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EU Asylum Reform Contents

2Establishing a common EU asylum procedure

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; opt-in decision recommended for debate on the floor of the House together with Council document 11316/16, a proposal for a Regulation on standards for the qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC concerning the status of third country nationals who are long-term residents; drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU

Legal base

Article 78(2)(d) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Numbers

(37968), 11317/16 + ADDs 1–2, COM(16) 467

Summary and Committee’s conclusions

2.1Fair and efficient asylum procedures are essential to ensure that individuals fleeing persecution or armed conflict are able to have their claims for international protection considered swiftly.67 The EU’s asylum rule book—the common European asylum system— establishes common standards for the treatment of asylum seekers, including the procedures and safeguards to be applied by Member States when deciding whether or not to grant international protection. These common standards are intended to reduce fragmentation and increase mutual trust in Member States’ national asylum systems. In practice, the Commission believes that the current procedures, set out in the 2013 Asylum Procedures Directive, are too complex, too lengthy, and leave too much discretion in the hands of Member States, resulting in different treatment and outcomes depending on the Member State in which an application for international protection is submitted. It suggests that the absence of fully harmonised asylum procedures across the EU creates “pull factors” which draw individuals to Member States with the most favourable asylum recognition rates and reception conditions, contributes to “secondary movements and asylum shopping”, and results in an uneven distribution of asylum seekers and sharing of responsibility amongst Member States.68

2.2The Commission proposes to repeal the 2013 Asylum Procedures Directive and replace it with a directly applicable Regulation establishing a fully harmonised common EU asylum procedure which is intended to:

2.3The proposed Regulation forms part of a package of reforms put forward by the Commission to develop “an integrated, sustainable and holistic EU migration policy based on solidarity and fair sharing of responsibilities and which can function effectively both in times of calm and crisis”.69 The first phase of reforms, proposed in May, focuses on changes to the Dublin system—a set of procedural rules supported by an asylum database (Eurodac) which allocate responsibility for each asylum application made within the EU to a single Member State (usually the Member State through which an individual first entered the EU)—and to the European Asylum Support Office, transforming it into the European Union Agency for Asylum with stronger powers to monitor and improve the overall functioning of the common European asylum system.70 The second (and final) phase of reforms (which includes the proposed Regulation) sets out changes to substantive EU asylum laws determining who qualifies for international protection, the procedures applicable to asylum claims and how asylum seekers are to be treated while their claims are being examined. The package also includes a proposal for a structured EU resettlement framework which is intended to reduce the flow of irregular migrants by providing safe and legal pathways to the EU for third country nationals who are in need of international protection.71 All of the proposals are subject to the UK’s Title V (justice and home affairs) opt-in, meaning that the UK will only be bound by them if the Government decides to opt in.

2.4According to the EU Commissioner for Migration (Dimitris Avramopoulos):

“The changes will create a genuine common asylum procedure and guarantee that asylum seekers are treated in an equal and appropriate manner, regardless of the Member State in which they make their application. At the same time, we set clear obligations and duties for asylum seekers to prevent secondary movements and abuse of the procedures. Our objective is to have a common system which is quick, efficient and based on harmonised rules and mutual trust between Member States.”72

2.5The Immigration Minister (Mr Robert Goodwill) sets out the Government’s position following the referendum on the UK’s membership of the EU:

“On 23 June the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation.”73

2.6He identifies the factors which the Government will take into account in deciding whether or not to opt into the proposed Regulation and the Government’s position on “the main thematic areas” covered by the proposal. He recognises the importance of delivering “fast and efficient asylum processes that balance the rights of applicants with the ability of Member States’ national authorities to determine applications and tackle abuse” but questions whether “a one size fits all approach” will work. He suggests that the shift from a standard-setting Directive which “permits Member States to make accommodations when transposing the provisions to reflect their national law” to a directly applicable Regulation would have “profound implications for national sovereignty in this policy area”.74

2.7The UK’s patchwork participation in EU asylum measures complicates the task of analysing the impact of the proposed Regulation on asylum law and practice in the UK. If the Government decides to opt into the proposal, we expect the Minister to provide a full analysis of the changes that would be needed to bring UK law into line with common EU standards, as well as his assessment of their overall impact on international protection standards in the EU.

2.8The Minister accepts that there is “some merit” in the Commission’s argument that a common asylum procedure may help to ensure greater equity in the treatment of individuals applying for international protection within the EU and enhance clarity and legal certainty, whilst also reducing “incentives for asylum shopping and secondary movements between Member States”. He adds, however, that “there is equally an argument that Member States could achieve this individually, taking into account their national circumstances”. In weighing the justification for EU action, we expect the Government to assess the strength of the arguments for and against and come to a clear conclusion on the relative benefits of regulating at EU or national level. It is not self-evident that unilateral national action would produce the degree of coordination needed to prevent secondary movements on the scale witnessed within the EU in recent months. We ask the Minister whether the objectives he supports—a clear obligation on individuals applying for international protection to cooperate with national authorities, accompanied by procedural sanctions to discourage “abusive behaviour” and unauthorised secondary movements between Member States—could be sufficiently achieved by Member States, without further EU intervention.

2.9The Minister expresses concern that the choice of a directly applicable Regulation, rather than a standard-setting Directive which has to be implemented in national law, would “reduce the ability of Member States to set their own procedural standards and so has a more profound impact on national sovereignty”.75 We ask him to clarify:

2.10The Minister accepts that there may be some benefit in establishing a common EU approach on safe third countries but questions how easy it will be for Member States to agree a common list of safe countries. We remind him that we await a response to questions we raised last October on an earlier Commission proposal to designate six Western Balkans countries and Turkey as safe countries of origin. We reiterate our request for the Government’s view on the proposed inclusion of Turkey.76

2.11Our previous chapter on the proposed revision of EU rules determining who qualifies for international protection (the Qualification Regulation) notes the emphasis placed by the Commission on the interdependence of its asylum reform proposals. Given the scale and ambition of the reforms, and the vital role that asylum procedures play in establishing a humane, fair and effective asylum system, we consider that the proposed Regulation should be included in the opt-in debate we have recommended on the proposed Qualification Regulation. We suggest that the debate should consider the merits of the Commission’s reform package, the legal, practical and political feasibility of opting into some, but not all, of the reform proposals, and the wider implications for the UK once it has left the UK. We would like to hear whether there are any elements of the reform package which the Government would wish to replicate in its own domestic asylum laws or practices and what impact differential rules on asylum procedures in the EU and the UK may be expected to have on the UK asylum system post-Brexit.

2.12The proposed Regulation remains under scrutiny. As well as providing the information we have requested, we ask the Minister for an indication of the initial reactions of other Member States to the Commission’s reform package and progress reports on any negotiations that take place before the opt-in debate. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU: (37968), 11317/16 + ADDs 1–2, COM(16) 467.

Background

2.13Chapter 1 of this Report on the proposed revision of EU rules on who qualifies for international protection describes the UK’s patchwork participation in the common European asylum system. The UK participates fully in the Dublin system and also opted into the first raft of EU asylum laws adopted between 2003 and 2005, including a 2005 Directive establishing minimum standards on the procedures to be applied by Member States when considering whether to grant or withdraw refugee status. The 2005 Directive remains binding on the UK but has been replaced for most other Member States by the 2013 Asylum Procedures Directive—part of a second raft of EU asylum laws introduced between 2011 and 2013—which contains more far-reaching procedural rules covering claims based on the UN Refugee Convention (refugee status) and a second form of protection (subsidiary protection) for individuals at “real risk of suffering serious harm” if returned to their country of origin.77 It is these later EU asylum laws which the Commission’s recent reform proposals seek to change.

2.14The Commission has held “targeted consultations” with Member States, the UN Refugee Agency (UNHCR) and civil society representatives. Member States have generally welcomed the proposed replacement of the 2013 Asylum Procedures Directive by a Regulation and expressed support for further efforts to clarify and simplify existing procedural rules, introduce time limits to make procedures more efficient, and discourage secondary movements, but views on harmonising safe country concepts and making their use compulsory were mixed. Other stakeholders cautioned against the risk of lowering protection standards to achieve a common denominator, particularly as “the Union is a principal model to look up to in this area of international refugee law”.78 They questioned whether stricter time limits could be reconciled with the need to ensure that procedural guarantees were effective and whether the compulsory use of safe country concepts and special procedures were justified.

The proposed Regulation

2.15The principal objective of the proposed Regulation is to establish a common EU asylum procedure which applies to all international protection claims made within the EU, is “efficient, fair and balanced” and enables Member States to take “quick but solid decisions”.79 The choice of a directly applicable Regulation is intended to remove the procedural variants which are permissible under the 2013 Asylum Procedures Directive and achieve “a higher degree of harmonisation and greater uniformity in the outcome of asylum procedures across all Member States”.80 The Commission anticipates that its proposal will simplify and streamline asylum procedures, strengthen procedural guarantees for applicants, ensure “fast but high quality decision making at all stages” of the asylum process so that applicants are able to clarify their legal status sooner, and provide the tools needed to prevent abuse of the system and deter secondary movements.81 In the following paragraphs, we set out the main changes proposed by the Commission and their intended purpose.82 Given the length and complexity of the proposed Regulation and the existing rules it would replace, our analysis draws largely on the commentary provided by the Commission in its explanatory memorandum accompanying the proposal.

Streamlining and simplifying asylum procedures

2.16The changes proposed by the Commission seek not only to clarify and simplify asylum procedures, but to make them shorter, not least so that individuals who do not qualify for international protection can be returned more quickly. The proposed Regulation would maintain the six-month benchmark for reaching an initial decision on an application for international protection but introduce new time limits at other stages of the asylum procedure. The Commission recognises that the time limits may be challenging for Member States but underlines the need for applicants to have “legal certainty” and says that additional operational and technical assistance will be available from the proposed EU Asylum Agency.

2.17Under the proposed Regulation, an applicant would have ten working days to lodge a formal application for international protection once it has been registered by the relevant national authority (the current rules stipulate that it should be lodged “as soon as possible”). In the case of unaccompanied asylum-seeking children the ten-day time limit would only start to run once a guardian has been appointed and has met the child.83 Time limits for registering, lodging and concluding the initial examination of an application for international protection may be extended if there is “a disproportionate number” of individuals applying at the same time or if (at the examination stage) the application raises complex issues of fact or law.84 An uncertain and evolving situation in an applicant’s country of origin may also be grounds for delay, but the proposed Regulation stipulates that there should be regular reviews (at least every two months) and that the examination of the application for international protection must be concluded within 15 months of the date on which it was formally lodged.85

2.18To ensure that Member States are able to meet these time limits, they would be required to assess the capacity and needs of their asylum authorities on a regular basis and provide the necessary resources. The proposed Regulation makes clear that they may request assistance from other Member States or the proposed EU Asylum Agency to fulfil their tasks, particularly at times of disproportionate pressure.86

2.19The proposed Regulation would also introduce time limits for procedures concerning the admissibility of an application for international protection and for applications which are subject to an accelerated procedure. An application may be rejected as inadmissible without considering its merits if the applicant has already enjoyed “sufficient protection” in another (non-EU) country before reaching the EU (“a first country of asylum”) or has come from “a safe third country” and is able to be returned there safely.87 In both cases, procedures to determine the admissibility of an application should be concluded within ten working days.88 An application may also be regarded as inadmissible if it has been made following an earlier rejection (“a subsequent application”) without presenting any new elements. In such cases, a one-month time limit applies.89

2.20Some applications must be examined on their merits but are subject to an accelerated procedure because, for example, the applicant has come from a safe country of origin or is considered a danger to national security or public order. The proposed Regulation would introduce a two-month time limit for completing the initial examination, reduced to eight working days for applications which are made to “delay or frustrate” the enforcement of a removal order.90 New time limits for appealing decisions taken on applications for international protection and for reaching decisions on appeal are dealt with later under the heading, “Right to an effective remedy”.

Rights and obligations of applicants for international protection

2.21The changes proposed by the Commission are intended to clarify the rights and obligations of applicants throughout the asylum procedure. Turning first to obligations, the proposed Regulation would require applicants to:

2.22Applicants who fail to cooperate, including by refusing to provide fingerprints and a facial image, are at risk of their application being rejected or dealt with by means of an accelerated procedure.94 Given the potential severity of the sanction for non-cooperation, the proposed Regulation would require Member States to inform applicants in good time of their rights and obligations throughout the asylum procedure and the possible consequences of non-compliance.95

2.23Once an application for international protection has been lodged, the proposed Regulation would require the responsible Member State to:

2.24The right to remain in a Member State pending the completion of the asylum procedure does not constitute an entitlement to a residence permit, nor does it confer a right to travel to another Member State unless for an authorised reason. It can be revoked in exceptional circumstances, for example to comply with an extradition request.98

Procedural guarantees

2.25The Commission recognises that its objective of shortening asylum procedures should not adversely affect applicants’ right to an “adequate and comprehensive” examination of their claim for international protection. The proposed Regulation would include the following procedural guarantees, most of which build on existing rights contained in the 2013 Asylum Procedures Directive:

2.26The Commission considers that extending access to legal assistance and representation is necessary to ensure that applicants are able to exercise their rights within the shorter time limits envisaged in the proposed Regulation and to improve the quality of decision making at the initial (administrative) stage, possibly reducing the number of appeals or the proportion of decisions that are overturned on appeal.

Stronger procedural safeguards for vulnerable applicants and unaccompanied children

2.27The main innovation in relation to unaccompanied asylum-seeking children is the requirement to appoint a guardian for each child. The guardian would be responsible for safeguarding the child’s best interests and “general well-being” and would be able to represent and assist the child throughout the asylum procedure.102 Where necessary, the guardian could also exercise legal capacity on behalf of the child.103 To ensure that guardians are able to perform their tasks effectively and that unaccompanied children receive adequate support, the proposed Regulation stipulates that a guardian should not be assigned a “disproportionate” number of children. The Commission believes that greater standardisation of guardianship practices is needed across the EU:

“Disparities among the various guardianship systems for unaccompanied minors in the Member States may lead to procedural safeguards not being adhered to, to minors not receiving adequate care or to them being exposed to risk or precarious situations and possibly leading them to abscond.”104

2.28The “best interests of the child” must be the primary consideration when assessing all applications made by or on behalf of a child (whether or not accompanied) and each child is entitled to a personal interview which must be conducted in “a child-sensitive and context-appropriate manner”.105

2.29More generally, the proposed Regulation would require national authorities to assess “systematically” whether each applicant for international protection is vulnerable and in need of special procedural guarantees as soon as an application is made. Vulnerability may be inferred from physical signs or the applicant’s statements or behaviour. Applicants who may have been subject to “torture, rape or another serious form of psychological, physical, sexual or gender-based violence” which may, as a result, adversely affect their ability to participate in the asylum procedure, must be referred to a doctor or psychologist for further assessment of their psychological and physical state. The outcome of their physical examination should be taken into account in determining the type of special procedural support they need.106

The use of accelerated and border procedures

2.30The 2013 Asylum Procedures Directive allows but does not require Member States to apply an accelerated examination procedure in certain circumstances.107 The proposed Regulation would make this procedure compulsory for applications which are “prima facie manifestly unfounded” for the following reasons:

2.31The accelerated examination procedure should be concluded within two months (or eight working days if the application has been made to delay or frustrate a return decision). National authorities may revert to the regular procedure if the application involves complex issues of fact or law.

2.32The use of border procedures—where a decision on the merits of an application for international protection is taken at the border or within a transit zone—would remain optional under the proposed Regulation. A border procedure may be used to determine the admissibility of an application for international protection or to consider the merits in cases which would otherwise be subject to the accelerated procedure. The procedure must be completed within four weeks—any delay means that the applicant must be admitted to the territory of the Member State concerned so that the application can be considered under the accelerated or regular asylum procedure.109 The reason given by the Commission for the shorter time limit is that border procedures “normally imply the use of detention”.110

2.33The Commission makes clear that all of the usual procedural safeguards apply to applicants whose claims are being examined under an accelerated or border procedure. The proposed Regulation limits the circumstances in which these procedures can be applied to unaccompanied children and specifies that they may only be applied to other vulnerable applicants if they are guaranteed adequate support.111

Admissibility of applications for international protection

2.34The proposed Regulation would require Member States to reject an application as inadmissible if the applicant has come either from a first country of asylum outside the EU or a safe third country and can safely be returned to that country. The procedure for determining admissibility on these grounds must be concluded within ten working days. A one month time limit applies where the admissibility procedure concerns “subsequent applications”—those made following the rejection of an earlier application and which raise no new elements or findings—or separate applications made by a spouse, partner or accompanied child who previously consented to an application being made on their behalf.112 Applications found to be inadmissible are not examined on their merits but “the basic principles and guarantees” set out in the proposed Regulation largely apply. Under the changes proposed by the Commission to the Dublin rules, the first Member State in which an application for international protection is lodged should carry out the admissibility procedure if the applicant is from a first country of asylum or a safe third country.113 The admissibility procedure need not be applied in cases which are considered to be manifestly unfounded.114

Treatment of subsequent applications

2.35The changes proposed by the Commission are intended to clarify and simplify the treatment of subsequent applications and prevent their use as a means of delaying or frustrating the conclusion of the asylum procedure. An application made by the same applicant, following the rejection of an earlier application for international protection, would (as now) be subject to a preliminary examination to determine whether there are any “relevant new elements or findings” which would significantly increase the likelihood of being granted international protection or reversing an earlier finding of inadmissibility. The preliminary examination would involve written submissions and, in most cases, a personal interview unless it is clear that there are no new elements or that the application is “clearly without substance and has no tangible prospect of success”. The applicant would not, however, be entitled to free legal assistance and representation.115 The preliminary examination may result either in the opening of a new procedure to assess the merits of the application or the rejection of the application as inadmissible or manifestly unfounded. If the latter, Member States would be entitled (but not required) to withdraw the right to remain on their territory pending any appeal.116

Safe country concepts

2.36The Commission considers that the concept of “safe countries” is an essential tool to support the swift processing of applications for international protection. The 2013 Asylum Procedures Directive includes rules on safe countries but leaves it to Member States to decide whether or not to apply them. The proposed Regulation would introduce harmonised rules on safe countries and make it compulsory for Member States to apply them.

2.37There are three categories of safe countries: the first country of asylum, a safe third country, and a safe country of origin. Under the first country of asylum concept, an application made by an individual who has come from a country in which she or he enjoyed “sufficient protection”, as defined in the proposed Regulation, and where that protection would continue to be available if she or her were returned, must be rejected as inadmissible.117 Similarly, an application made by an individual who has come from a safe third country, as defined in the proposed Regulation, must also be rejected as inadmissible.118 The main difference between the first country of asylum and the safe third country concepts is that, for the former, the applicant has already enjoyed some form of protection, whereas for the latter, there is a possibility of obtaining similar protection.119

2.38The first country of asylum concept only applies if the applicant has previously been given protection in a third country. By contrast, the safe third country concept applies if the circumstances of an individual applicant appear to meet the conditions set out in the proposed Regulation or if the applicant has a connection with a third country formally designated as “safe” at EU level or (but only for a five-year transitional period) at national level. The reason for the transitional period is to give time for the Commission to propose a fully harmonised list of safe third countries which would replace national lists and guarantee that the safe third country concept is applied in the same way in all Member States.120

2.39The third category—the safe country of origin concept—only applies to countries which meet the conditions set out in the proposed Regulation and have been formally designated as safe.121 Applications for international protection made by nationals of a designated safe country of origin are dealt with by an accelerated procedure and must be rejected as “manifestly unfounded” if the applicant is unable to demonstrate that the country is unsafe in his or her individual circumstances.122 Annex 1 to the proposed Regulation designates seven safe countries of origin: Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia and Turkey.123

2.40In September 2015, the Commission proposed a separate Regulation establishing a common EU list of safe countries of origin which includes the same seven countries.124 The Commission expects this more limited Regulation to be adopted first but says that it should subsequently be incorporated into the proposed new Asylum Procedures Regulation before it is adopted and the earlier Regulation repealed. The Commission’s aim is to move towards fully harmonised designations of safe countries of origin at EU level. It therefore proposes that national lists of safe countries of origin as well as safe third countries should be phased out during a five-year transitional period.125 The Commission expects the proposed EU Asylum Agency to play an important role in providing the evidence base to support EU-level designations of safe third countries and safe countries of origin.

Right to an effective remedy

2.41The right to an effective remedy means that applicants should be able to challenge an adverse decision on its facts and on points of law and to remain pending the outcome of an appeal. There are exceptions to the right to remain but, where they apply, an applicant is entitled to seek a ruling from the court allowing him or her to stay pending an appeal. In such cases, the proposed Regulation confers more extensive rights than the 2013 Asylum Procedures Directive.126 It stipulates that applicants shall have “the necessary interpretation, legal assistance and sufficient time” to make their case to the court requesting leave to remain pending the outcome of their appeal.127 The Commission considers that more extensive rights are justified as the proposed Regulation would introduce strict and binding time limits for lodging an appeal.128

2.42The 2013 Asylum Procedures Directive requires Member States to “provide for reasonable time limits” to enable applicants to exercise their right to an effective remedy. By contrast, the proposed Regulation would require appeals to be lodged within time limits varying from one week to one month, depending on the grounds on which an application for international protection has been rejected.129 It also stipulates that decisions on appeal should be given within six months in cases where the regular asylum procedure has been applied and within one or two months in cases involving different procedures (for example, an admissibility procedure, an accelerated or a border procedure). A three month extension is possible if the decision on appeal involves complex issues of fact or law.130 The Commission considers that time limits are necessary to “ensure equity and effectiveness in the procedure and to meet the overall objective of greater harmonisation”.131

Withdrawal of international protection

2.43The proposed Regulation reflects changes contained in the proposed Regulation establishing the criteria for determining who qualifies for international protection which would require Member States to undertake regular status reviews to verify whether there is a continuing need for protection. As these status reviews would be compulsory, the proposed Regulation would strengthen existing procedural guarantees to ensure that the individuals concerned have the right to a personal interview before any decision is made to withdraw international protection and, in the event of an adverse decision, to have access to free interpretation services and to legal assistance and representation.132

Legal base and subsidiarity

2.44The proposed Regulation is based on Article 78(2)(d) of the Treaty on the Functioning of the European Union (TFEU) which authorises the EU to adopt measures establishing common procedures for the granting and withdrawal of a uniform refugee or subsidiary protection status. The Commission considers that further action is needed at EU level to replace divergent national asylum procedures with a common procedure which is governed by the same rules and ensures “equity in the treatment of applications for international protection, clarity and legal certainty for the individual applicant” regardless of the Member State in which the application is made. The Commission adds:

“Member States cannot individually establish common rules which will reduce incentives for asylum shopping and secondary movements between Member States. Therefore, action by the Union is required.”133

The Minister’s Explanatory Memorandum of 4 August 2016

2.45The Minister explains that the UK opted into and remains bound by the first Asylum Procedures Directive adopted in 2005, but did not opt into the 2013 Asylum Procedures Directive which the proposed Regulation would repeal and replace. The Commission’s own explanatory memorandum accompanying the proposal indicates that some elements largely reflect the 2013 Asylum Procedures Directive and, as such, do not represent significant change. The Minister notes that this is not necessarily the case for the UK since its obligations stem from the earlier 2005 Directive. He does not attempt an “exhaustive” analysis of all aspects of the proposed Regulation but focuses on the Commission’s choice of legal instrument and the “main thematic areas” it covers.

The use of a Regulation instead of a Directive

2.46The Minister notes that a Regulation is directly applicable. Any domestic asylum laws conflicting with the proposed Regulation would have to be amended if the UK were to opt into the proposal. He suggests that moving from a standard-setting Directive to a Regulation that “by its nature restricts flexibility” would have “profound implications for national sovereignty”, adding:

“We therefore anticipate that the negotiations in Council will be complex, as many Member States seek to maintain their sovereignty in this policy area.”134

Simpler, clearer and shorter procedures

2.47The Minister notes that the setting of time limits to access the asylum procedure is based on a three-step approach: making, registering and lodging an application for international protection. The first step—making an application—occurs when an individual “expresses a wish for international protection”.135 He expresses concern that “there remains the possibility of a considerable gap in time” between indicating a wish to apply for asylum and the actual transmission of an applicant’s fingerprints to the Eurodac database. Under the current Eurodac Regulation, the 72-hour time limit for taking and transmitting fingerprints to the Eurodac database starts to run from the formal lodging of an application for international protection.136 The Minister continues:

“We believe that in order to ensure accurate records of ‘asylum seeking’ individuals in Eurodac there should be greater alignment between the time when an individual identifies themselves to competent national asylum authorities as an asylum seeker and his or her data being recorded in Eurodac as such. This would reduce the opportunities for early secondary movements of ‘asylum seekers’ to go unnoticed in terms of comparisons made within the Eurodac database.”137

2.48In order to meet the time limits prescribed by the proposed Regulation, Member States would be required to assess the resource needs of their asylum authorities and put in place contingency plans where necessary to ensure that they have the capacity to deal effectively with a large number of asylum applicants. The Minister notes that successive Dublin Regulations have included a similar provision requiring Member States to ensure that there is adequate resourcing to meet their obligations. He comments:

“It is laudable that the Commission has included this requirement, but we note that enforcement of the Dublin Regulation’s resourcing provisions has not been visible and we have doubts about the effect of the similar provision here, although there is a clear additional commitment in the proposal that Member States’ authorities may be assisted by either the authorities of another Member State or experts deployed by the strengthened EU Asylum Agency for Asylum.”138

2.49The procedure for determining whether an application for international protection is admissible is closely linked to the Commission’s proposed revision of the Dublin Regulation which would require a Member State to consider admissibility before establishing the Member State responsible for examining the asylum application on its merits. The Minister notes that this has proved to be “a highly controversial element” of negotiations on the revised Dublin Regulation and he anticipates that this will affect negotiations on the linked provisions in the proposed Asylum Procedures Regulation, adding that they are “unlikely to be straightforward”.139

Stricter rules to combat abuse

2.50The Minister welcomes measures to discourage “abuses and secondary movements”, adding:

“The migration crisis has highlighted the challenges presented by large scale secondary movements. We are pleased to see that the Commission has set out clear obligations for applicants to cooperate with national authorities and has included consequences for non-compliance. We strongly support the proposal that the examination of an application for asylum is made conditional upon compliance with fingerprinting requirements, providing details about the claim and presence/staying in the Member State responsible for examining the claim. We also support the inclusion of provisions that turn procedural sanctions for abusive behaviour, secondary movements and manifestly (‘clearly’) unfounded claims that are currently optional into compulsory ones: for example the clear list of circumstances where an application must be examined in an accelerated procedure, rejected as manifestly unfounded or considered abandoned (withdrawn).

“Linked to the reform of the Dublin Regulation we welcome the proposal that applicants must make their application in the Member State of first entry or where he or she is legally present and that they should remain in the Member State in which they are required to be present.”140

Common guarantees for every applicant

2.51The Minister notes the Commission’s efforts to strike a balance between efficiency, so that a decision on an application for international protection—whether positive or negative—can be given in the shortest possible time, and the proper examination of an application for international protection. He explains that a number of procedural safeguards, such as the right to a personal interview, are subject to exceptions:

“A personal interview on the merits of the application for protection may be omitted where a positive decision declaring an application admissible or that refugee status is merited can be taken on the evidence already available. An interview may also be omitted if the applicant is unfit or unable to be interviewed owing to ‘enduring circumstances beyond his or her control’.”141

2.52The Minister expresses concern that these provisions, which limit the circumstances in which a personal interview can be dispensed with, would conflict with current practice under the UK Immigration Rules—for example, an interview can be omitted (under paragraph 339NA of the Immigration Rules) if an individual raises issues which are not relevant to the examination of his or her application or the application is made merely to delay or frustrate the enforcement of an earlier or imminent decision that would result in removal.

2.53The Minister anticipates that Member States may have to increase the financial and human resources available to their asylum authorities to ensure that they are able to process applications more effectively while also complying with the procedural guarantees set out in the proposed Regulation. Although Member States are encouraged to seek support from the proposed EU Agency for Asylum, the Minister considers that a “one size fits all” approach will present “considerable challenges”, particularly when seen in the context of the Commission’s wider asylum reform package. He notes that the new fairness mechanism in the proposed revision of the Dublin Regulation is intended to ensure a more equitable distribution of asylum seekers amongst Member States and is likely to “significantly increase the number of applicants in some Member States that have previously not encountered large numbers of applicants”. He expects “issues of increased financial and administrative burdens at national level to feature heavily during the negotiations”.142 If the UK were to opt into the proposed Regulation, the Minister anticipates that there would be “significant additional financial implications” to bring the UK’s asylum system and procedures into line with the new requirements. There would also be an additional call on the resources of the proposed EU Agency for Asylum.143

2.54The Minister welcomes the inclusion of additional procedural guarantees for unaccompanied asylum-seeking children and other applicants with special procedural needs, as well as clarification that Member States may use accelerated procedures in these cases if adequate support and assistance is available.

Harmonised rules on safe countries

2.55The Minister “agrees entirely” with the principle that asylum claims should be declared inadmissible if an individual “could and should have claimed asylum in a safe third country or first country of asylum”, adding:

“This is vital so that we can tackle asylum shopping and take action to prevent the irregular movements of migrants across Europe.”144

2.56He notes the Commission’s intention to develop a harmonised list of safe third countries and acknowledges the benefits of a common approach, but questions how feasible it will be, given differences between Member States on the third countries to be included. He continues:

“The debate at EU level on safe countries of origin is more advanced than that on safe third countries: this proposal therefore contains a common list of safe countries of origin reflecting recent discussions on the separate Commission proposal published in September 2015 […]. As a result the list contains Turkey, although the list is still subject to negotiation in its own right.”145

Subsidiarity

2.57The Minister can see some merit in the case made by the Commission for a common asylum procedure which ensures equitable treatment for all asylum applicants while reducing incentives for “asylum shopping and secondary movements” between Member States. He nevertheless considers that there is “equally an argument that Member States could achieve this individually, taking into account their national circumstances” and adds:

“By choosing the form of a Regulation, which is directly applicable in all Member States, the Commission seeks to achieve a higher degree of harmonisation and greater uniformity in the outcome of procedures across the Member States. This does, however, reduce the ability of Member States to set their own procedural standards and so has a more profound impact on national sovereignty, which is of concern to many Member States, including the UK.”146

The UK’s Title V opt-in decision

2.58The Minister notes that the UK’s Title V opt-in applies to the proposed Regulation and that the three-month deadline for notifying the UK’s opt-in decision is expected to expire on 8 December (time starts to run from the date on which the last language version is published). He says that the Government is committed to taking all opt-in decisions on a case-by-case basis, “putting the national interest at the heart of the decision making process”. He sets out the factors which will inform the Government’s opt-in decision:

Timetable for negotiations

2.59Following a “high-level presentation” of the key features of the proposal to the Council in July, detailed negotiations are expected to begin in September. The Minister notes that negotiations will run concurrently with discussions on other elements of the Commission’s asylum reform package and that an agreed text is unlikely to emerge this year.

Previous Committee Reports

None on this document, but see our earlier Report on the Commission Communication, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe: Thirty-third Report HC 342-xxxii (2015–16), chapter 3 (11 May 2016) and our Reports on the first package of EU asylum reform proposals (proposed Regulations on the Dublin rules, Eurodac and the EU Agency for Asylum): Sixth Report HC 71-iv (2016–17), chapter 1 and chapter 2 (15 June 2016) and Seventh Report HC 71-v (2016–17), chapter 1 (6 July 2016).

67 The term “asylum” and “international protection” are used interchangeably in this chapter. They encompass claims which result in the conferral of refugee status under the UN Refugee Convention and other forms of subsidiary protection which are not a direct result of individual persecution but where an individual would be at risk of “serious harm” (including from armed conflict) if returned to his or her country of origin.

68 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

69 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

70 See our Sixth Report HC 71-iv (2016–17), chapter 1 and chapter 2 (15 June 2016) and our Seventh Report HC 71-v (2016–17), chapter 1 (6 July 2016).

71 See the Commission’s fact sheet on its proposed reform of the common European asylum system.

72 See the press release issued by the Commission on 13 July 2016.

73 See para 14 of the Minister’s Explanatory Memorandum.

74 See paras 18 and 26 of the Minister’s Explanatory Memorandum.

75 See para 13 of the Minister’s Explanatory Memorandum.

76 See our Sixth Report HC 342-vi (2015–16), chapter 8 (21 October 2015) and our Sixteenth Report HC 342-xv (2015–16), chapter 13 (6 January 2016).

77 The 2005 Directive applies to all Member States except Denmark. The 2013 Directive does not apply to Denmark, Ireland or the UK.

78 See p.8 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

79 See pp.3–4 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

80 See p.4 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

81 See pp.4 and 11 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

82 See the Commission’s infographic on the changes proposed.

83 See Article 32(2) of the proposed Regulation.

84 See Articles 27–8 on registering and lodging an application for international protection. The time limit for registering and lodging an application may be extended from three to 10 working days and from 10 working days to up to one month respectively. Article 34 envisages that the six month deadline for concluding the initial examination may be extended by no more than three months.

85 See Article 34(5) of the proposed Regulation.

86 See Article 5 of the proposed Regulation.

87 See Articles 36, 44 and 45 of the proposed Regulation.

88 See Article 34(1) of the proposed Regulation.

89 See Article 34(1) of the proposed Regulation.

90 See Article 40(2) of the proposed Regulation.

91 See Article 7(1) of the proposed Regulation.

92 See Article 7(2) of the proposed Regulation.

93 See Articles 7(4) and (5) of the proposed Regulation.

94 See Articles 7(3), 39 and 40(1)(g) of the proposed Regulation.

95 See Article 8(2) of the proposed Regulation. Under Article 31(8)(i) of the 2013 Asylum Procedures Directive, a failure to provide fingerprints is one of the grounds for applying an accelerated procedure.

96 See Article 29 of the proposed Regulation.

97 See Article 8(2) of the proposed Regulation.

98 See Article 9 of the proposed Regulation.

99 See Articles 10–12 of the proposed Regulation.

100 See Article 13 of the proposed Regulation.

101 See Articles 14–17 of the proposed Regulation.

102 See Article 22 of the proposed Regulation.

103 See Article 4(2)(f) of the proposed Regulation.

104 See p.15 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

105 See Article 22 of the proposed Regulation.

106 See Articles 19 and 20 of the proposed Regulation. Although the assessment takes place at an early stage in the asylum procedure, the proposed Regulation recognises that the need for special procedural guarantees may be identified (and should be addressed) at a later stage.

107 See Article 31(8) of the 2013 Asylum Procedures Directive.

108 See p.16 of the Commission’s explanatory memorandum and Article 40 of the proposed Regulation.

109 See Article 41 of the proposed Regulation.

110 See p.16 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

111 See Articles 19(3), 40(5) and 41(5) of the proposed Regulation.

112 See Articles 34 and 36 of the proposed Regulation.

113 See our Sixth Report HC 71-iv (2016–17), chapter 1 (15 June 2016).

114 See Article 36 of the proposed Regulation.

115 See Article 15(3)(c) of the proposed Regulation.

116 See Articles 42–3 of the proposed Regulation.

117 See Articles 36 and 44 of the proposed Regulation.

118 See Articles 36 and 45 of the proposed Regulation.

119 See p.18 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

120 See p.18 of the Commission’s explanatory memorandum and Article 46 of the proposed Regulation.

121 See Article 47 of the proposed Regulation.

122 See Article 37(3) of the proposed Regulation.

123 See Article 48 of the proposed Regulation and ADD 1.

124 See our Sixth Report HC 342-vi (2015–16), chapter 8 (21 October 2015) and our Sixteenth Report HC 342-xv (2015–16), chapter 13 (6 January 2016).

125 See p.19 of the Commission’s explanatory memorandum and Articles 48 and 50 of the proposed Regulation.

126 Article 46(7) of the 2013 Asylum Procedures Directive limits the applicant’s right to apply to a court to remain in a Member State pending an appeal to decisions made at the border.

127 See Article 54 of the proposed Regulation.

128 See p.20 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

129 See Article 53(6) of the proposed Regulation.

130 See Article 55 of the proposed Regulation.

131 See p.12 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

132 See Articles 51–52 of the proposed Regulation.

133 See pp.6–7 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

134 See para 18 of the Minister’s Explanatory Memorandum.

135 See Article 25 of the proposed Regulation.

136 The same 72-hour time limit applies under the Commission’s proposed revision of the Eurodac Regulation but it would also apply to the transmission of facial images as well as fingerprints.

137 See para 20 of the Minister’s Explanatory Memorandum.

138 See para 21 of the Minister’s Explanatory Memorandum.

139 See para 22 of the Minister’s Explanatory Memorandum.

140 See paras 23–24 of the Minister’s Explanatory Memorandum.

141 See para 25 of the Minister’s Explanatory Memorandum.

142 See para 26 of the Minister’s Explanatory Memorandum.

143 See para 33 of the Minister’s Explanatory Memorandum.

144 See para 28 of the Minister’s Explanatory Memorandum.

145 See para 29 of the Minister’s Explanatory Memorandum.

146 See paras 12–13 of the Minister’s Explanatory Memorandum.

147 See paras 15–17 of the Minister’s Explanatory Memorandum.



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16 September 2016