants an exception from the obligation to state reasons for a rejection in writing if the applicant is given an equivalent status [nb this would impact on the ability of a person with SP status to appeal a GC refusal]

- Art. 10: one MS wants the option to drop a personal interview where the authorities think any of the fifteen possible cases of unfounded applications set out in Art. 23(4) are applicable [nb this would be the first exception from the rule that the basic standards in Chapter II of the Directive apply to all admissible applications except for border and repeat applications; note that the personal interview can already be dropped in cases of applications covered by the Dublin rules]

- Art. 13: new UK reservations would restrict the right to legal aid and legal representation; there are other reservations, including an argument to limit legal aid in principle only to those who entered or reside legally

- Art. 19: one MS wants to indicate that MS are not obliged to provide for a procedure for explicit withdrawal of applications

Articles 23-45

- Art. 23(4)(g): apparently minor amendment

- Art. 23(4)(k): widens scope of exception re whether application can be unfounded due to failure to cooperate with authorities

- Art. 23(4)(o): new condition placed on treating application as 'unfounded' where child applies separately [there must be no new elements raised in the application]

- Art. 25(3)(e): clarify ground of inadmissibility on ground that person has been permitted to stay on other grounds; made clear that person can make fresh application that will be considered on the merits

- Art. 25(3)(f): the word 'final' is dropped; this appears to be a technical amendment since the word still appears at the outset

- Art. 29(1): replaces 'reject' with 'consider'; appears to be technical change

- Art. 33(1)(b): first change (deletes reference to 'on the previous application' appears technical; second change (previously permitted application of procedure only after a final decision; [note that it is possible to prevent further appeals on the merits at an early point in the procedure]

- Art. 33(4): liberalized possibility of reopening procedure in other cases (was restricted to cases where reasons raise significant likelihood of successful application)

- Art. 35(6): requirement to notify Commission re border procedures has been dropped

- Art. 37(1): one possibility of dropping procedural protection in withdrawal cases is expressly spelt out

- Art. 38(2): drops reference to idea that relevant facts can already have been defined, and adds possibility of restriction of judicial control to Wednesbury reasonableness only

- Art. 38(3): new possibility to provide effective remedy for persons with equivalent status only after they lose that status

- Art. 39: suspensive effect clause rewritten: reintroduces possibility of right to stay until court rules on appeal or request to stay; derogations would only apply to the first category

- Art. 39(2)(d): also an exception where application rejected in border procedure

- Art. 39(4), on obligation to inform of possibilities of challenging decision, is deleted

- Art. 43: new provision on possible application of Directive to pending cases