Considerations on COM(2016)467 - Common procedure for international protection in the Union - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)467 - Common procedure for international protection in the Union. |
|---|---|
| document | COM(2016)467  |
| date | May 14, 2024 |
| (2) | A common policy on asylum based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 (the ‘Geneva Convention’), is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to third-country nationals and stateless persons who seek protection in the Union. Such a policy should be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. |
| (3) | The Common European Asylum System (CEAS) is based on common standards for asylum procedures, recognition and protection offered at Union level and reception conditions and establishes a system for determining the Member State responsible for examining an application for international protection. Notwithstanding the progress that has been made in the development of the CEAS, there are still notable disparities between the Member States as regards the procedures used, the recognition rates, the type of protection granted, the level of material reception conditions and benefits given to applicants and beneficiaries of international protection. Those disparities are important drivers of secondary movements and undermine the objective of ensuring that in the CEAS all applicants are equally treated wherever they apply for international protection in the Union. |
| (4) | In its communication of 6 April 2016‘Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe’, the Commission set out priority areas where the CEAS should be structurally improved, namely the establishment of a sustainable and fair system for determining the Member State responsible for examining an application for international protection, the reinforcement of the Eurodac system, the achievement of greater convergence in the asylum system, the prevention of secondary movements within the Union and an enhanced mandate for the European Union Agency for Asylum established by Regulation (EU) 2021/2303 of the European Parliament and of the Council (5) (the ‘Asylum Agency’). That communication is in line with calls by the European Council on 18-19 February 2016 to make progress towards reforming the Union’s existing framework so as to ensure a humane, fair and efficient asylum policy. That communication also proposes a way forward in line with the holistic approach to migration set out by the European Parliament in its resolution of 12 April 2016 on the ‘The situation in the Mediterranean and the need for a holistic EU approach to migration’. |
| (5) | For a well-functioning CEAS, substantial progress should be made regarding the convergence of national asylum systems. The current disparate asylum procedures in all Member States should be replaced with a common procedure for granting and withdrawing international protection applicable across all Member States pursuant to Regulation (EU) 2024/1347 of the European Parliament and of the Council (6), ensuring the timeliness and effectiveness of the procedure. Applications for international protection made by third-country nationals and stateless persons should be examined in a procedure which is governed by the same rules, regardless of the Member State where the application is lodged to ensure equity in the treatment of applications for international protection, clarity and legal certainty for the individual applicant. |
| (6) | This harmonisation and convergence of national asylum systems should be achieved without preventing Member States from introducing or retaining more favourable provisions where provided for by this Regulation. |
| (7) | A common procedure for granting and withdrawing international protection should limit the secondary movements of applicants for international protection between Member States, where such movements would be caused by differences in legal frameworks, by streamlining procedures and by clarifying the rights and obligations of applicants as well as the consequences of non-compliance with those obligations, and create equivalent conditions for the application of Regulation (EU) 2024/1347 in Member States. |
| (8) | This Regulation should apply to all applications for international protection made in the territory of the Member States, including those made at the external border, on the territorial sea or in the transit zones of Member States, and to the withdrawal of international protection. Persons seeking international protection who are present on the territorial sea of a Member State should be disembarked on land and have their applications examined in accordance with this Regulation. |
| (9) | This Regulation should apply to applications for international protection in a procedure where it is examined whether the applicants qualify as beneficiaries of international protection in accordance with Regulation (EU) 2024/1347. In addition to the international protection, the Member States may also grant other national humanitarian statuses under their national law to those who do not qualify for the refugee status or subsidiary protection status. In order to streamline the procedures in Member States, the Member States should have the possibility to apply this Regulation also to applications for any kind of such other protection. |
| (10) | With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party. |
| (11) | It should be possible to mobilise the resources of the Asylum, Migration and Integration Fund, as established by the Regulation (EU) 2021/1147 of the European Parliament and of the Council (7), and other relevant Union funds (the ‘Funds’) to provide support for Member States’ efforts in applying this Regulation, in line with the rules governing the use of the relevant Funds and without prejudice to other priorities supported by the Funds. In this context, Member States should be able to make use of the allocations under their respective programmes, including the amounts made available following the mid-term review. In particular, actions undertaken by Member States for putting in place adequate capacity for carrying out the border procedure can be supported financially by the Funds made available under the 2021-2027 multiannual financial framework. It should be possible to make additional support under the thematic facilities available, in particular to those Member States which might need to increase their capacities at the external borders or are faced with specific pressures on or needs concerning their asylum and reception systems and their external borders. |
| (12) | The Asylum Agency should provide Member States with the necessary operational and technical assistance in the application of this Regulation, in particular by providing experts to assist national authorities to receive and register applications for international protection and to assist the determining authority in the performance of its tasks including as regards the examination of applications for international protection and by providing updated information and analysis on third countries, including country of origin information and guidance on the situation in specific countries of origin. When applying this Regulation, Member States should take into account operational standards, indicators, guidelines and best practices developed by the Asylum Agency. |
| (13) | In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the Geneva Convention or as persons eligible for subsidiary protection, every applicant should have an effective access to the procedure, the opportunity to cooperate fully and properly communicate with the competent authorities so as, in particular, to present the relevant facts of his or her case and sufficient procedural guarantees to pursue his or her case throughout all stages of the procedure. |
| (14) | The applicant should be provided with an effective opportunity to present all elements available to him or her which substantiate the application or are relevant for the procedures in accordance with this Regulation to the competent authorities. For this reason, the applicant should, subject to limited exceptions, enjoy the right to be heard through a personal interview on the admissibility or on the merits of his or her application, as appropriate. If the applicant is unfit to attend his or her personal interview, the authorities could ask for a medical certification to be provided by the applicant. For the right to a personal interview to be effective, the applicant should be assisted by an interpreter where necessary to ensure appropriate communication and be given the opportunity to provide his or her explanations concerning his or her application in a comprehensive manner. The applicant should be given sufficient time to prepare and consult with his or her legal adviser or other counsellor admitted or permitted as such under national law to provide legal advice(the ‘legal adviser’) or a person entrusted with providing legal counselling. During the interview, the applicant should be allowed to be assisted by the legal adviser. The personal interview should be conducted under conditions which ensure appropriate privacy and confidentiality and by adequately trained and competent staff, including where necessary, experts deployed by the Asylum Agency or staff from authorities of other Member States. Where the interview on the merits is omitted with a view to ensuring swift access to international protection, this should be without prejudice to the obligation to examine whether the applicant fulfils the conditions set out in Regulation (EU) 2024/1347 to be granted refugee status before examining whether the applicant fulfils the conditions to be granted subsidiary protection. Given that the personal interview is an essential part of the examination of the application, the interview should be recorded and the applicants, their representatives and their legal advisers should be given access to the report or transcripts of that interview as soon as possible after it takes place and in any case in due time before the determining authority takes a decision. |
| (15) | The personal interview is an essential part of an effective and fair asylum procedure. In order to ensure an optimal environment for communication, in-person interviews should be given preference, with the conduct of remote interviews by video conference remaining the exception. Apart from public health considerations, there may be legitimate grounds for the determining authority to have recourse to remote interviews by video conference, for example where vulnerabilities preclude the possibility of travel of an asylum applicant or make it difficult due to health or family reasons, to conduct interviews with applicants in detention, in overseas territories or in situations where the remote participation of an interpreter with specialised interpretation skills is required. In the event of remote interviewing, the determining authority should be required to apply all procedural safeguards as when in-person interviews are held, ensuring privacy and confidentiality, and giving due consideration to data protection. The suitability of the use of the remote interviewing by video conference should be assessed individually before the interview, as remote interviews may not be suitable for all asylum applicants due to their young age, the existence of visual or hearing impairments, or the state of their mental health, with particular regard to certain vulnerable groups, such as victims of torture or traumatised applicants. The best interests of the child should be a primary consideration. Special concern should be given to potential technological difficulties which may have disruptive effects on the interview, result in an incomplete or unintelligible record of the interview or affect the storage and retrieval of the recording. |
| (16) | It is in the interests of both Member States and applicants that applicants receive at a very early stage comprehensive information on the procedure to be followed and on their rights and obligations. In addition, it is essential to ensure a correct recognition of international protection needs already at the stage of the administrative procedure by providing good quality information and legal support which leads to more efficient and better quality decision-making. For that purpose, access to legal counselling, assistance and representation should be an integral part of the common procedure for international protection. Applicants should, as soon as possible after an application for international protection has been registered, upon their request, be provided with free legal counselling during the administrative procedure. Furthermore, to ensure the effective protection of the applicant’s rights, particularly the right of defence and the principle of fairness, applicants should, upon their request and subject to conditions set out in this Regulation be provided with free legal assistance and representation in the appeal procedure. It should also be possible for Member States to provide for free legal assistance and representation during the administrative procedure in accordance with national law. |
| (17) | Certain applicants may be in need of special procedural guarantees due, inter alia, to their age, gender, sexual orientation, gender identity, disability, serious physical or mental illness or disorders, including when these are a consequence of torture, rape or other serious forms of psychological, physical, sexual or gender-based violence. It is necessary to assess whether any individual applicant is in need of special procedural guarantees. |
| (18) | The relevant staff of the competent authorities of Member States as well as the medical practitioner or psychologist assessing the need for special procedural guarantees should be adequately trained to detect signs of vulnerability of applicants who may need special procedural guarantees and address those needs when identified. |
| (19) | This Regulation is without prejudice to the possibility for the Commission, in accordance with Article 13 of Regulation (EU) 2021/2303, to request the Asylum Agency to develop operational standards, indicators, guidelines and best practices related to the implementation of Union law on asylum. |
| (20) | Applicants who are identified as being in need of special procedural guarantees should be provided with adequate support in order to create the conditions necessary for the genuine and effective access to procedures. Where it is not possible to provide adequate support in the framework of an accelerated examination procedure or of a border procedure, an applicant in need of special procedural guarantees should be exempted from those procedures. |
| (21) | With a view to ensuring substantive equality between female and male applicants, examination procedures should be gender-sensitive. In particular, personal interviews should be organised in a way which makes it possible for both female and male applicants to speak freely about their past experiences, including in cases involving persecution based on gender, gender identity or sexual orientation. For this purpose, applicants should be given an effective opportunity to be interviewed separately from their spouse, partner or other family members. Where requested by the applicant and possible, the interviewers and interpreters should be of the sex that the applicant prefers. The complexity of gender-related claims should be properly taken into account in all procedures. |
| (22) | Where it is necessary and duly justified for the examination of an application for international protection, the competent authorities should be able to require that the applicant be searched or that his or her items be searched. Those items may include electronic devices such as laptops, tablet computers or mobile phones. Any such search should be carried out in a way that respects fundamental rights and the principle of proportionality. |
| (23) | The best interests of the child should be a primary consideration of Member States when applying this Regulation, in accordance with Article 24 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and the 1989 United Nations Convention on the Rights of the Child. In assessing the best interests of the child, Member States should in particular take due account of the minor’s well-being and social development, including his or her background. In view of Article 12 of the United Nations Convention on the Rights of the Child concerning the child’s right to be heard, the determining authority should provide a minor with the possibility of a personal interview, unless this is not in the best interests of the child. The determining authority should organise a personal interview for a minor taking into account in particular his or her age and maturity. |
| (24) | Without prejudice to the competence of Member States on the acquisition of nationality and the fact that, under international law, it is for each Member State, having due regard to Union law, to lay down the conditions for the acquisition and loss of nationality, in applying this Regulation, Member States should respect their international obligations towards stateless persons, in accordance with international human rights law instruments, including where applicable under the Convention relating to the Status of Stateless Persons, adopted in New York on 28 September 1954. Where appropriate, Member States should endeavour to identify stateless persons and strengthen their protection, thus allowing stateless persons to enjoy core fundamental rights and reducing the risk of discrimination or unequal treatment. |
| (25) | Where, following a thorough assessment by the competent national authorities, it is concluded that the applicant constitutes a danger to national security or public order, especially in relation to serious crimes or terrorism, a Member State should have the possibility to make an exception to the right of the applicant to remain on its territory during the administrative procedure, provided that applying such an exception does not result in the applicant being removed to a third country in violation of the principle of non-refoulement. |
| (26) | The common procedure streamlines the time limits for an individual to accede to the procedure and for the examination of the application by the determining authority. Since a disproportionate number of applications made within the same period of time may risk delaying access to the procedure and the examination of the applications, a measure of flexibility to exceptionally extend those time limits may at times be needed. However, to ensure an effective process, extending those time limits should be a measure of last resort considering that Member States should regularly review their needs to maintain an efficient asylum system, including by preparing contingency plans where necessary, and considering that the Asylum Agency should provide Member States with the necessary operational and technical assistance. Where Member States foresee that they would not be able to meet the set time limits, they should request assistance from the Asylum Agency. Where no such request is made, and because of the disproportionate pressure the asylum system in a Member State becomes ineffective for the functioning of the CEAS, the Asylum Agency should be able, on the basis of a Council implementing act following a proposal by the Commission, to take measures in support of that Member State. |
| (27) | Access to the common procedure should be based on a three-step approach consisting of the making, registering and lodging of an application. Making an application is the first step that triggers the application of this Regulation. A third-country national or stateless person is considered to have made an application when expressing a wish to receive international protection from a Member State. Where the application is received by an authority which is not responsible for registering applications, Member States should, in accordance with their internal procedures and organisation, apply this Regulation so that the effective access to the procedure can be ensured. It should be possible to express the wish to receive international protection from a Member State in any form, and the individual applicant need not necessarily use specific words such as ‘international protection’, ‘asylum’ or ‘subsidiary protection’. The defining element should be the expression by the third-country national or the stateless person of a fear of persecution or serious harm upon return to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence. Where there is doubt as to whether a certain declaration may be construed as an application for international protection, the third-country national or stateless person should be expressly asked whether he or she wishes to receive international protection. The applicant should benefit from the rights under this Regulation and Directive (EU) 2024/1346 of the European Parliament and of the Council (8) as soon as he or she makes an application. |
| (28) | An application should be registered promptly after it is made. At that stage, the competent authorities responsible for registering applications or experts deployed by the Asylum Agency assisting them with that task should register the application together with the personal details of the applicant. Those authorities or experts should inform the applicant of his or her rights and obligations, as well as the consequences for the applicant in the event of non-compliance with those obligations. Organisations working with the competent authorities and assisting them should also be able to provide this information. The applicant should be given a document indicating that an application has been made and registered. The time limit for lodging an application starts to run from the moment an application is registered. |
| (29) | The lodging of the application is the act that formalises the application for international protection. The applicant should be given the necessary information as to how and where to lodge his or her application and he or she should be given an effective opportunity to do so. At this stage he or she is required to submit as soon as possible all the elements and documents at his or her disposal needed to substantiate and complete the application, unless otherwise provided for in this Regulation. The time limit for the administrative procedure starts to run from the moment an application is lodged. Shortly after the application is lodged, the applicant should be given a document which includes his or her status as an applicant. |
| (30) | It is particularly important to ensure that minors are provided with information in a child-friendly manner. |
| (31) | The applicant should be informed properly of his or her rights and obligations in a timely manner and in a language that he or she understands or is reasonably supposed to understand, in writing and if necessary orally. Having regard to the fact that where, for instance, the applicant refuses to cooperate with the national authorities by, in particular, not providing the elements necessary for the examination of the application or by not providing his or her fingerprints or facial image, the application is rejected or declared as implicitly withdrawn, it is necessary that the applicant has been informed of the consequences for not complying with those obligations. |
| (32) | To be able to fulfil their obligations, the staff of the authorities applying this Regulation should have the appropriate knowledge and should receive training in the field of international protection, including with the support of the Asylum Agency. They should also be given the appropriate means, including sufficient competent staff, and guidance to effectively perform their tasks. For that purpose, each Member State should regularly assess the needs of the determining authority and the other competent authorities to ensure that they are always in a position to deal with applications for international protection in an effective manner, particularly where there is a disproportionate number of applications within the same period of time. |
| (33) | For the purposes of effective access to the examination procedure at border crossing points and in detention facilities, information should be made available on the possibility to make an application for international protection. Basic communication necessary to enable the competent authorities to understand if persons declare their wish to make an application for international protection should be ensured through interpretation arrangements. |
| (34) | This Regulation should provide for the possibility that applicants lodge an application on behalf of adults requiring assistance to exercise legal capacity, and of minors where under national law they do not have the legal capacity to lodge an application in their own name. The joint examination of those applications should be allowed. |
| (35) | To ensure that unaccompanied minors have effective access to the procedure and are able to benefit from the rights and comply with the obligations under this Regulation, Regulation (EU) 2024/1351 (9), Directive (EU) 2024/1346 and Regulation (EU) 2024/1358 (10) of the European Parliament and of the Council, they should be appointed a representative, including where the applicant is found to be an unaccompanied minor at any moment during the asylum procedure. The representative should assist and guide the minor through the procedure with a view to safeguarding the best interests of the child and should, in particular, assist with the lodging of the application and the personal interview. Where necessary, the representative should lodge the application on behalf of the minor. A person should be designated to assist unaccompanied minors until a representative is appointed, including, where applicable, in relation to the age-assessment procedure and the procedures provided for under Regulation (EU) 2024/1351 and Regulation (EU) 2024/1358. In order to provide effective support to the unaccompanied minors, representatives or a person suitable to provisionally act as a representative should be placed in charge of a proportionate and limited number of unaccompanied minors, and under normal circumstances of no more than 30 unaccompanied minors, at the same time. Member States should appoint administrative or judicial authorities or other entities responsible for the supervision on a regular basis of such representatives in the performance of their tasks. An unaccompanied minor should have the right to lodge an application in his or her own name if he or she has legal capacity in accordance with national law. In order to safeguard the rights and procedural guarantees of an unaccompanied minor who does not have legal capacity in accordance with national law, the application should be lodged by the representative as soon as possible taking into account the best interests of the child. The fact that an unaccompanied minor lodges an application in his or her own name should not preclude him or her from being assigned a representative. |
| (36) | In order to ensure that the processing of applications for international protection are carried out with due regard to the rights of the child, specific child-sensitive procedural safeguards and special reception conditions are to be provided to minors. Where, following statements by an applicant, there are grounds for doubting as to whether or not an applicant is a minor, it should be possible for the determining authority to carry out an age assessment of the person concerned. Doubts regarding the age of an applicant may arise when the applicant claims to be a minor but also when they claim to be an adult. Given the particular vulnerability of unaccompanied minors, who are likely to lack identification or other documents, it is particularly critical to ensure strong safeguards to ensure that such applicants are not subject to incorrect or unreasonable age-assessment procedures. |
| (37) | In all cases, age assessments should be carried out in a manner that gives primary consideration to the best interests of the child throughout the procedure. An age assessment should be carried out in two steps. A first step should comprise a multi-disciplinary assessment, which could include a psycho-social assessment and other non-medical methods, such as an interview, visual assessment based on physical appearance or assessment of documentation. Such an assessment should be carried out by professionals with expertise in age estimation and child development, such as social workers, psychologists or paediatricians, in order to assess various factors, such as physical, psychological, developmental, environmental and cultural factors. If the result of the multidisciplinary age assessment is inconclusive, it should be possible, as a second step, for the determining authority to request a medical examination, as a measure of last resort, and with full respect for the individual’s dignity. Where different procedures may be followed, a medical examination should prioritise the least invasive procedures before proceeding to more invasive ones taking into account guidance from the Asylum Agency where relevant. If, following the age assessment, the results remain inconclusive, the determining authority should assume that the applicant is a minor. |
| (38) | In order to guarantee the rights of the applicants, decisions on all applications for international protection should be taken on the basis of the facts, objectively, impartially and on an individual basis after a thorough examination which takes into account all the elements provided by the applicant and the individual circumstances of the applicant. To ensure a rigorous examination of an application, the determining authority should take into account relevant, precise and up-to-date information relating to the situation prevailing in the country of origin of the applicant at the time of taking a decision on the application. That information may be obtained from the Asylum Agency and other sources such as the United Nations High Commissioner for Refugees. The determining authority should, where available, also take into account the common analysis on the situation in specific countries of origin and the guidance notes developed by the Asylum Agency. Any postponement of concluding the procedure should fully comply with the obligations of the Member States under Regulation (EU) 2024/1347 and with the right to good administration, without prejudice to the efficiency and fairness of the procedure under this Regulation. |
| (39) | In order to guarantee the rights of the applicant, a decision concerning his or her application should be given in writing. Where the decision does not grant international protection, the applicant should be given reasons in fact and in law, information on the consequences of the decision and the modalities for challenging it. |
| (40) | In order to increase the efficiency of procedures and to reduce the risk of absconding and the likelihood of unauthorised movements, there should be no procedural gaps between the issuance of a negative decision on an application for international protection and of a return decision. A return decision should immediately be issued to applicants whose applications are rejected. Without prejudice to the right to an effective remedy, the return decision should either be part of the negative decision on an application for international protection or, if it is a separate act, be issued at the same time and together with the negative decision or without undue delay thereafter. |
| (41) | In the case of an extradition, surrender or transfer from an international criminal court or tribunal to a third country or another Member State, the relevant competent authority could take into account elements considered upon deciding on the extradition, surrender or transfer which may be relevant for an assessment of the risk of direct or indirect refoulement. |
| (42) | It is necessary that decisions on applications for international protection be taken by authorities whose staff have appropriate knowledge and have received adequate training, including the relevant training of the Asylum Agency, in the relevant standards applicable in the field of asylum and refugee law, and that they perform their activities with due respect for the applicable ethical principles. That should apply to the staff of authorities from other Member States and experts deployed by the Asylum Agency to assist the determining authority of a Member State in the examination of applications for international protection. |
| (43) | Without prejudice to carrying out an adequate and complete examination of an application for international protection, it is in the interests of both Member States and applicants for a decision to be taken as soon as possible. Maximum time limits for the duration of the administrative procedure should be established to streamline the procedure for international protection. In this way, applicants should be able to receive a decision on their application within the least amount of time possible in all Member States thereby ensuring a speedy and efficient procedure. |
| (44) | In order to shorten the overall duration of the procedure in certain cases, Member States should have the flexibility, in accordance with their national needs, to prioritise the examination of any application by examining it before other, previously made applications. The prioritisation of examination of applications should be done without derogating from normally applicable procedures, in particular the admissibility procedure or the accelerated examination procedure, time limits, principles and guarantees. The requirement, under this Regulation, to examine certain applications in accordance with the accelerated or the border procedure should therefore be without prejudice to the flexibility of Member States to decide whether or not to prioritise such applications. In certain circumstances, in particular when families with minors are subject to the border procedure, Member States should prioritise the examination of their application. |
| (45) | Member States should have the possibility to reject an application as inadmissible for instance when a country which is not a Member State is considered to be a first country of asylum or a safe third country for the applicant or when an international court or tribunal has provided safe relocation to the applicant to a Member State or third country or when it is made only after seven working days from the date on which the applicant receives the return decision provided that he or she had been informed about the consequences of not making an application within that time limit and that no new relevant elements have arisen. Given that the CEAS is based on mutual trust and a presumption of compliance with fundamental rights, including the rights based on the Geneva Convention and on the European Convention of Human Rights, the fact that another Member State has already granted international protection is, as a rule, a reason for rejecting an application by the same applicant as inadmissible. Therefore, Member States should have the possibility to reject an application as inadmissible where an applicant has already been granted international protection in another Member State. In addition, an application should be considered to be inadmissible when it is a subsequent application without new relevant elements. |
| (46) | For the application of the concepts of first country of asylum and safe third country, it is essential that the third country in relation to which the concepts are applied is a party to and complies with the Geneva Convention, unless that third country otherwise provides for effective protection in law and in practice in accordance with basic human rights standards such as access to means of subsistence sufficient to maintain an adequate standard of living with regard to the overall situation of that hosting third country, access to healthcare and essential treatment of illnesses and to education under the conditions generally provided for in that third country. Such effective protection should remain available until a durable solution can be found. It should be possible to designate a third country as safe third country with exceptions for specific parts of its territory or clearly identifiable categories of persons. |
| (47) | Member States should have the possibility to apply the concept of first country of asylum as a ground for inadmissibility where the applicant enjoyed effective protection and can still avail himself or herself of that protection in a third country, where his or her life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion, where he or she is neither subject to persecution nor faces a real risk of serious harm as defined in Regulation (EU) 2024/1347 and where the applicant is protected against refoulement and against removal in violation of the right to protection from torture and cruel, inhuman or degrading treatment or punishment as laid down in international law. |
| (48) | Member States should have the possibility to apply the concept of safe third country as a ground for inadmissibility where the possibility exists for the applicant to request and, if the conditions are fulfilled, to receive effective protection in a third country, where his or her life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion, where he or she is neither subject to persecution nor faces a real risk of serious harm as defined in Regulation (EU) 2024/1347 and where he or she is protected against refoulement and against removal in violation of the right to protection from torture and cruel, inhuman or degrading treatment or punishment as laid down in international law. Nonetheless, the determining authorities of the Member States should retain the right to assess the merits of an application even if the conditions for regarding it as inadmissible are met, in particular when they are compelled to do so pursuant to their national obligations. A Member State should be able to apply the concept of safe third country only where there is a connection between the applicant and the third country on the basis of which it would be reasonable for the applicant to go to that country. The connection between the applicant and the safe third country could be considered established in particular where members of the applicant’s family are present in that country or where the applicant has settled or stayed in that country. |
| (49) | The presumption of safety regarding third countries with which agreements of the kind referred to in this Regulation have been concluded does not apply in the event that such agreements are suspended in accordance with Article 218(9) of the Treaty on the Functioning of the European Union (TFEU). |
| (50) | The concepts of first country of asylum and safe third country should not be applied in respect of an applicant who applies and is entitled to benefit, in the Member State that examines the application, from the rights set out in Council Directive 2003/86/EC (11) or Directive 2004/38/EC of the European Parliament and of the Council (12) as family member of a third-country national or of a Union citizen. |
| (51) | When assessing whether the criteria for effective protection as set out in this Regulation are met by a third country, access to means of subsistence sufficient to maintain an adequate standard of living should be understood as including access to food, clothing, housing or shelter and the right to engage in gainful employment, for example through access to the labour market, under conditions not less favourable than those for non-nationals of the third country generally in the same circumstances. |
| (52) | In order for Member States to be able to reject an application as inadmissible on the basis of the concepts of first country of asylum or safe third country, an individual assessment of the particular circumstances of the applicant should be carried out, including of any elements submitted by the applicant explaining why those concepts would not be applicable to him or her. Where the applicant is an unaccompanied minor, the competent authority should take into account the best interests of the child, in particular concerning the availability of sustainable appropriate care and custodial arrangements. |
| (53) | An application should not be rejected as inadmissible on the basis of the concepts of first country of asylum or safe third country where it is already clear at the stage of the admissibility examination that the third country concerned will not admit or readmit the applicant. Furthermore, if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation. |
| (54) | An application for international protection should be examined on its merits to determine whether an applicant qualifies for international protection in accordance with Regulation (EU) 2024/1347. There need not be an examination on the merits where an application is rejected as inadmissible in accordance with this Regulation, where another Member State is responsible in accordance with Regulation (EU) 2024/1351 or where an application is declared as implicitly or explicitly withdrawn. |
| (55) | The examination of an application should be accelerated and completed within a maximum of three months in a limited number of cases including where an applicant comes from a safe country of origin or an applicant is making an application merely to delay or frustrate the enforcement of a removal decision, or where there are serious national security or public order concerns. Member States should be able to apply an accelerated examination procedure to unaccompanied minors only within the limited circumstances set out in this Regulation. |
| (56) | In the interest of swift and fair procedures for all applicants, whilst also ensuring that the stay of applicants who do not qualify for international protection in the Union is not unduly prolonged, including those who are nationals of third countries exempt from the requirement to be in a possession of a visa pursuant to Regulation (EU) 2018/1806, Member States should accelerate the examination of applications of applicants who are nationals or, in the case of stateless persons, formerly habitual residents of a third country for which the share of decisions granting international protection is 20 % or lower of the total number of decisions for that third country, taking into account, inter alia, the significant differences between first instance and final decisions. Where a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data and taking into account the guidance note pursuant to Article 11 of Regulation (EU) 2021/2303, or where the applicant belongs to a specific category of persons for whom the low recognition rate cannot be considered to be representative of their protection needs due to a specific persecution ground, examination of the application should not be accelerated. Cases where a third country may be considered to be a safe country of origin or a safe third country for the applicant within the meaning of this Regulation should remain applicable as a separate ground for respectively the accelerated examination procedure or the admissibility procedure. |
| (57) | Many applications for international protection are made at the external border or in a transit zone of a Member State, including by persons apprehended in connection with an irregular crossing of the external border, that is to say at the very time of the irregular crossing of the external border or near that external border after it has been crossed, or by persons disembarked following a search and rescue operation. In order to conduct identification, security and health screening at the external border and to direct the third-country nationals and stateless persons concerned to the relevant procedures, a screening is necessary. After the screening, third-country nationals and stateless persons should be channelled to the appropriate asylum or return procedure, or refused entry. A pre-entry phase consisting of screening and border procedures for asylum and return should therefore be established. There should be seamless and efficient links between all stages of the relevant procedures for all irregular arrivals. |
| (58) | The purpose of the border procedure for asylum and return should be to quickly assess in principle at the external borders whether applications are unfounded or inadmissible and to swiftly return those with no right to stay, in a manner that fully respects the principle of non-refoulement, while ensuring that those with well-founded claims are channelled into the regular procedure and provided quick access to international protection. Member States should therefore be able to require applicants for international protection to reside at or in proximity of the external border or in a transit zone as a general rule, or in other designated locations within their territory, in order to assess the admissibility of applications. In well-defined circumstances, Member States should be able to provide for the examination of the merits of an application and, in the event of rejection of the application, for the return of the third-country nationals and stateless persons concerned. In order to carry out the asylum border procedure, and the return border procedure established by Regulation of the European Parliament and of the Council (EU) 2024/1349 (13), Member States should take the measures necessary to establish an adequate capacity, in terms of reception and human resources, particularly qualified and well-trained staff, required to examine at any given moment an identified number of applications and to enforce return decisions. |
| (59) | In order to ensure uniform conditions for the implementation of this Regulation as regards to the calculation of the numbers corresponding to the adequate capacity of each Member State and the maximum number of applications a Member State is required to examine in the border procedure per year, implementing powers should be conferred on the Commission. The adequate capacity of a Member State should be established through a formula based on aggregating irregular border crossings, as reported by Member States to the European Border and Coast Guard Agency established by Regulation (EU) 2019/1896 of the European Parliament and of the Council (14) (‘Frontex’), which also includes arrivals following search and rescue operations, and refusals of entry at the external border, as per Eurostat data, calculated over a three-year period. When the implementing act is adopted in accordance with this Regulation, its adoption should be aligned with the adoption of the European Annual Asylum and Migration Report under Regulation (EU) 2024/1351, which assesses the situation along all migratory routes and in all Member States. As an additional element of stability and predictability, the maximum number of applications a Member State should be required to examine in the border procedure per year should be set, amounting to four times that Member State’s adequate capacity. The extent of the obligation of the Member State to set up the adequate capacity should take appropriate account of Member States’ concerns regarding national security and public order. Only applications subject to the border procedure should be calculated towards reaching the adequate capacity. |
| (60) | Member States should assess applications in a border procedure where the applicant is a danger to national security or public order, where the applicant, after having been provided with the full opportunity to show good cause, is considered to have intentionally misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity or nationality that could have had a negative impact on the decision and where it is likely that the application is unfounded because the applicant is of a nationality for whom the proportion of decisions granting international protection is 20 % or lower of the total number of decisions for that third country. In order to ensure uniform conditions for the implementation of Article 50, third paragraph, of this Regulation, implementing powers should be conferred on the Commission. In other cases, such as when the applicant is from a safe country of origin or a safe third country, the use of the border procedure should be optional for the Member States. |
| (61) | Pursuant to Chapter IV of Directive (EU) 2024/1346, Member States providing reception facilities for carrying out the asylum border procedure are under an obligation to take into account the special situation and needs of vulnerable persons, including minors, persons with a disability and elderly people. Consequently, such persons should only be admitted to a border procedure in the event that the conditions of reception within that procedure comply with the requirements set out in Chapter IV of that Directive. Furthermore, in the event that reception conditions available as part of a border procedure cease to comply with the requirements and standards laid down in Chapter IV of that Directive, the border procedure should cease to apply to the persons concerned. |
| (62) | There may also be circumstances where, irrespective of the facilities available, the specific situation or special needs of applicants would in any event preclude them from being admitted or from remaining in a border procedure. In this context, a border procedure should not be applied, or should cease to apply, where necessary support cannot be provided to applicants in need of special procedural guarantees or where justified on health grounds, including reasons pertaining to a person’s mental health. Equally, having regard to the importance of the rights of the child and the need to take into account the best interests of the child, unaccompanied minors should not, as a rule, be subject to the border procedure unless there are reasonable grounds to consider the minor represents a danger to the national security or public order of the Member State or the applicant had been forcibly expelled for serious reasons of national security or public order under national law. |
| (63) | A border procedure should also not be applied, or should cease to apply, where it results in the detention of applicants in circumstances where the conditions for detaining persons and the guarantees applicable to detention as laid down in Directive (EU) 2024/1346 are not met. |
| (64) | Given that the purpose of the border procedure is, inter alia, to allow for the expeditious assessment of applications that are likely to be inadmissible or unfounded, with a view to enabling the swift return of those with no right to stay, that procedure should not be applied or should cease to apply where the determining authority considers that the grounds for rejecting an application as inadmissible or for applying the accelerated examination procedure are not applicable or no longer applicable. |
| (65) | When applying the border procedure for the examination of an application for international protection, Member States should ensure that the necessary arrangements are made to accommodate the applicants at or in proximity of the external border or transit zones as a general rule, in accordance with Directive (EU) 2024/1346. Member States may examine the applications at a different location at the external border than that where the asylum application is made by transferring applicants to a specific location at or in proximity of the external border of the Member State concerned, or in other designated locations within its territory where appropriate facilities exist. Member States should retain discretion in deciding at which specific locations such facilities should be set up. However, Member States should seek to limit the need for transferring applicants for this purpose, and therefore aim at setting up such facilities with sufficient capacity at border crossing points, or sections of the external border, where the majority of the number of applications for international protection are made, also taking into account the length of the external border and the number of border crossing points or transit zones. They should notify the Commission of the specific locations at which the border procedures will be carried out. |
| (66) | Given that certain facilities might be at locations with difficult accessibility, Member States should ensure adequate access for staff working in such facilities. |
| (67) | The best interests of the child should be a primary consideration for Member States when applying the provisions of this Regulation that possibly affect minors. In this context, and given the special reception needs of minors, where the border procedure is applied and the number of applicants at a given moment exceeds the number which corresponds to the adequate capacity of a Member State, that Member State should not give priority to minors and their family members when determining whom to subject to a border procedure, unless they are considered, on serious grounds, to pose a danger to the national security and public order of a Member State. Where they are subject to the border procedure, the examination of applications of minors and their family members should be given priority. Reception facilities for minors and their family members should be suited to their needs, in full respect of Directive (EU) 2024/1346. Given that protecting children is of primary importance, where the information obtained through the monitoring done pursuant to Regulation (EU) 2021/2303 indicates failure by a Member State to comply with the reception requirements for minors and their family members, the Commission should recommend that the application of the border procedure to families with minors be suspended, and the Member State concerned should inform the Commission of the measures taken to address any shortcomings contained in the recommendation of the Commission. The recommendation should be made public. |
| (68) | The duration of the border procedure for the examination of applications for international protection should be as short as possible while at the same time guaranteeing a complete and fair examination of the claims. It should in any event not exceed 12 weeks, including the determination of the Member State responsible. Member States should be able to extend this deadline to 16 weeks where the person is transferred pursuant to Regulation (EU) 2024/1351. This deadline should be understood as a stand-alone deadline for the asylum border procedure, from the registration of the application until the applicant does not have the right to remain and is not allowed to remain. Within this period, Member States are entitled to set the deadline in national law both for the administrative and for the various subsequent procedural steps, but should set them in a way so as to ensure that the examination procedure is concluded and that subsequently, if relevant, the decision on the request to remain and, if applicable, the decision on appeal are issued within 12 weeks or, if applicable, 16 weeks. After that period, if the Member State nevertheless failed to take the relevant decisions, the applicant should be authorised to enter the territory of the Member State, subject to limited exceptions, in order for the appropriate procedure to continue. Entry into the territory is not authorised where the applicant has no right to remain, where he or she has not requested to be allowed to remain for the purposes of an appeal procedure, or where a court or tribunal has decided that he or she should not be allowed to remain pending the outcome of an appeal procedure. In such cases, to ensure continuity between the asylum procedure and the return procedure, the return procedure is also carried out in the context of a border return procedure provided for in Regulation (EU) 2024/1349 for a period not exceeding 12 weeks. |
| (69) | While the border procedure for the examination of an application for international protection can be applied without recourse to detention, Member States should nevertheless be able to apply the grounds for detention during the border procedure in accordance with the provisions of the Directive (EU) 2024/1346 in order to decide on the right of the applicant to enter the territory. If detention is used during such procedure, the provisions on detention of that Directive should apply, including the guarantees for detained applicants, conditions of detention, judicial control, and the fact that an individual assessment of each case is necessary. As a rule, minors should not be detained. Only in exceptional circumstances, as a measure of last resort and after it has been established that other less coercive alternative measures cannot be applied effectively, inter alia non-custodial community-based placements, and after detention is assessed to be in their best interests in accordance with the Directive (EU) 2024/1346, should it be possible to detain minors. |
| (70) | When an application is rejected in the context of the border procedure, the applicant, third-country national or stateless person concerned should be immediately subject to a return decision or, where the relevant conditions set out in Regulation (EU) 2016/399 of the European Parliament and of the Council (15) are met, to a refusal of entry. To guarantee the equal treatment of all third-country nationals and stateless persons whose application has been rejected in the context of the border procedure, where a Member State has decided not to apply the provisions of Directive 2008/115/EC of the European Parliament and of the Council (16) pursuant to the relevant derogation set out therein to third-country nationals and stateless persons and does not issue a return decision to the third-country national concerned, the treatment and level of protection of the applicant, third-country national or stateless person concerned should be in accordance with the provision of Directive 2008/115/EC on more favourable provisions with regard to third-country nationals excluded from the scope of that Directive and be equivalent to those applicable to persons subject to a return decision. |
| (71) | The border procedure should be carried out in full compliance with the Charter and Union law. Each Member State should in that context provide for a monitoring of fundamental rights mechanism in relation to the border procedure that meets the criteria set out in Regulation (EU) 2024/1356 of the European Parliament and of the Council (17). |
| (72) | Within their respective mandates, Union agencies, and in particular the Asylum Agency, should be able to provide support to the Member States and the Commission, at their request, with a view to ensuring the proper implementation and functioning of this Regulation, including the provisions of this Regulation related to the accelerated and border procedures. Union agencies, and in particular the Asylum Agency, can propose specific support to a Member State. |
| (73) | It should be possible for a Member State to which an applicant is transferred in accordance with Regulation (EU) 2024/1351 to examine the application in a border procedure provided that the applicant has not yet been authorised to enter the territory of the Member States concerned and the conditions for the application of such a procedure are met in the Member State from which the applicant was transferred and by the Member State to which the applicant was transferred. |
| (74) | The notion of public order can, inter alia, cover a conviction for having committed a serious crime. |
| (75) | As long as an applicant can show good cause, the lack of documents on entry or the use of forged documents should not per se entail an automatic recourse to an accelerated examination procedure or a border procedure. |
| (76) | Where an applicant does not comply with certain obligations arising from this Regulation, Regulation (EU) 2024/1351 or Directive (EU) 2024/1346, the application should not be further examined and it should in principle be rejected or declared as implicitly withdrawn, and any new application in the Member States by the same applicant after that decision should be considered to be a subsequent application. Where a person made a subsequent application in another Member State and is transferred to the Member State responsible pursuant to Regulation (EU) 2024/1351, the responsible Member State should not be obliged to examine the application made in the other Member State. |
| (77) | Where an applicant makes a subsequent application without presenting new elements which significantly increase his or her likelihood of qualifying as a beneficiary of international protection or which relate to the reasons for which the previous application was rejected as inadmissible, that subsequent application should not be subject to a new full examination procedure. In those cases, following a preliminary examination, applications should be rejected as inadmissible in accordance with the res judicata principle. The preliminary examination should be carried out on the basis of written submissions or a personal interview. The personal interview may, in particular, be dispensed with in those instances where, from the written submissions, it is clear that the application does not give rise to new elements. In the case of subsequent applications, exceptions may be made to the individual’s right to remain on the territory of a Member State. |
| (78) | An applicant who lodges a subsequent application at the last minute merely in order to delay or frustrate his or her removal should not be authorised to remain pending the finalisation of the decision declaring the application inadmissible in cases where it is immediately clear to the determining authority that no new elements have been presented and there is no risk of refoulement. The determining authority should issue a decision under national law confirming that these criteria are fulfilled in order for the applicant not to be authorised to remain. |
| (79) | A key consideration as to whether an application for international protection is well-founded is the safety of the applicant in his or her country of origin. Having regard to the fact that Regulation (EU) 2024/1347 aims to achieve a high level of convergence on the qualification of third-country nationals and stateless persons as beneficiaries of international protection, this Regulation establishes common criteria for designating third countries as safe countries of origin, in view of the need to strengthen the application of the safe country of origin concept as an essential tool to support the swift examination of applications that are likely to be unfounded. |
| (80) | It should be possible to designate a third country as safe country of origin with exceptions for specific parts of its territory or clearly identifiable categories of persons. In addition, the fact that a third country is included in a list of safe countries of origin cannot establish an absolute guarantee of safety for nationals of that country, even for those who do not belong to a category of persons for which such an exception is made, and therefore does not dispense with the need to conduct an appropriate individual examination of the application for international protection. By its very nature, the assessment underlying the designation can only take into account the general, civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in that country. For this reason, it should be possible to apply the concept of a safe country of origin only where the applicant cannot provide elements justifying why the concept of safe country of origin is not applicable to him or her, in the framework of an individual assessment. |
| (81) | The designation of safe countries of origin and safe third countries at Union level should address some of the existing divergences between Member States’ national lists of safe countries. While Member States should retain the right to apply or introduce legislation that allows for the national designation of third countries other than those designated as safe third countries or safe countries of origin at Union level, such common designation or list should ensure that the concepts are applied by all Member States in a uniform manner in relation to applicants whose countries of origin are designated or for whom there is a safe third country. This should facilitate convergence in the application of procedures and thereby also deter secondary movements of applicants for international protection. |
| (82) | The Commission, assisted by the Asylum Agency, should review the situation in third countries designated as safe third countries or safe countries of origin at Union level. Where there is a significant change for the worse in the situation of such a third country and following a substantiated assessment, the Commission should be able to suspend the designation of that third country as safe third country or safe country of origin at Union level for a limited period of time by means of a delegated act. The Commission should also be able to extend the suspension of the designation of a third country as a safe third country or a safe country of origin at Union level for a period of six months, with a possibility to renew that extension once. In order to address significant changes for the worse in a third country designated as a safe third country or safe country of origin at Union level, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of suspending the designation of that third country as safe third country or safe country of origin at Union level for a period of six months where the Commission considers, on the basis of a substantiated assessment, that the conditions set by this Regulation are no longer met, and to extend the suspension of the designation of a third country as a safe third country or a safe country of origin at Union level for a period of six months, with a possibility to renew that extension once. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making (18). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. |
| (83) | The Commission should continuously review the situation in that third country taking into account inter alia information provided by the Member States and the Asylum Agency regarding subsequent changes in the situation of that third country. Moreover, in this case, the Commission should propose an amendment in accordance with the ordinary legislative procedure to remove that third country’s designation as a safe country at Union level within 3 months of the adoption of delegated act suspending that third country. For the purposes of the substantiated assessment, the Commission should take into consideration a range of sources of information at its disposal, in particular its annual progress reports for third countries designated as candidate countries by the European Council, regular reports from the European External Action Service and the information from Member States, the Asylum Agency, the United Nations High Commissioner for Refugees, the Council of Europe and other relevant international organisations. |
| (84) | When the period of validity of the delegated act and its extensions expires, without a new delegated act being adopted, the designation of the third country as safe third country or safe country of origin at Union level should no longer be suspended. This should be without prejudice to any proposed amendment for the removal of the third country from the designation. |
| (85) | The Commission, with the assistance of the Asylum Agency, should review the situation in third countries that have been removed from the designation as safe countries of origin or safe third countries at Union level, including where a Member State notifies the Commission that it considers, on the basis of a substantiated assessment, that, following changes in the situation of that third country, it fulfils again the conditions set out in this Regulation for being designated as safe. In such a case, Member States could only designate that third country as a safe country of origin or a safe third country at the national level as long as the Commission does not raise objections to that designation within a period of two years after the date of removal from the designation of that third country as safe third country or safe country of origin at Union level. Where the Commission considers that these conditions are fulfilled, it may propose an amendment to the designation of safe third countries or safe countries of origin at Union level so as to add the third country. |
| (86) | With respect to the withdrawal of refugee or subsidiary protection status, Member States should ensure that persons benefiting from international protection are duly informed of a possible reconsideration of their status and that they are given the opportunity to submit their point of view, within a reasonable time, by means of a written statement and in a personal interview, before the authorities can take a reasoned decision to withdraw their status. |
| (87) | Decisions taken on an application for international protection rejecting it as inadmissible, as unfounded or manifestly unfounded in relation to refugee or subsidiary protection status, or as implicitly withdrawn, as well as decisions to withdraw refugee or subsidiary protection status should be subject to an effective remedy before a court or tribunal in compliance with all requirements and conditions laid down in Article 47 of the Charter. To ensure the effectiveness of the procedure, the applicant should lodge his or her appeal within a set time limit. For the applicant to be able to meet those time limits and with a view to ensuring effective access to judicial review, he or she should be entitled to free legal assistance and representation. This should be without prejudice to the possibility for applicants or beneficiaries of international protection to benefit from other remedies of general application provided for at national level which are not specific to the procedure for granting or withdrawing international protection. |
| (88) | In some Member States, legal procedural provisions require there to be a second level of appeal beyond that which is required in accordance with this Regulation. In the light of the principles of proportionality and subsidiarity, and having due regard to the procedural autonomy of the Member States, as well as the objectives of this Regulation, it is appropriate to provide for a flexible definition of what constitutes a final decision by means of referring to national law, it being understood that Member States should as a minimum provide for the remedies laid down in Chapter V of this Regulation before a decision becomes final in accordance with national law. Where a subsequent application has been made before the decision on a previous application becomes final, it should be considered to be a further representation and examined in the framework of the ongoing administrative or appeal procedure as appropriate. |
| (89) | The notion of court or tribunal is a concept governed by Union law, as interpreted by the Court of Justice of the European Union. That notion, among other elements, can only mean an authority acting as a third party in relation to the authority which adopted the decision forming the subject-matter of the proceedings. That authority should perform judicial functions and it is not decisive whether that authority is recognised as a court or tribunal under national law. This regulation should not affect Member States’ competence to organise their national court system and determine the number of instances of appeal. Where national law provides for the possibility to lodge further appeals against a first appeal or subsequent appeals decision, the procedure and the suspensive effect of such appeals should be regulated in national law, in accordance with Union law and international obligations. |
| (90) | For the purposes of the appeal procedure, Member States could provide that hearings before a court or tribunal of first instance could be held via video conference, provided that the necessary arrangements are in place. |
| (91) | For an applicant to be able to exercise his or her right to an effective remedy against a decision rejecting an application for international protection, all effects of the return decision should be automatically suspended for as long as the applicant has the right to remain or has been allowed to remain on the territory of a Member State. |
| (92) | Applicants should, in principle, have the right to remain on the territory of a Member State until the time limit for lodging an appeal before a court or tribunal of first instance expires, and, where such a right is exercised within the set time limit, pending the outcome of the appeal. It is only in the limited cases set out in this Regulation, where applications are likely to be unfounded, and without prejudice to the principle of non-refoulement, that the applicant should not have an automatic right to remain for the purposes of the appeal. |
| (93) | In cases where the applicant has no automatic right to remain for the purposes of the appeal, a court or tribunal should still be able to allow the applicant to remain on the territory of the Member State pending the outcome of the appeal, upon the applicant’s request or acting of its own motion. In such cases, applicants should have a right to remain until the time limit for requesting a court or tribunal to be allowed to remain has expired and, where the applicant has presented such a request within the set time-limit, pending the decision of the competent court or tribunal. In order to discourage abusive or last minute subsequent applications, Member States should be able to provide in national law that applicants should have no right to remain during that period in the case of rejected subsequent applications, with a view to preventing further unfounded subsequent applications. In the context of the procedure for determining whether or not the applicant should be allowed to remain pending the appeal, the applicant’s rights of defence should be adequately guaranteed by providing him or her with the necessary interpretation and legal assistance. Furthermore, the competent court or tribunal should be able to examine the decision refusing to grant international protection in terms of facts and points of law. |
| (94) | In order to ensure effective returns, applicants should not have a right to remain on the Member State’s territory at the stage of a second or further level of appeal before a court or tribunal against a negative decision on the application for international protection, without prejudice to the possibility for a court or tribunal to allow the applicant to remain. |
| (95) | To ensure the consistency of the legal review carried out by a court or tribunal on a decision rejecting an application for international protection and the accompanying return decision, and with a view to accelerating the examination of the case and reducing the burden on the competent judicial authorities, such decisions should, if taken as part of the related decision on the application for international protection or decision to withdraw international protection, be subject to common proceedings before the same court or tribunal. |
| (96) | In order to ensure fairness and objectivity in the management of applications and effectiveness in the common procedure for international protection, time limits should be set for the administrative procedure. |
| (97) | In accordance with Article 72 TFEU, this Regulation does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. |
| (98) | Regulation (EU) 2016/679 of the European Parliament and of the Council (19) applies to the processing of personal data by the Member States carried out in application of this Regulation. |
| (99) | Any processing of personal data by the Asylum Agency within the framework of this Regulation should be conducted in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (20), as well as Regulation (EU) 2021/2303 and it should, in particular, respect the principles of necessity and proportionality. |
| (100) | Any personal data collected upon registration or lodging of an application for international protection and during the personal interview should be considered to be part of the applicant’s file and it should be kept for a sufficient number of years since third-country nationals or stateless persons who request international protection in one Member State may try to request international protection in another Member State or may submit further subsequent applications in the same or another Member State for years to come. Given that most third-country nationals or stateless persons who have stayed in the Union for several years will have obtained a settled status or even citizenship of a Member State after a period of ten years from when they are granted international protection, that period should be considered a necessary period for the storage of personal details, including fingerprints and facial images. |
| (101) | This Regulation does not deal with procedures between Member States governed by Regulation (EU) 2024/1351, including as regards appeals in the context of those procedures. |
| (102) | This Regulation should apply to applicants to whom Regulation (EU) 2024/1351 applies, in addition and without prejudice to the provisions of that Regulation. |
| (103) | With a view to ensuring the consistent implementation of this Regulation by the time of its entry into application, implementation plans at Union and national levels that identify gaps and operational steps for each Member States should be developed and implemented. |
| (104) | The application of this Regulation should be evaluated at regular intervals. |
| (105) | Since the objective of this Regulation, namely to establish a common procedure for granting and withdrawing international protection, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of this Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. |
| (106) | In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 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, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. |
| (107) | In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. |
| (108) | This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter. In particular, this Regulation seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 8, 18, 19, 21, 23, 24, and 47 of the Charter, |