The ECRE Comments Paper on the Asylum Procedures Regulation (the APR) has been published. The Regulation establishing a common procedure for international protection in the Union was adopted in June 2024 as one of the central pillars of the reform of EU asylum law of the Common European Asylum System (CEAS). The reform has culminated in the adoption of new legislation presented in the New Pact on Migration and Asylum of 2020, in the asylum package of 2016 and the Instrumentalisation package of 2021.
ECRE’s Comments on the APR is its latest analysis of the new legislation, following the publication of Comments on the Asylum and Migration Management Regulation (AMMR) and the Crisis and Force Majeure Regulation. Comments on the recast Reception Conditions Directive, the Screening Regulation, and Qualification Regulation will follow, along with a summary of the Comments on the APR.
The files that form part of the reform, including the APR, will enter into application after a transition period of two years, thus in summer 2026. In the meantime, the European Commission has published an implementation plan and Member States are now developing national implementation plans to be ready by December 2024.
The Comments on the APR assess the legal content of the new Regulation and analyse changes compared to the current Asylum Procedures Directive (Directive 2013/32/EU). The Comments also identify relevant case law, areas of legal uncertainty, and potential legal challenges. The Comments include extensive recommendations for the implementation of the new rules.
The APR seeks to harmonise procedural requirements across the Member States with the objective “to streamline, simplify and harmonise the procedural arrangements of the Member States”. At the same time, it adds considerable complexity by proposing the expanded use of special procedures, including accelerated and border procedures and the use of inadmissibility assessments, including the mandatory use of special procedures in some circumstances. Despite the move towards harmonisation including through the transition from a directive to a regulation, the Member States retain considerable discretion.
The APR proposal was presented in 2016 by the European Commission which then presented amendments to the proposal in 2020. During the negotiations, the co-legislators, the Council and the European Parliament, added to the complexity by amending the categories of applicants for whom different procedures may or must apply, and by amending the exemptions to the use of special procedures.
The original 2016 proposal both enhanced some procedural guarantees (provision of legal assistance) and restricted others (the right to a remedy, the use of detention, safeguards for vulnerable applicants). Again, the co-legislators put forward extensive amendments, many of which are integrated into the final text. Very often, the proposed amendments pulled in opposite directions, with the Council’s amendments further undermining protection standards and Parliament’s amendments improving protection standards (often slightly and only in comparison to the proposals), although there are also examples of the opposite. In the negotiations, the Council’s positions largely prevailed, as reflected in the final text. While many safeguards – including those proposed by ECRE and other civil society commentators – were included in the final text, with very few exceptions the changes brought about by the APR represent a deterioration in protection standards compared to the status quo.
Cumulatively, compared to the current APD, the APR will mean that more people will be detained in centres, usually at the border, and have their applications heard in border procedures. It is likely that fewer people will receive protection in Europe given the expanded use of special procedures and the erosion of procedural guarantees, and particularly the restrictions on the right to an appeal in a context where consistently around one-third of cases that go to appeal or review culminate in the granting of a protection status to the applicant. ECRE is also concerned that there may be more denials of entry due to the increased responsibilities of countries at the external borders. For these and other reasons, ECRE campaigned against the APR, while also proposing amendments to limit its negative impact. With this ECRE Comments paper, the main substantive elements of the final text are analysed, with recommendations for implementation in conformity with international law, EU primary law and the jurisprudence of the European Courts.
The comments paper is available here.