The Directive applies to all Member States except Denmark. The Member States were required to have domestic legislation in place complying with the Directive by 1 December 2007. The legislation applies to applications for asylum lodged after 1 December 2007. The Immigration, Residence and Protection Bill 2010 proposes new legislative provisions to give effect to the Directive. The purpose of the Directive is to establish minimum standards for procedures within EU Member States for granting and withdrawing refugee status. The Directive is divided into six chapters dealing with, respectively, general provisions, basic principles and guarantees, procedures at first instance, procedures for withdrawal of refugee status, appeals procedures, and general provisions. The Directive provides asylum seekers with certain rights and guarantees, including the right to access the procedure, the right to remain in the Member State pending examination of an asylum application, and the right to an effective remedy. Article 8 sets out the requirements for the examination of applications. Member States are required to ensure that applications for asylum are neither rejected nor excluded on the sole ground that they were not made as soon as possible.
Member States are required to ensure that decisions are taken after an appropriate examination. The first-instance examination procedure is laid out in Article 23.
Articles 15 and 16 set out provisions on legal assistance and representation. Member States are required to allow applicants to consult a legal advisor at their own cost. Free legal assistance must be granted on request in the event of a negative decision at first instance. Article 17 sets out guarantees for unaccompanied minors. Member States are required to take measures to ensure that a representative assists any minor. Member States may refrain, however, from appointing a representative, inter alia, where the minor will in all likelihood reach 18 years of age before a first instance decision is taken. Interviews are to be conducted and decisions prepared by people with the necessary knowledge of the special needs of minors. Member States are permitted to use medical examinations to determine the age of an unaccompanied minor. Member States are not permitted to hold a person in detention for the sole reason of being an asylum applicant. Where an applicant for asylum is detained, Member States are required to ensure that there is a possibility of speedy judicial review.
Articles 19 and 20 deal with withdrawal of refugee status. Member States are obliged to ensure that a decision is taken either to discontinue or reject the application where an applicant explicitly withdraws a claim. Where there is reasonable cause to consider that an applicant has implicitly withdrawn or abandoned a claim, Member States are obliged to ensure that a decision is taken either to discontinue or reject a claim “on the basis that the applicant has not established an entitlement to refugee status in accordance with Directive 2004/83/EC.”
Article 26 deals with the ‘first country of asylum’ concept. A country can be considered to be a first country of asylum where an applicant has been recognised as a refugee or enjoys protection in that country. Article 27 deals with the safe third country concept, and provides that Member States may apply the safe third country concept where “the competent authorities” are satisfied that a person who is seeking asylum will be treated in accordance with certain principles, and that the application of the concept shall be subject to nationally legislated rules.
Articles 29, 30 and 31 deal with the concept of the safe country of origin. Articles 29 and 30 provide for the designation of a third country as a safe country of origin. Article 29 provides for the adoption of a “minimum common list of third countries regarded as safe countries of origin”, by way of the European Council acting by a qualified majority after a proposal from the European Commission. Member States can retain or introduce domestic legislation designating third countries other than those on the minimum common list as safe countries of origin. A designated safe country of origin may be considered safe for a particular applicant where the applicant is either a national of the country or was formally habitually resident there and has not submitted any “serious grounds” for considering the country not to be safe in the particular circumstances of the case in accordance with Directive 2004/83/EC.
Under Article 36 Member States are permitted to provide that no examination of an asylum application shall take place where it is established that the asylum applicant is seeking to enter or has entered the Member State from a safe third country. Article 36(3) provides for the adoption of a “common list of safe third countries”, by way of the European Council acting by a qualified majority after a proposal from the European Commission. Articles 37 and 38 deal with procedures for a withdrawal of refugee status. An examination to withdraw may commence when “new elements or findings arise indicating that there are reasons to reconsider the validity” of the applicant’s refugee status.
Article 38 sets out the procedural rules for withdrawal. A refugee has a right to submit reasons why refugee status should not be withdrawn. Certain guarantees including the refugee’s right to legal advice, and the UNHCR’s right “to have access to applicants for asylum” are suspended until a decision has been taken. Member States may decide that refugee status will lapse where there are changed circumstances or when the refugee renounces refugee status.
The Directive also sets out provisions for appeals procedures and the right to an effective remedy. Member States are required to ensure that applicants have the right to an effective remedy before a court or tribunal against certain decisions in the process.
