Explanatory Memorandum to COM(2016)466 - Standards for the qualification of third-country nationals as beneficiaries of international protection, for a uniform status for refugees and for the protection granted - EU monitor

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Explanatory Memorandum to COM(2016)466 - Standards for the qualification of third-country nationals as beneficiaries of international protection, for a uniform status for refugees and for the protection granted

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1. CONTEXT OF THE PROPOSAL

1.

Context and reasons for the proposal


The European Union is working towards 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. Since the adoption of the European Agenda on Migration, 1 the European Commission has been working to implement measures to address both the immediate and the long-term challenges of managing migration flows effectively and comprehensively.

The Common European Asylum System is based on rules determining the Member State responsible for applicants for international protection (including an asylum fingerprint database), common standards for asylum procedures, reception conditions, recognition and protection of beneficiaries of international protection. In addition, a European Asylum Support Office supports Member States in the implementation of the Common European Asylum System.

Notwithstanding the significant progress that has been made in the development of the Common European Asylum System, there are still notable differences between the Member States in the types of procedures used, the reception conditions provided to applicants, the recognition rates and the type of protection granted to beneficiaries of international protection. These divergences contribute to secondary movements and asylum shopping, create pull factors and ultimately lead to an uneven distribution among the Member States of the responsibility to offer protection to those in need.

Recent large scale arrivals have shown that Europe needs an effective and efficient asylum system able to assure a fair and sustainable sharing of responsibility between Member States, to provide sufficient and decent reception conditions throughout the EU, to process quickly and effectively asylum claims lodged in the EU, and to ensure the quality of the decisions made so that those who are in need of international protection effectively obtain it. At the same time, the EU needs to address irregular and dangerous movements and to put an end to the business model of smugglers. To this end asylum applications of those who are not entitled to international protection must, on the one hand, be dealt with quickly and these migrants must then be returned quickly. On the other hand, safe and legal ways to the EU for those from third countries who need protection need to be opened. It is also part of a wider partnership with priority countries of origin and transit.

On 6 April 2016, the Commission set out its priorities for a structural reform of the European asylum and migration framework in its Communication Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, 2 outlining the different steps to be taken towards a more humane, fair and efficient European asylum policy as well as a better managed legal migration policy.

On 4 May 2016, the Commission presented a first set of proposals to reform the Common European Asylum System delivering on three priorities identified in its Communication: establishing a sustainable and fair Dublin system for determining the Member State responsible for examining asylum applications, 3 reinforcing the Eurodac system to better monitor secondary movements and facilitate the fight against irregular migration 4 and establishing a genuine European Agency for Asylum to ensure the well-functioning of the European asylum system. 5 These proposals were the first building blocks to reform the structure of the Common European Asylum System.

With the second package, the Commission is completing the reform of the Common European Asylum System by adopting four additional proposals: a proposal replacing the Asylum Procedures Directive with a Regulation, 6 harmonising the current disparate procedural arrangements in all Member States and creating a genuine common procedure; a proposal replacing the Qualification Directive 7 with a Regulation, 8 setting uniform standards for the recognition of persons in need of protection and the rights granted to beneficiaries of international protection as well as a proposal revising the Reception Conditions Directive 9 to further harmonise reception conditions in the EU, increase applicants' integration prospects and decrease secondary movements. Finally, following-up on the commitment to enhance legal avenues to the EU as announced on 6 April 2016, the Commission is also proposing a structured Union resettlement framework, moving towards a more managed approach to international protection within the EU, ensuring orderly and safe pathways to the EU for persons in need of international protection, with the aim of progressively reducing the incentives for irregular arrivals 10 .

These proposals are an indispensable part of the comprehensive reform of the Common European Asylum System and are closely interlinked. With this second stage of legislative proposals reforming the asylum acquis, all the elements of a solid, coherent and integrated Common European Asylum System, based on common, harmonised rules that are both effective and protective, fully in line with the Geneva Convention, are now on the table.

The Common European Asylum System that we are further developing is both effective and protective and is designed to ensure full convergence between the national asylum systems, decreasing incentives for secondary movements, strengthening mutual trust between Member States and leading overall to a well-functioning Dublin system.

It guarantees that, wherever they are in the EU, asylum seekers are treated in an equal and appropriate manner. It provides for the tools needed to ensure quick identification of persons in genuine need of international protection and return of those who do not have protection needs. It is generous to the most vulnerable and strict towards potential abuse, while always respecting fundamental rights. The common system is finally cost-effective and flexible enough to adapt to the complex challenges Member States have in this area.


2.

Objectives of the present proposal


The Qualification Directive sets out criteria for applicants to qualify for asylum and subsidiarity protection, and rights for persons who benefit from these statuses. While the existing recast Qualification Directive 11 has contributed to some level of approximation of the national rules, it appears that recognition rates still vary between Member States and there is equally a lack of convergence as regards decisions on the type of protection status granted by each Member State 12 . In addition, there is a considerable variation among Member States' policies in the duration of the residence permits granted, as well as regards to access to rights. Moreover, the current provisions on cessation of status are not systematically used in practice, which means that Member States do not always ensure that international protection is granted only for so long as the risk of persecution or serious harm persists, even though EU law provides for this. Finally, some of the rules in the recast Qualification Directive, providing common criteria for recognising applicants, are optional by their nature (i.e.: the duty of the applicant to substantiate the application, the rules relating to an assessment of internal protection, optional withdrawal grounds) and allow Member States a wide degree of discretion.

The above differences in recognition rates and in the level of rights in the national asylum systems attached to the protection status concerned provide strong indication of the need for a more harmonised approach. These differences can create incentives for applicants for international protection to claim asylum in Member States where those rights and recognition levels are perceived to be higher than others rather than in the Member State which would be responsible for their applications under the Dublin rules. In addition there is also need to address possible secondary movements of beneficiaries of international protection by clarifying that they are to reside in the Member States which granted them protection.

The absence of checks on the continued need for protection gives the protection a de facto permanent nature, thereby creating an additional incentive for those in need of international protection to come to the EU rather than to seek refuge in other places, including in countries closer to their countries-of-origin.


Given the demonstrated need for harmonisation and the scope of proposed changes, it is proposed to replace the current Directive with a Regulation. Given its direct applicability this change in itself will contribute to further convergence and will ensure coherence with the proposed Asylum Procedures Regulation as well.

In view of the above, the proposal aims at:

1. Further harmonisation of the common criteria for recognising applicants for international protection by providing for more prescriptive rules and replacing the current optional ones as regards the duty of the applicant to substantiate the application, the assessment of internal protection alternatives and the grounds for withdrawal of the status in case the beneficiary of international protection represents a danger to the security of the Member State or has been convicted of a particularly serious crime.

2. More convergence of the asylum decisions across the EU by obliging determining authorities of the Member States, when assessing applications, to take into account the common analysis and guidance on the situation in the country of origin, provided at Union level by the European Union Agency for Asylum and the European networks on country of origin information in accordance with the new provisions of the proposed Regulation on the European Union Agency for Asylum 13 .

3. Ensuring protection is granted only for as long as the grounds for persecution or serious harm persist, without affecting person's integration prospects. The proposal imposes obligations upon Member States to carry out systematic and regular status reviews in case of significant changes in the situation in the country of origin as well as when they intend to renew the residence permits, for the first time for refugees and for the first and second time for beneficiaries of subsidiary protection. At the same time, within the framework of their entitlement to protection, it is essential that Member States promote the integration of beneficiaries into their societies. In this respect, the proposal clarifies the scope of the rights and obligations of beneficiaries of international protection. It also provides incentives for their active integration while protection is granted by allowing Member States to make the granting of certain social assistance conditional on effective participation in integration measures in line with the Action Plan on integration 14 . Finally, decisions ending refugee or subsidiary protection status shall take effect only after a period of three months providing persons whose status has been withdrawn with an effective opportunity to apply for another legal status, such as for work related purposes.

4. Addressing secondary movements of beneficiaries of international protection, by clarifying the obligations of a beneficiary to stay in the Member State which has granted protection and providing for additional disincentives through the modification of the Long-term Residents Directive 15 , by restarting the calculation of legal residence required there in case the beneficiary is found in another Member States without the right to reside or stay.

5. Further harmonising the rights of beneficiaries of international protection, in particular as regards the validity and format of the residence permits and by clarifying the scope of the rights and obligations of beneficiaries, in particular as regards social security and social assistance.

• Consistency with existing policy provisions in the policy area

This proposal, as was the case for its predecessor the recast Qualification Directive, is an essential part of the Common European Asylum System and is fully consistent with the first proposals to reform the Common European Asylum System presented on 4 May 2016 and with proposals for reforming the Asylum Procedures and Reception Conditions Directives, including a proposal to transform the former into a Regulation, and a proposal for the establishment of a structured Union resettlement system.

The proposal builds on the provisions of the proposal for a European Asylum Agency insofar as it obliges the determining authorities of the Member States to take into account, when assessing asylum applications, the country of origin information which it gathers and the common analysis and guidance to be issued by the Agency on such country of origin information. In addition, significant relevant changes in this common analysis and guidance are set as triggers for reviewing the status of beneficiaries on international protection.

With regards to the rights and obligations of applicants for international protection, the explicit obligation for them to substantiate the application with all the available elements and to cooperate mirrors the relevant provisions of the proposal to revise the Dublin Regulation 16 .

As regards the Asylum Procedures Regulation the two proposals are complementary to one other insofar the proposal sets the criteria for qualification and grounds for withdrawal while the Asylum Procedures Regulation provides for the procedural rules for the applications for international protection.

Consistency with other Union policies

This proposal is consistent with the comprehensive long-term policy on better migration management as set out by the Commission in the European Agenda on Migration 17 , which developed President Juncker's Political Guidelines into a set of coherent and mutually reinforcing initiatives based on four pillars. Those pillars consist in reducing the incentive for irregular migration, securing the Union's external borders and saving lives, as well as ensuring a strong asylum policy and a new policy on legal migration. This proposal, which further implements the European Agenda on Migration as regards the objective of strengthening the Union's asylum policy should be seen as part of the broader policy at EU level towards building a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for the third country nationals concerned and countries of origin and transit.


In addition, the proposed changes to the possible integration incentives can contribute to the objectives of the Integration Action Plan 18 .

.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

In view of the objective of the proposal to ensure, on the one hand, that Member States apply common criteria for the qualification of persons genuinely in need of international protection, and, on the other hand, that a common set of rights is available for those persons in all Member States, the legal basis is Article 78(2) (a) and (b) of the Treaty on the Functioning of the European Union (TFEU). These provisions establish that the EU enjoys powers to develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

Within these powers the EU can adopt measures providing for, inter alia:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union, and

(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection.

Article 79 (2) (a) of the TFEU is added as a legal base due to the proposed amendment to the Long-Term Residents Directive 2003/109/EC related to beneficiaries of international protection.

• Subsidiarity (for non-exclusive competence)

The current lack of convergence in the recognition rates and the differing status of protection granted to asylum seekers with similar claims within the EU, the duration of the residence permits, as well as the level of rights ensured to those granted international protection can incentivise 'asylum shopping' and secondary movements within the EU.

The objective is to replace the current Directive with a Regulation in view of facilitating greater convergence in the way similar asylum claims are decided and as regards the content of international protection granted, thus reducing incentives to move within the EU and ensuring that beneficiaries of international protection are treated equally across the EU.

Given that the Common European Asylum System entails common standards across the EU for all asylum seekers and beneficiaries of international protection, these objectives cannot be dealt with by Member States individually. Action at EU level is needed to help facilitate more convergence in terms of asylum decisions within the EU and mitigate these consequences.

Member States remain free to grant other forms of protection under national law.

Proportionality

In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve its objectives.

Despite the achievement of an important level of harmonisation by the adoption of Directives 2004/83/EC and 2011/95/EU, there is still considerable difference both as regards the recognition rates and type of protection status granted by each Member State as well as the content of the protection. Moreover, despite the obligation to withdraw the status when the risk of persecution or serious harm ceases, there are currently only few systematic status reviews by the Member States. Finally, the optional rules in the current Directive (i.e.: the duty of the applicant to substantiate the application, the rules relating to the assessment of internal protection, optional withdrawal grounds) provide for a degree of discretion in manner in which asylum claims are assessed.

More harmonised rules on qualification as well as on the content of protection will contribute to more convergence of the asylum decisions in the Member States and thereby to a better functioning of the Common European Asylum System, including a sustainable and fair system for determining the Member State responsible for asylum seekers as foreseen by the proposed revision of the Dublin Regulation.

The proposed changes do not go beyond what is necessary to achieve the purported objectives and concern areas where further harmonisation will have significant impact. In addition, the new provisions requesting the determining authorities in the Member States to take into account the common analysis and guidance provided by European Union Agency for Asylum on the situation in a given country of origin respond to the need to address a lack of adequate convergence as regards the asylum decisions adopted. The strengthening of the provisions on the cessation of the refugee or subsidiary protection status intends to tackle the fact that such provisions were already contained in the recast Qualification Directive but were not systematically applied by Member States. It is also proposed to clarify the rules concerning both the qualification for international protection status and the content of such status in the light of the case law of the Court of Justice of the European Union (CJEU), to clarify the scope of the rights granted, and to provide for harmonisation where needed, in particular as regards the validity and format of the residence permits and to provide for integration incentives in relation to social assistance. Finally, the change to the EU Long-term Residents Directive is proposed in order to discourage irregular movements of beneficiaries of international protection within the EU, without going beyond what is necessary to obtain a deterrent effect.

Variable geometry


The United Kingdom and Ireland are bound by the first Qualification Directive (Directive 2004/83/EC) following the notification of their wish to take part in the adoption and application of that Directive based on the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the TEU and to the TFEU. They have not opted in to the recast Qualification Directive (Directive 2011/95/EU).

In accordance with the above-mentioned Protocol, the United Kingdom and Ireland may decide to take part in the adoption of this proposal. They also have this option after adoption of the proposal.


Under the Protocol on the position of Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of 'measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas').


The participation of the United Kingdom, Ireland and Denmark in the arrangements laid down in this proposal repealing the recast Qualification Directive 2011/95/EU, will be determined in the course of negotiations in accordance with these Protocols. These Protocols notably allow the United Kingdom and Ireland, but do not require them, to opt into initiatives in the policy area of freedom, security and justice while respecting their operability.


Choice of the instrument

It is proposed to replace the current recast Qualification Directive with a Regulation, in view of achieving more convergence in asylum decision-making, by changing the present optional rules providing common criteria for recognising asylum applicants to obligatory rules, by further clarifying and specifying the content of international protection (in particular as regards the duration of residence permits and social rights) and by establishing rules aimed at preventing secondary movements.

The original Qualification Directive 2004/83/EC had already been recast, which resulted in the present recast Qualification Directive (2011/95/EU). While the instrument of a Directive has contributed to a considerable degree of approximation of the national rules, it appears nevertheless that recognition rates still vary between Member States and there is equally a lack of adequate convergence as regards the type of protection status granted.

In line with what has been announced in the Commission Communication of 6 April 2016 'Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe', in addition to the substantive changes to the current recast Qualification Directive, the form of the legal instrument is changed to a Regulation. This change in itself will contribute to further convergence by removing differences in transposition and ensuring direct applicability of the rules. Moreover this change will ensure coherence with the proposed Asylum Procedures Regulation, which is also proposed to be transformed into a Regulation.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

Ex-post evaluations of existing legislation

The European Commission commissioned two external studies in 2015 19 , one of which is focusing on the application of the present Qualification Directive by the Member States, and the other examining implementation problems, identifying shortcomings and assessing whether the current recast Qualification Directive has led to greater convergence in Europe. The Commission has been liaising closely with the contractors during the carrying out of this study, and has been able to draw on some of its tentative findings for the purposes of preparing the present proposal.

The study on implementation has found that the current recast Qualification Directive has in some areas contributed to a higher level of approximation of the national rules. However, it appears that in other fields, its practical application still varies significantly, leading to different outcomes from asylum applications across Member States in terms of recognition rates, even when applicants come from the same country of origin. Significant differences in the application of the recast Qualification Directive’s provisions are noted regarding the way facts and circumstances of applications are assessed, the assessment of ‘sur place’ applications and of protection alternatives and the application of the cessation clauses.

Furthermore, the set-up and application of country of origin information and safe country of origin lists, as well as the assessment of the credibility of the applicant during the examination of his or her well-founded fear of persecution or serious harm is noted as one of the main reasons behind the differences in recognition rates within the EU. The study also concludes that a higher level of harmonisation has been achieved with regard to aligning the content of rights granted to subsidiary protection beneficiaries with refugees (e.g. concerning access to employment, access to education or access to healthcare). However, variation among Member States’ practices in granting rights to refugees and beneficiaries of subsidiary protection remains in some countries regarding the granting of residence permits, travel documents, social assistance, the type and quality of integration programmes as well as repatriation assistance. Such differences are, on the one hand, the result of different interpretations of the provisions and, on the other hand, related to the extent to which Member States had transposed certain ‘may' clauses - in the form of optional limitations or the possibility for more favourable rules - into national legislation.

Stakeholder consultations

Following its Communication of 6 April 2016, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe 20 , the Commission launched a debate on the options for the future reform of the EU asylum rules.

In that context the Commission services discussed the Communication with Member States, non-governmental organisations (NGOs) and UNHCR in May, with the coordinators of the European Parliament's Committee on Civil Liberties in June 2016. The European Parliament has equally held a debate on the Communication in its plenary session on 11 May. Written contributions were also received.

Member States generally expressed support for further harmonisation. As regards the ways to achieve more convergence in relation to recognition rates and types of protection status granted, the focus was put on the importance of practical cooperation and the Agency guidelines.

As regards review of the protection status after it has been granted, there has been support in particular as regards a review triggered by a change in EU level County of origin information. At the same time some Member States warned of the administrative burden it could entail if there were to be a general and explicit obligation to do a cessation check each time a residence permit is renewed.

There has been also support for further harmonising the duration of the permits issued. However, a number of Member States indicated that the possibility to issue residence permits on other grounds (humanitarian or legal migration ground) upon cessation of the protection status should not be undermined, and of the importance of not unduly undermining integration prospects via the perception that the protection may only be temporary.

On the level of rights granted to beneficiaries, Member States did not generally support the idea of further differentiating between the two international protection statuses. Some Member States has asked for more flexibility as regards social welfare and health care while others stressed that there is room for further harmonisation as regard family reunification of subsidiary protection beneficiaries.

On secondary movements, there was some support for enhancing the provision of information regarding the obligation to remain resident in the Member State granting protection, so that the consequences of secondary movement are clear to the beneficiary.

On integration measures, the possibility of obliging beneficiaries to take part in offered language/civic orientation courses was referred to.

The coordinators of the Committee on Civil Liberties of the European Parliament cautioned against any lowering of standards. As regards the proposed status review, concerns were expressed as to its effect on integration prospects of beneficiaries. It has been also stressed that any measure to be taken must be proportionate and in conformity with the European Convention of Human Rights and the Charter of Fundamental Rights. Finally as regards free movement rights, it has been mentioned that beneficiaries should be eligible to the EU-long-term resident status (Directive 2003/109) before the current five years period, in order to enable them to enjoy free movement rights.

NGOs in general were not in favour of further harmonisation, fearing a lowering of standards, and expressed preference for better implementation of the current provisions and setting guidelines by the Agency. In the event of changing the current provisions, NGO's have expressed the need to fortify the applicants' rights.

On convergence, NGOs in general showed no support for the idea of making the application of the internal protection clause obligatory and did not support plans on obligatory cessation reviews, warning of negative effects to integration prospects and of creating an unnecessary administrative burden.

On rights, NGOs advocated to keep the more favourable treatment possibilities, including as regards the duration of permits and arguing against any further differentiation between refugee and subsidiary protection statuses.

On secondary movements, NGOs were not supportive of introducing sanctions, but instead underlined the need to better understand the reasons for secondary movement first and consider incentives. On plans to spell out more the information obligations of Member States, they supported more detailed rules.

On family reunification, NGOs stressed the need to assimilate the rights of subsidiary protection beneficiaries to those of refugees.

Collection and use of expertise

In addition to the Commission studies on the application and implementation of the recast Qualification Directive, relevant publications of EASO have been used for the preparation of this proposal, in particular the data collection as part of the 'Quality matrix' on eligibility and exclusion, as well as EASO practical guide on Article 15 (c) and judicial analysis on the Article 12 and 17 of the recast Qualification Directive.

Fundamental rights

The proposed Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the Charter). In particular this Regulation seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of the Charter's Articles relating to human dignity, respect for private and family life, freedom of expression and information, right to education, freedom to choose an occupation and right to engage in work, freedom to conduct a business, right to asylum, non-discrimination, rights of the child, social security and social assistance, health care, and should therefore be implemented accordingly. The proposal respects the prohibition of refoulement, as spelled out by Article 19 of the EU Charter, also when assessing asylum applications in relation to internal protection. The proposal strengthens the procedural guarantees, by spelling out the burden of demonstrating that the availability of internal protection rest on the determining authority and that the assessment is to be carried out once it has been established that the qualification criteria would otherwise apply.

The proposal equally respects the provisions on social assistance as provided for in Article 34 (3) of the Charter and Article 23 of the Geneva Convention, when allowing Member States to condition the granting of certain social assistance upon effective participation in integration measures and to impose residence conditions in relation to receiving certain social benefits, albeit requiring that such conditions can only be applied with the objective of facilitating the integration of beneficiaries of international protection.

The rights of women and babies during pregnancy, delivery and post-partum have in particular been taken into account. The proposal also takes into account Member States obligations under the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). In the light of the Commission's proposals for Council decisions for the signing and conclusion of the Istanbul Convention, and in view of guaranteeing women in need of international protection who have been subject to gender-based violence with a suitable level of protection, a gender-sensitive approach should be adopted when interpreting and applying this Regulation and will in any event be required after the conclusion of the Istanbul Convention by the EU.

4. BUDGETARY IMPLICATIONS

This proposal does not impose any financial or administrative burden on the Union. Therefore it has no impact on the Union budget.

5. OTHER ELEMENTS

Monitoring, evaluation and reporting arrangements

The Commission shall report on the application of this Regulation to the European Parliament and to the Council within two years from its entry into force and every five years after that. Member States shall be required to send relevant information for drafting that report to the Commission and to the European Union Agency for Asylum. The Agency will also be monitoring compliance with this Regulation by Member States through the monitoring mechanism which the Commission proposed to establish in its revision of the mandate of the Agency. 21

Detailed explanation of the specific provisions of the proposal

It is proposed to replace the current recast Qualification Directive with a Regulation. However, the content of the Directive is only changed a) in view of the political objectives listed in point 1, b) to the extent it was necessary to adapt its language to enable it to be directly applicable and c) to the extent that the existing provisions may need to be clarified in the light of relevant case law. Therefore the explanations below only concern those provisions where substantive changes have been introduced compared to the current recast Qualification Directive.

3.

1. Further harmonisation of the common criteria for recognising applicants for international protection


Article 3 -Material scope

The scope of the Regulation continues to be twofold: on the one hand, setting out the standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection and on the other setting out the content of the international protection which they are granted. Given that the choice of instrument of this proposal is a Regulation, there is no longer a provision allowing Member States to grant more favourable treatment. However Article 3 (2) states that Member States are free to grant a national humanitarian status to those who do not qualify under the present Regulation. In addition it is clarified, in a corresponding recital, that Member States can introduce national measures beyond what is regulated by the current Regulation, but only in a way which does not undermine the application of its provisions.

4.

Article 4 -Assessments of the facts


Article 4 (1) establishes the obligation of the applicant for international protection to substantiate the application; therefore the applicant is explicitly obliged to provide all the elements available to him or her, to cooperate and - mirroring the relevant provisions of the Dublin proposal 22 and that of the proposal for an Asylum Procedures Regulation - to remain present on the territory of the Member State throughout the procedure.

5.

Article 5- International protection needs arising sur place


Article 5 (3) has now been extended to permit Member States not to grant subsidiary protection status or refugee status, where an applicant for international protection files a subsequent application based on circumstances which he has created by his/her own decision since leaving the country of origin.

6.

Article 8- Internal protection


Article 8 (1) provides for a new obligation to assess the possibility of internal protection and if the conditions that he or she can safely and legally travel to, gain admittance to and can reasonably be expected to settle in another part of the country of origin are fulfilled, to determine that the applicant is not in need of international protection. In addition to establishing the obligation related to the assessment of international protection, safeguards have been equally added by Article 8 i to clarify how to assess the asylum application in this regard.

7.

Article 10- Reasons for persecution


In accordance with relevant case law of the Court of Justice of the European Union 23 Article 10 (3) clarifies that a determining authority cannot reasonably expect an applicant to behave discreetly or abstain from certain practices, where such behaviour or practices are inherent to his or her identity, to avoid the risk of persecution in his or her country of origin.

Article 12–Exclusion

More detailed provisions are added to Article 12 (5) on the basis of Court of Justice of the European Union 24 to clarify that the commitment of certain crimes (particular cruel actions and terrorist acts) are a basis for exclusion from being a refugee even if committed with a political objective.

Article 12 (6), also clarifies on the basis of the Court of Justice of the European Union 25 that the exclusion of a person from refugee status shall depend exclusively on whether the conditions under this Article are met and cannot be subject to any additional proportionality assessment.

8.

2. More convergence of the asylum decisions across the EU by obliging determining authorities of the Member States to take into account the European Union Agency for Asylum guidance


Article 7- Actors of protection

As a means of reaching more convergence in asylum decision making practices across the EU, when assessing whether an international organisation controls a State or a substantial part of its territory, Article 7 (3) establishes the obligation for the determining authorities to base themselves on Union guidance in particular the common analysis and guidance on the situation in the country of origin provided by the European Union Agency for Asylum and the European networks on country of origin information. The proposal on the European Union Agency for Asylum (Articles 8 and 10 of Regulation 26 provides for competence to issue such common analysis and guidance, which is then cross-referred in Article 7(3). (hereinafter referred as the Agency guidance).

9.

Article 8- Internal protection


In order to ensure convergence of asylum decisions related to internal protection, similarly to the technique used in Article 7(3), the determining authorities of Member States are obliged to take into account, among other information, the Agency guidance.

Article 11 and 17 –Cessation of refugee and subsidiary protection status

Article 11 (2) (b) as regards the cessation of the refugee status, and Article 17 (2) (b) as regards the subsidiary protection status provides for the obligation for determining authorities to base themselves on the Agency guidance when assessing whether refugees and beneficiaries of subsidiary protection respectively have ceased to be eligible to the international protection status granted to them.

10.

3. Introducing systematic and regular status reviews


Article 14 and Article 20 - Revocation of, ending of or refusal to renew refugee and subsidiary protection statuses respectively

Article 14 (1) and Article 20 (1) oblige the determining authorities to revoke, end or refuse to renew the status when protection needs have ceased or when exclusion grounds become applicable after the protection has been granted. A status review is therefore needed in order to check whether the eligibility criteria (fear of persecution, indiscriminate violence) are still met.

11.

Article 15 and Article 21 - Review of the refugee and subsidiary statuses respectively


The proposal introduces triggers for such reviews, a substantive one and another one ensuring regularity. Therefore it is proposed to oblige determining authorities to perform such reviews, when there is a significant relevant change in the country of origin which is reflected in an EU level documents; i.e.: in the Agency guidance (Article 15 (1) (a) and Article 21 (1) (b)) and when they renew the residence permits for the first time for refugees and for the first and second time for beneficiaries of subsidiary protection (Article 15 (1) (a) and Article 21 (1) (b)). Such reviews should not cause additional administrative burden for the national administrations, given that they are well targeted and prescribed to situations where a decision on the renewal of the residence permit has in any event to be taken -or in cases of a reported significant change in the situation in a specific country of origin. Therefore this proposal will achieve a higher level of harmonisation and control while avoiding the creation of unnecessary burden for the Member States.

A three months' grace period is proposed (in Articles 14 (5) and 20 (3)) in case the status is revoked due to change of circumstances so to give the person the opportunity to try to change his/her status if other grounds justify it (family, work, study, humanitarian ground etc.).

4. Addressing secondary movements, by clarifying the obligations of a beneficiary to stay in the Member State which has granted protection and providing for additional disincentives through the modification of the Long term resident Directive.

12.

Article 29 - Movement within the Union


Article 29 provides that, as a general rule, a beneficiary of international protection is obliged to reside in the Member States which granted protection and together with Article 44 provides disincentives if the beneficiary is found in another Member State without the right to stay or reside there. Article 29 (2) makes reference to the proposed provisions of the Dublin Regulation (Article 20(1)e), in this regard. In addition it is proposed to amend the Long Term Residents Directive 2003/109/EC and to provide that the 5-year period after which beneficiaries of international protection are eligible for the Long Term Resident status should restart each time the person is found in a Member State, other than the one that granted international protection, without a right to stay or to reside there in accordance with relevant Union or national law. It is expected that this proposed measure will be an incentive for beneficiaries of international protection to comply with the rules and to avoid unauthorised secondary movements, since otherwise they would risk prolonging the waiting period for the acquisition of the long-term resident status and the related right to intra-EU mobility.

Article 29 also confirms that the relevant Schengen provisions allow the beneficiary to stay - when the conditions of Article 21 of the Convention Implementing the Schengen Agreement are fulfilled - in another Member State applying the Schengen acquis in full for a period of 90-days in any 180 day period. In addition the Article also clarifies that the beneficiary can apply to reside in another Member State under other applicable EU rules (as it is proposed in the proposal on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment 27 or if national rules of the Member States allow it.

13.

Article 24 - Information


Article 24 provides for reinforced rules on information, in order to ensure that the beneficiary of international protection is aware of his/her rights and obligations and in particular as regards the provisions on movement within the Union. To this end, an implementing act is proposed to establish uniform rules on the content and form of the information to be provided across the EU.

14.

5. Further harmonising the rights of beneficiaries of international protection


Article 22 - General rules

Chapter VII provides for the content of protection and displays the rights and obligations on three sections, as general provisions, residence related and integration related rights. Changes provide for more harmonisation by providing uniform rules with special regard to residence permits and travel documents, as well as, clarify the scope of the rights to be given access to with special regard to social rights.

While the recognition of the refugee status is a declaratory act, it is explicitly clarified in Article 22(3) that certain rights (access to employment and social security) can be made conditional on the presence of the residence permit.

15.

Article 25 - Family unity


As regards family unity (Article 25), the scope of family members is extended to reflect the reality of current migratory trends, according to which applicants often arrive to the territory of the Member States after a prolonged period of time in transit. The corresponding recital on family unity clarifies that these provisions are lex specialis as regards to the rules of the Family Reunification Directive.

16.

Article 26 - Residence permits


As regards residence permits, Article 26 provides for a new explicit harmonisation of both the validity period and the format of the residence permit, but keeping the difference between beneficiaries of subsidiary protection and refugees. For subsidiary protection, the residence permit will be valid for 1 year renewable for 2 years (1+2+2 years formula) and for refugees the residence permit will be valid for 3 years renewable for 3 years (3+3+3 year formula).

17.

Article 27 - Travel document


The minimum security and biometric features of the travel documents are proposed to be harmonised as well under Article 27, by obliging the Member States to issue travel documents with a minimum one year validity, which makes such travel documents fall under the technical harmonisation rules of the regulation No 2252/2004.

18.

Article 28 - Freedom of movement within the Member State


As regards freedom of movement within a Member State, Article 28 (2) codifies case law of the Court of Justice of the European Union 28 by introducing the possibility for Member States to set residence conditions where those residence conditions are needed to facilitate integration.

19.

Article 30 - Access to employment


The Article on access to employment (Article 30) further clarifies employment related equal treatment rights, spelling out collective labour rights added and health and safety at the work place and facilitation obligation of the Member State are better articulated as well.

20.

Article 32 - Access to procedures for recognition of qualifications and validation of skills


As regards the provisions on recognition of qualification (Article 32 (1) and (2)), equal treatment and facilitation obligation are better articulated and as regards validation of skills, the equal treatment obligation is separately displayed to mark the difference between the two schemes.

21.

Article 33 - Social security


The scope of social security is clarified for the sake of legal clarity by a cross reference to the social security coordination regulation (Article 2 (17)).

22.

6. Strengthening integration incentives for the beneficiaries of international protection


Article 34 - Social assistance

Social assistance is now defined in Article 2(18) on the basis of case law 29 . The current possible limitation of the granting of social assistance to core benefits in respect of beneficiaries of subsidiary protection is kept. Core benefits are to be understood to cover at least minimum income support, assistance is case of illness, or pregnancy, and parental assistance if these benefits exist and granted to nationals.

In addition to these limitations, as a measure to provide for integration incentives, it is proposed in Article 34 to allow Member States to condition the granting of certain social assistance to the effective participation in integration measures for all beneficiaries of international protection.

23.

Article 38 - Access to integration facilities


Therefore, as a corresponding measure a possible obligation for the beneficiaries to participate in integration measures is established in Article 38. However, when obliging beneficiaries of international protection to effectively participate in integration measures in accordance with relevant case law of the Court of Justice of the European Union, Member States should take into account individual hardship 30 .