Sunday 28 April 2024

The new EU asylum laws, part 7: the new Regulation on asylum procedures


 


Professor Steve Peers, Royal Holloway, University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

(last updated 10 June 2024: changed text marked by asterisks)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws, which was formally adopted on May 14 2024, and published in the EU Official Journal on 22 May 2024.*

I have looked at all the new legislation on this blog in a series of blog posts.* This is the seventh post in the series, on the asylum procedures Regulation, along with the parallel Regulation on a borders return procedure. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the revised Dublin Regulation/AMMR (part 6), and the crisis Regulation plus general comments (part 8).*

The new package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The asylum procedures Regulation

The EU’s development of a Common European Asylum System in multiple phases has included a first phase asylum procedures Directive, adopted in 2005, and a second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’). The case law on the 2013 Directive is presumably still relevant to the 2024 Regulation, except where the latter has changed the text of the rules.

The UK and Ireland both opted into the first phase Directive, but not the second, although the UK is no longer bound by EU law due to Brexit. Ireland has also opted out of the 2024 Regulation (update, April 29 2024: Ireland has announced an intention to opt in to the Regulation).* Denmark has opted out of all the procedures laws.

The legislative process leading to the 2024 Regulation began with a proposal in 2016, which was supplemented by a revised proposal tabled in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact. The parallel Regulation on a border return procedure was carved out of the proposal; the reason for a separate law on this is that unlike the main procedures Regulation, the border return procedure Regulation will also apply to Denmark and Schengen associated countries. 

Substance of the Regulation

Like most of the new asylum laws (except the resettlement Regulation, which will apply almost immediately), the new procedures and border returns procedure Regulations will apply in about two years’ time - namely applications made after 12 June 2026.* But certain provisions (on the revised borders procedure) will have some effect earlier than that, as discussed below. Furthermore, the Commission must produce a ‘common implementation plan’ to the Council within three months of the entry into force of the procedures and border return procedure Regulations (it is planning to issue this early, in June); Member States must produce national implementation plans by December 12 2024.*

The objective of the procedures Regulation, according to the preamble, is ‘to streamline, simplify and harmonise the procedural arrangements of the Member States by establishing a common procedure for international protection in the Union’. Instead of the ‘current disparate procedures’, applications ‘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’; this ‘should limit the secondary movements’ of asylum seekers.

To examine what the Regulation does to achieve these goals, this blog post will examine in turn: the general provisions of the Regulation; the basic guarantees for applicants; the start of the administrative procedure; the examination of applications; the border procedure (including the separate Regulation on a border returns procedure); other special procedures (accelerated applications and repeat applications); ‘safe country’ concepts (first country of asylum, ‘safe third country’, and ‘safe country of origin’); withdrawal procedures; appeals; and an overall assessment. It will focus in particular on the various ‘fast-track’ rules (borders, inadmissibility, repeat applications, accelerated cases, ‘safe’ countries) – many of which have been significantly amended – as well as the key rules on time limits and appeals.

General Provisions

As before, the Regulation applies to applications made on the territory or at the external border, including the territorial sea and transit zones, and to withdrawal of international protection, but not to applications made in consulates – although Member States can choose to apply it to applications for national forms of protection if they wish to. Conversely, one fundamental change is that unlike the 2013 Directive, the Regulation is no longer a minimum standards measure: it fully harmonises the law except where it leaves specific flexibility to Member States. This parallels the changes made to EU law on qualification for asylum (see part 1).

Guarantees for Applicants

Crucially, there is still a right for asylum-seekers to remain on the territory until the first instance decision on their application, subject to limited exceptions: the previous exceptions for repeat applications, European Arrest Warrants, or (subject to non-refoulement, ie no removal to an unsafe country) extradition to a non-EU country, plus a new exception for public security. The previous rules on personal interviews, legal assistance, special guarantees, and medical examinations are also retained with amendments (for instance, it is now mandatory to record interviews); and there is a new provision on age assessment.

Start of the Procedure

The Regulation elaborates upon the process of starting the asylum process, retaining also the key rule that asylum seekers should have an ‘effective opportunity’ to lodge an application for asylum (on the equivalent provision in the 2013 Directive, see, for example, Cases C-808/18, C-823/21, C-72/22 PPU, and C-392/22: ruling out various national measures restricting access to the asylum process, such as limitations on the numbers allowed to cross the border to apply, obligations to apply abroad in advance, pushbacks, and a refusal to consider applications in ‘instrumentalisation’ cases, ie where Belarus shoved people across the border).

Examination of Applications

The Regulation’s rules on examination of asylum applications include more harmonisation of deadlines to make decisions on asylum applications. The general deadline to decide on applications remains six months, with a further six months (rather than nine months, as previously) in three scenarios (somewhat revised: ‘complex issues of fact or law’, ‘disproportionate’ numbers of applications at around the same time, and the applicant’s non-compliance), and (as before) a possible extension to a total of 21 months after lodging the application where there is an ‘uncertain’ situation which is ‘expected to be temporary’. A previous possible general extension for three months has been dropped.

There are also deadlines in other cases now too: two months for admissibility decisions (and only ten working days for one ground of inadmissibility, relating to returns procedures); three months for accelerated proceedings; and an unspecified time limit (which must be shorter than the normal deadlines) where a court has referred a case back to the administration for a new decision.

Another big change is an important new obligation to issue return decisions pursuant to the Returns Directive alongside (or as part of) rejections of asylum applications. If a return decision has previously been issued, there is no need to issue a new one. If the return decision is separate from the asylum refusal, it must either be issued simultaneously or ‘without undue delay’ afterwards.  

Changes have also been made to the rules on inadmissibility of asylum applications – which are primarily applications which the EU believes have been, or should have been, dealt with already. As before, applications must be found inadmissible if they are repeat applications, with a slightly reworded exception: if there are ‘no new relevant elements’ (replacing ‘no new elements or findings’). Applications may be ruled inadmissible (also as before) in the event of the ‘first country of asylum’ or ‘safe third country’ principles applying, or another Member State granting international protection. However, unlike the Dublin rules as regards asylum seekers (see Part 5), there is no recognition of the CJEU case law providing that in exceptional cases a beneficiary of international protection in one Member State may request it from another Member State, if there are systematic deficiencies or an individual risk in the other Member State (see, for instance, Ibrahim).

There are also new possibilities for optional inadmissibility: an ‘international criminal court has provided relocation’, under certain conditions; or the application was filed more than a week after a return decision was issued to the person concerned, if the applicant was aware of the consequences of missing that deadline, and there are ‘no new relevant developments’ since that date. Furthermore, an application which another Member State is responsible for under the Dublin rules is still not examined on the merits (other than by the Member State responsible). Withdrawn applications are still not examined on the merits either.

Finally, the rules on withdrawal of applications now require Member States to provide for both explicit and implicit withdrawal, along with many more procedural rules than before – although the safeguard of having another opportunity to apply in cases of implied withdrawal has been dropped. Also, as noted in part 6, parallel changes to the Dublin rules mean that in some cases asylum seekers who move to another Member State will in some cases no longer have the right to have their applications considered after being transferred back to the responsible Member State.

Border Procedure

A key feature of the Regulation compared to the 2013 Directive is its approach to border procedures – which were previously an option for Member States to decide on cases subject to inadmissibility or accelerated procedures at the border or transit zones. Where there was no decision within four weeks, the applicant had to be released from detention and allowed entry into the territory of the Member State to continue with the application (see Cases C-808/18 and C-924/19 and C-925/19 PPU); and there were special rules for a large number of applicants at the border.

Under the 2024 Regulation, the scope of the border procedure is defined first, as an option – consisting of people who are not yet authorised to enter the territory. But the border procedure cannot be applied if neither inadmissibility or accelerated procedures apply, or if there is insufficient support for people with special reception or procedural needs at the border locations, or for medical reasons, or if detention standards in accordance with the reception conditions directive cannot be applied at the border. In that case the asylum-seekers must be allowed to enter the territory, and a regular procedure must apply. Also, the border procedure can only be applied to unaccompanied minors in cases of national security or public order. The purpose of the border procedure is to decide on inadmissible cases or some accelerated cases.

What is the impact of the border procedure in practice? First of all, Member States must not allow those subject to the border procedure to enter their territory, ‘without prejudice’ to the exceptions from the border procedure or to the time limits on application of the border procedure; but in the latter case, there are several exceptions where the asylum-seeker still cannot be allowed to enter the territory and the border returns Regulation must apply instead. Moreover, Member States must ensure human rights monitoring of the border procedure equivalent to that in the Screening Regulation (see part 5).

But as with that Regulation, the ban on entering the territory is a legal fiction, as the locations of the border procedure could be either at or near the borders or transit zones or on the territory; yet this still does not count as authorisation to enter the territory. Even travel for health care or legal proceedings does not count; the Regulation maintains its legal fiction even inside courtrooms. However, as with the screening process, this legal fiction does not mean that the borders procedure is a law-free zone. Far from it: the Regulation itself applies a corpus of law to the procedure, and makes other law applicable too, referring to the detention conditions standards under the reception conditions Directive (see Part 2) and the basic procedural guarantees in the procedures Regulation itself – which include the right to remain until the first instance decision. The absence of a right to enter may, however, make it easier to justify detention from an ECHR perspective, given the ground to detain to prevent unauthorised entry in Article 5(1)(f) ECHR; and in any event, the revised reception conditions Directive provides that being subject to the borders procedure is a ground for detention as such.

Secondly, there is a 5-day deadline to lodge applications, and a 12-week deadline to decide on them. Member States must derogate from the usual administrative and judicial deadlines in the Regulation to ensure that the 12 week deadline is met – although this can be extended to 16 weeks in relocation cases. If the deadline is not complied with, then the asylum seeker can enter the territory, unless the border return procedure applies. Note that the 12 week deadline covers both administrative and judicial procedures – whereas the usual three months for accelerated cases and two months for inadmissibility cases only cover the administrative phase. Presumably, in line with the prior case law, detention (at least, detention solely on border procedure grounds) must still end when the time limit for the border procedure expires (again, see Cases C-808/18 and C-924/19 and C-925/19 PPU); but that procedure (and therefore detention) can apply for much longer than the 4 weeks under the previous Directive.

The most fundamental change from the previous Directive is that the border procedure is now mandatory, for three categories of accelerated cases: misleading statements or bad faith behaviour; national security or public order; and the new category of applicants from countries with low recognition rates (below 20%). However, this obligation applies to a limited number of asylum-seekers: the ‘adequate capacity’ for the mandatory border procedure is set at 30,000 people across the EU, and the Commission is to determine the allocation of that capacity for each Member State, with the numbers that each Member State is obliged to assess in a border procedure rising to a total of 120,000 annually by 2028. The Commission must adopt the first of these allocation decisions within two months of the Regulation’s entry into force, then will adopt further such measures on October 15 for subsequent three-year periods.

For those whose application is rejected while in the borders procedure, the parallel Regulation on a border return procedure applies. This Regulation provides that those rejected in the border procedure still do not have a right to enter the territory. Instead, Member States must require them to reside for up to 12 weeks ‘in locations at or in proximity to the external border or transit zones’; but if Member States cannot accommodate the refused asylum seekers there, they can resort to using other locations on their territory – exacerbating the legal fiction of non-entry. A swathe of provisions of the Returns Directive apply during this process. In fact, the Returns Directive fully applies if the rejected asylum seeker is not returned within the 12 week period. However, the rules on the prospect of voluntary departure are stricter than under that Directive.

The borders return procedure Regulation also includes rules on detention. There is a general provision that detention is a ‘last resort if it proves necessary on the basis of an individual assessment of each case and if other less coercive measures cannot be applied effectively’, but that is then undercut by more specific provisions. These provide for continued detention (post refusal of asylum) of those detained already, ‘for the purpose of preventing their entry into the territory of the Member State concerned, of preparing their return or of carrying out the removal process’. Rejected asylum seekers who were not detained before can be detained too, on partly different grounds: ‘risk of absconding’ as defined in the Returns Directive, or ‘if they avoid or hamper the preparation of return or the removal process or they pose a risk to public policy, public security or national security’. But there are time limits to detention under the border return procedure: either the 12-week maximum in this Regulation, or (if detention is ordered under the Returns Directive after that period expires) the detention under the Regulation counts towards the time limits on detention in that Directive. Logically, by analogy with the case law on the border procedure, detention under the border returns procedure must end when this time limit is up – unless there is another ground for detention.

Accelerated Procedures and Repeat Applications

Besides the radically overhauled rules on the border procedure, there are two other types of special procedures retained in the new Regulation: for accelerated applications and repeat applications. Both of these special procedures have also been amended.

First of all, the rules on accelerated procedures are now mandatory (‘shall’), rather than optional (‘may’). As before, there are ten grounds for accelerated procedures, although some of them have changed:

a) the claim is irrelevant to the grounds of international protection;

b) obviously false or contradictory claims;

c) the asylum seeker has been misleading or acted in bad faith destroying documents (now subject to a ‘good cause’ justification, and a requirement of intention);

d) the asylum seeker has brought the claim to frustrate an expulsion order;

e) the rules on ‘safe country of origin’ apply;

f) national security or public order;

g) the application is a repeat application that is not inadmissible (ie it has new elements);

h) the asylum-seeker entered or stayed ‘unlawfully’ and ‘without good reason’ did not present themselves to the authorities ‘as soon as possible, given the circumstances of’ their entry (similar to the provisions of Article 31 of the Refugee Convention, on the conditions for non-application of penalties to refugees who entered unlawfully);

i) (new) the applicant entered lawfully, but ‘without good reason’ did not apply ‘as soon as possible, given the grounds of his or her application’, although this is ‘without prejudice’ to applications sur place (ie applications for asylum due to new circumstances after entry on the territory; see part 1);

j) and finally (also new) the applicant is a national or a stateless habitual resident of a country with a recognition rate below 20% or below, according to annual Eurostat data – unless there has been a ‘significant change’ in that country, or the asylum seeker ‘belongs to a category of persons for whom the proportion of 20% or lower cannot be considered as representative for their protection needs, taking into account, among others, the significant differences between first instance and final decisions.’

This move to a mandatory accelerated procedure for a potentially large proportion of applications – with an apparently absolute obligation to decide cases within three months – is watered down by the new possibility that the determining authority may simply decide that the case is ‘too complex’, so the ordinary procedure must apply. Obviously the interpretation of the various grounds for applying accelerated procedures will be crucial. Furthermore, for unaccompanied minors, only five of the ten grounds can be applied; and the obligation to apply accelerated procedures is ‘without prejudice’ to the rules on vulnerable persons, which state that an authority must not apply (or cease applying) an accelerated procedure if it believes that ‘the necessary support cannot be provided within the framework’ of that procedure, ‘paying particular attention to victims of torture, rape or other serious forms of psychological, physical, sexual violence or gender-based violence’.

In contrast, fewer changes have been made to the rules on repeat applications. As before, an application made before the previous application has been decided does not count as a repeat application, and repeat applications made in any Member State after a final decision was taken must be considered by the Member State responsible under the Dublin rules. It remains to be seen whether an application in a second Member State counts as a repeat application under the 2013 Directive (see Khan Yunis, pending; an application following a decision in Norway (Case C-8/20) or Denmark (Case C-497/21) does not count as a repeat application, because those countries are not bound by EU asylum law other than Dublin); and the point might be relitigated under the Regulation.

In the event of a repeat application, there is still an initial examination, although it now looks solely at whether there are new elements (rather than new elements or findings) which ‘significantly increase the likelihood of the applicant to qualify’ for international protection (see interpretation of this rule in the 2013 Directive by the CJEU: it can apply to CJEU judgments (Cases C-924/19 and C-925/19 PPU and C-216/22), and to new documents (Case C-921/19)). If there are new elements as defined, then the repeat application has to be considered on the merits, unless another ground of inadmissibility applies. Otherwise, there is an obligation to consider the repeat application inadmissible. Finally, as before Member States have an option to remove the right to remain on the territory during repeat applications, or the suspensive effect of appeals, if there are no new elements and the asylum seeker has made a first repeat application ‘merely in order to delay or frustrate the enforcement of a decision which would result in the applicant's imminent removal from that Member State’, or if they have made multiple repeat applications. But this is still subject to the principle of non-refoulement, although it is no longer clear how that should be assessed. And as noted already, those repeat applications which are not inadmissible (because they do not raise new elements) are anyway (ie even if they do raise new elements) still subject to the rules on accelerated procedures – which are now also mandatory.

‘Safe’ Country Concepts

As before, there are three types of ‘safe country’ concepts (‘first country of asylum’, ‘safe third country’, and ‘safe country of origin’), but there are a number of changes to them.

First of all, there is a new overarching definition of ‘effective protection’, which is relevant to the first two of the three rules. If a non-EU country ‘has ratified and respects’ the Refugee Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’. But in other cases, and where a non-EU country has applied a geographical limit to the Convention, that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care, and education, and ‘effective protection remains available until a durable solution can be found’. In practice, the point is most obviously relevant to Turkey, where the invocation of the geographical limit in Article 1.B of the Convention means that only those fleeing Europe can claim refugee status – leaving African or Asian people unable to claim refugee status in Turkey, despite its position as a transit country. The new provision has presumably been inserted to confirm the practice of the EU institutions and Member States of assuming that Turkey meets the definition of ‘safe third country’ – a point not tested before the CJEU. But the new law means that even countries which have not ratified the Convention at all can be covered by the ‘effective protection’ concept.

This brings us to the ‘first country of asylum’ notion as such: the idea that the asylum seeker (supposedly) already had protection elsewhere. The concept is elaborated upon, compared to the previous Directive: it can ‘only’ apply if the person enjoyed refugee status or ‘effective protection’ as already defined, and is not threatened on Refugee Convention grounds, does not face a subsidiary protection risk as defined in the Qualification Regulation, and is protected against refoulement under the Convention and removal to face an Article 3 ECHR risk. The Regulation also includes specific protections for unaccompanied minors, and builds upon previous requirements that the asylum seeker must be readmitted to that country and can challenge the determination.

Secondly, the concept of ‘safe third country’ – the idea that the asylum seeker (supposedly) already could have sought protection elsewhere – is retained, with some amendments: not threatened on Refugee Convention grounds; not facing a subsidiary protection risk as defined in the Qualification Regulation; protected against refoulement under the Convention and removal to face an Article 3 ECHR risk (of torture or other inhuman or degrading treatment); and (as revised) able to enjoy ‘effective protection’ in the non-EU country (as defined by the Regulation), in place of (previously) being able to obtain refugee status under the Refugee Convention. Another change is that it is possible to exempt parts of a country or certain groups of people from that country from the designation, or even (bizarrely) to target it on individual applicants. The previous variation on this rule – sarcastically dubbed the ‘super-safe third countries’ rule – has been dropped.

Crucially, the Regulation retains key safeguards: asylum-seekers can still challenge the application of the concept in their individual circumstances, and it is still necessary to have a ‘connection between the applicant and the third country in question on the basis of which it would be reasonable for him or her to go to that country’. The preamble still suggests a high threshold to find a ‘connection’ with the non-EU country (‘[t]he 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’), consistently with the case law on the 2013 Directive (see Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries), apparently still ruling out a ‘Rwanda’ policy (like the UK’s) of expelling asylum-seekers to countries they have nothing to do with – although as the example of the Italy/Albania deal suggests, the EU institutions may take a different view (the CJEU has not been asked yet whether it agrees with that view, and the Italy/Albania deal has significant differences from the UK’s Rwanda policy).

There is also a new safeguard for unaccompanied minors, and retained safeguards as regards information for the asylum-seeker and the third country, and if the asylum-seeker is not readmitted (on how this safeguard – notably not applicable to the UK’s Rwanda policy – works, see pending Case C-134/23). Finally, a new provision provides that a presumption of safety ‘may be considered fulfilled’ if the EU and a non-EU country agree in a treaty that ‘migrants admitted under this agreement will be protected in accordance with the relevant international standards and in full respect of the principle of non-refoulement’. But this is ‘without prejudice’ to the safeguards on individual assessment, unaccompanied minors, and – crucially again, and unlike the UK/Rwanda treaty – a connection with the country concerned, thus ruling out a Rwanda scenario in this context too.

Thirdly, the concept of ‘safe country of origin’ – ie, the asylum seeker was (supposedly) obviously never in danger to begin with – is retained, based (as before) on whether there is no risk of persecution or serious harm in a country, based on the legal and political situation there, taking account of the law, human rights record, non-refoulement and availability of effective remedies in that country. As with ‘safe third country’, it is now possible to exempt parts of a country or certain groups of people from that country from the designation. But as before, the concept can only to apply to nationals, or formerly resident stateless persons, of the country in question; and the presumption can be rebutted in an individual assessment. Furthermore, the preamble states (applying also to ‘first country of asylum’ cases) that these concepts should not apply where the asylum-seeker is covered by the family reunion Directive, or is the family member of an EU citizen with free movement rights.

For both the ‘safe third country’ and ‘safe country of origin’ notions (but not the ‘first country of asylum’ notion), there is a more fundamental step towards harmonisation: the prospect of common EU lists. This is the latest attempt at providing for such lists, and it implicitly assumes that they will be adopted by the ordinary legislative procedure (ie a Commission proposal, qualified majority in the Council and negotiation with the European Parliament). Such lists must comply with the general criteria which apply to the designation of such ‘safe’ countries, although the Commission must review the designations regularly; a comparable safeguard was notably rejected as regards the recent UK legislation on the supposed safety of Rwanda. And unlike in the UK, if the CJEU ruled that a designation of a country as ‘safe’ was in breach of the Charter, it would not be possible for the EU’s political institutions to simply pass a law saying that they considered it safe regardless of that judgment – because as primary EU law, the Charter takes precedence over EU legislation.

However, due to the potential for sudden developments in those non-EU countries, there is a potential fast-track process to amend the lists. In the event of ‘significant’ changes in a country on the list, the Commission must ‘conduct a substantiated assessment of the fulfilment by that country of the conditions’ in the Regulation, and can adopt a delegated act suspending the ‘safe’ status of that country for a period of six months if it believes that the conditions are no longer met. Within three months of that delegated act being adopted, the Commission has to decide whether or not to propose legislation to the Council and Parliament to make that suspension permanent. If it does not make such a proposal within three months, the suspension lapses, and the country returns to the list; if it does make a proposal, it can extend the suspension of the country from the list for two further six-month periods. But if the proposed legislation on permanent suspension is not adopted within 15 months, the country returns to the list.  

As for national lists, Member States can in principle adopt their own lists supplementing any EU list. However, they cannot put a country on a national list while the delegated act suspending that country from an EU list is in force. After a country is removed from the list by EU legislation, a Member State can potentially add that country back to a national list; but for a two-year period after the removal from the list, the Commission can block a Member State from doing that.

While all three types of ‘safe’ country rules remain optional in principle (‘may’), it is not clear whether the adoption of EU lists, which appears to be mandatory (‘shall’) changes that. Arguably, the real issue is the link with other parts of the Regulation: the ‘first country of asylum’ and ‘safe third country’ rules link to the inadmissibility rules, which remain optional (except as regards repeat applications with no new elements), while the ‘safe country of origin’ rules link to accelerated procedures, which have become mandatory. And both those types of procedures link to the borders procedure, albeit not being grounds for the mandatory use of that procedure; some of the ‘safe country’ rules also entail no automatic suspensive effect of an appeal.

Withdrawal Procedure

There is still an obligation to start the process of withdrawing international protection if evidence emerges suggesting ‘reasons to reconsider’ that status. The rules on the procedure in such cases have been further developed, in particular providing for obligations upon the beneficiary of international protection to cooperate.

Appeals

As before, the right to an appeal has a broad scope, although it is redrafted in light of the revised terminology in the Regulation. In particular, while there is a right of appeal against the new prospect of a return decision issued in connection with a refusal of an asylum application, the return decision can be appealed separately if it was issued separately. Conversely, where a return decision is part of an asylum refusal, it must be appealed jointly (see the preamble). Subsidiary protection beneficiaries who were refused refugee status have a stronger right to appeal the refusal of refugee status. The right to a full ex nunc examination of facts and law, at least in the first instance of appeal, is retained (there is extensive case law on the equivalent provision of the 2013 Directive; see, for instance, Case C-406/18, trying to squelch the Hungarian government’s attempts at non-compliance with judgments). There are still provisions on interpretation and translation during appeals.

However, there is an important change as regards time limits: the Regulation now details deadlines for applicants to bring appeals, which must be between five and ten days as regards implicitly withdrawn, inadmissible, or accelerated cases, and between two weeks and a month in all other cases. There is also now an obligation for Member States to lay down deadlines on courts issuing judgments – although note that the CJEU case law on the 2013 Directive (where such deadlines were an option) said that the national courts should simply ignore those time limits if necessary to take enough time to consider the appeal sufficiently (Case C-406/18).

Finally, a crucial issue as regards appeals in asylum cases is their suspensive effect. As before, the Regulation grants the right to stay on the territory pending or during the exercise of the right to appeal (now extended to linked return decisions) – but subject to wide exceptions, ‘[w]ithout prejudice to the principle of non-refoulement’, which are now mandatory. The exceptions are: accelerated cases; border procedure cases (except for unaccompanied minors); most inadmissibility cases; implied withdrawals; repeat applications; and most withdrawals of status. Compared to the 2013 Directive, the lack of suspensive effect is broader for accelerated cases (the previous exception for unlawful entry cases was dropped, as were the additional safeguards in border procedure cases), different for inadmissible cases (automatic suspensive effect is still dropped for ‘first country of asylum’ and repeat applications; this now also applies to international court cases and last minute ‘frustration of return’ cases; it is no longer dropped for ‘other Member State’ cases), and new for implied withdrawals and withdrawals of status. Of course, many of these procedures are also now broader in scope, as discussed above.

However, there is still a safeguard applying to the exceptions: the national court hearing an appeal may decide to let the asylum-seeker stay anyway, in individual cases; and there are further safeguards pending that decision: as before, the right to stay as long as this interim decision could be or has been requested, plus new safeguards (a time limit of at least five days to request to remain during appeal; interpretation; legal aid; and being informed of the right). But there is now an option to drop the most important safeguard (the right to stay pending the decision on whether there is a longer right to stay) for repeat applications ‘if the appeal has been made merely in order to delay or frustrate the enforcement of a return decision which would result in the applicant’s imminent removal from the Member State’, although this is again ‘without prejudice to the respect of the principle of non-refoulement’, begging the question again of how that principle can be upheld if it is at risk in such cases. Integrating the prior case law, the Regulation provides that whether there is a further level of appeal, and whether the asylum-seeker gets to stay in that case, is up to Member States.

Assessment

The procedures Regulation does not simplify the rules, as claimed in the preamble: one special process is removed, but the remaining special procedures are made more complex, especially the borders procedure. If the EU really wanted to simplify asylum procedures, it could have cut the size of this Regulation by about two-thirds, by dropping all of the special procedures and simply setting out basic procedural guarantees and (uncomplicated) appeal rights. But obviously that is the last thing that Member States want to do.

Although the Regulation has not actually been simplified, it certainly entails significantly more harmonisation, not only by means of detailing the law further but also by means of making some provisions fully mandatory (accelerated procedures), or mandatory for a significant number of people (border procedures). And this move towards harmonisation does not only aim to deter secondary movements by the fact of harmonisation per se, but also (in conjunction with the Dublin rules) by providing that those who make an application then move between Member States will be regarded as having implicitly withdrawn their application. Furthermore, as with the revised Dublin Regulation and the amended reception conditions Directive, it prevents secondary movement by locking more people up – an implicit likely consequence of the greater use and longer duration of the borders procedure, which is a ground for detention per se.

To what extent does this threaten human rights protection? One issue here is the limited time periods to challenge a decision (which parallels the limited time periods to challenge a Dublin transfer decision). On this point, the CJEU case law on effective remedies in asylum cases is something of a dog’s dinner: a 15-day deadline in one context breached the principle of effectiveness of EU law (Danqua); a 15-day time limit in another context did not (Diouf); a 10-day deadline to challenge an inadmissibility decision was not a breach in one case (Case C-651/19), but a more general eight-day deadline in inadmissibility cases was (Case C-564/18); as was a three-day deadline in an accelerated procedure (Abboudnam). The most that can be gleaned from these cases is that if Member States choose the shortest possible deadlines available to bring challenges under the Procedures and Dublin Regulation, that short deadline may breach the Charter, depending on the details of the procedural circumstances.

As for (in effect) not allowing an asylum application at all because of secondary movements, this is fundamentally problematic, going beyond the logic of the Dublin system (applicants must have a chance to apply for asylum somewhere in the EU), or even the ‘safe third country’ principle (applicants should have applied for asylum somewhere else ‘safe’) – because it can apply regardless of whether someplace else is ‘safe’. It is submitted that this is a breach of the right to seek asylum in Article 18 of the Charter that cannot be justified on the basis of Article 52 of the Charter, because it breaches the essence of that right.

Finally, the new Regulation attempts to let itself ‘off the hook’ for low standards at several points, by saying that these low standards are without prejudice to the principle of non-refoulement. The best approach to these vague provisions is to interpret them by analogy to the case law on non-refoulement under the Returns Directive and as a back-up to the withdrawal of international protection – a right to stay on the territory and, where relevant, the suspensive effect of an appeal.

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