9 January 2015
ECRE has published an Information Note on the EU’s recast Asylum Procedures Directive providing a detailed analysis of the key provisions in the Directive and recommendations on how to transpose and implement those provisions. ECRE strongly encourages Member States to take full advantage of the Directive’s provision to introduce or retain ‘more favourable standards on procedures for granting and withdrawing international protection’, thus ensuring compliance with obligations under international human rights law, the EU Charter of Fundamental Rights and the case-law of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU(CJEU).
According to ECRE, the recast Asylum Procedures Directive, adopted in June 2013 represents, in many aspects, an important improvement with regard to procedural guarantees for asylum seekers. ECRE welcomes the progress made on a number of topics. For example, the new directive sets out that Member States may only omit a personal interview in the asylum process under limited circumstances. This represents a positive step towards guaranteeing a fairer asylum procedure. According to the recast directive, Member States also have an obligation to ensure that staff examining asylum claims in the refugee determination process are properly trained. The right of asylum seekers to challenge adverse decisions before the law is also strengthened in the new directive, which states explicitly that time limits on applications to challenge decisions must be of a reasonable length and not make the challenge impossible or excessively difficult.
However, ECRE’s information note also explores some of the disappointing aspects of the Directive, including the overall complexity of the document. ECRE feels that little progress has been made with regard to the previous directive on the subject of safe third country concepts. The Directive allows EU states to establish a list of countries which are considered generally ‘safe’. This creates the presumption that applications for asylum may not be based on a well-founded fear of persecution and are therefore unlikely to be successful. In ECRE’s view, the application of a safe country of origin concept distracts from the true purpose of the asylum procedure, which is the individual examination of the protection needs of the asylum seeker. Although the directive now clearly defines the grounds on which the examination of asylum claims may be accelerated, ECRE is concerned that a number of the grounds listed are open to wide interpretation and are not directly linked to the substance of the asylum application.
The recast Directive allows for considerable flexibility for Member States in the interpretation and application of a number of its key provisions. Articles related to the protection of unaccompanied children are also overly complex. ECRE therefore urges Member States, among other things, to prioritise the examination of unaccompanied children’s asylum claims and not to make use of the possibility in the directive to use accelerated or border procedures, which could jeopardise unaccompanied children’s effective access to a fair asylum procedure.
Member States bound by the Directive are required to bring into force compliant domestic legislation by 21 July 2015 for the majority of the Directive. Some provisions relating to the time limits for concluding an examination procedure at first instance must be transposed by 20 July 2018. The Directive sets out the principle that the examination of an asylum application must be concluded within 6 months from the time of lodging. However, Member States may extend this time limit for another 9 months or even 12 months. Three EU countries, Denmark, Ireland and the United Kingdom are not bound by the recast Directive.
This article originally appeared in the ECRE Weekly Bulletin of 9 January 2015. You can subscribe to the Weekly Bulletin here.