asylum procedures in the eu_a method in the madness_by elisabeth vos

Leiden University Master thesis LL.M. European Law 2015 - 2016

Asylum Procedures in the European Union: A Method in the Madness?

Elisabeth Catherina Vos

“Is the restriction in Article 23(1) of the Procedures Directive 2013 consistent with the

fundamental right to an effective remedy?”


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Contact information:

Student:

Elisabeth Catherina Vos

s0962570

@: [email protected] / [email protected]

T: +31 6 129 39 559

Supervisor:

Dr. Giovanni Gruni

@: [email protected]

T: +31 71 527 1578

Second reader:

Dr. Darinka Piqani

@: [email protected]

T: +31 71 527 8503

University:

Leiden University – Faculty of Law

LL.M. European Law 2015 -2016

T: +31 71 527 5200

Total amount of words: 11.568


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Oxford Dictionaries:

Definition of asylum in English:

asylum

Pronunciation: /əˈsʌɪləm /

____________________________________________________________________________________________

NOUN

1 [mass noun] (also political asylum) The protection granted by a state to someone who has left their home

country as a political refugee:

‘she applied for asylum and was granted refugee status’

[as modifier]: ‘his asylum application was refused’

1.1 Shelter or protection from danger:

‘we provide asylum for those too ill to care for themselves’

2 dated An institution for the care of people who are mentally ill:

‘he’d been committed to an asylum’

____________________________________________________________________________________________

ORIGIN

Late Middle English (in the sense ‘place of refuge’, especially for criminals): via Latin from Greek asulon ‘refuge’,

from asulos ‘inviolable’, from a- ‘without’+ sulon ‘right of seizure’. Current senses date from the 18th century.


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ABSTRACT

This thesis analyses the fundamental right to an effective remedy and whether this fundamental

right is adequately ensured in Article 23(1) of the recast Procedures Directive.

Asylum and thereto belonging standards for procedures dominates the contemporary legal

discourse in the European Union. The right to an effective remedy is particularly relevant in the

context of standards for asylum procedures and despite the fact that this fundamental right is

enshrined in international, European and EU legislation, a clear definition is lacking.

In this context, this thesis, first, critically analyses the notion of the fundamental right to an

effective remedy. For that purpose, it is of much importance to reflect on how this fundamental

right is conceptualized in both European and EU law, what the ratio is between these different

legal documents and jurisdictions, and how the right to an effective remedy has developed over

the years. More specifically, this research entails a substantive approach of Article 23(1) PD

which integrates the findings of the right to an effective remedy and thereto linked rights and

principles. The critical analysis is enriched with a view of the potential impact on the

effectiveness and coherence of human rights protection.

Keywords: EU Procedures Directive, fundamental rights, effective remedy, fair trial, good

administration, asylum procedures.


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Table of contents

List of abbreviations 6

1. Introduction 7

PART I – Preliminary Issues: legal context effective remedy and the recast Procedures Directive 2013

2. Substantive meaning of the right to an effective remedy 10

2.1. Substantive meaning of the right to an effective remedy 10

2.1.1. General content of the right to an effective remedy 10

2.1.2. The right to an effective remedy in the ECHR, the EU Charter

and national legislation 12

2.2. Scope of application of the right to an effective remedy 13

2.2.1. The right to a fair trial 14

2.2.2. The right to good administration 15

2.2.3. The principle of equality of arms 15

3. The EU approach to asylum procedures 16

3.1. The CEAS 16

3.1.1. Harmonisation of asylum legislation 17

3.1.2. The first and second phase of the CEAS 18

3.2. EU Procedures Directive (2013/32/EU) 18

3.3. Article 23(1) Procedures Directive: the scope of legal representation 19

PART II – Key issues: EU Procedures Directive and the scope of legal assistance

4. Substantial approach of Article 23(1) PD: restricting fundamental rights 21

4.1. Restricting fundamental rights of asylum applicants by Member States 21

4.2.Compliance test of Article 23(1) to Article 47 EU Charter 22

4.2.1. The right to a fair trial 22

4.2.2. The right to good administration 23

4.2.3. The principle of equality of arms 24


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4.3. Obligation to national legislator concerning safeguarding rights of applicants 25

4.3.1. Member States discretion 36

4.3.2. Threatening of fundamental rights coherence 37

5. The impact of Member States discretion:

ineffective fundamental rights protection 27

5.1. Procedural autonomy v. the principle of effectiveness 27

5.2.Threatening of coherence in fundamental rights protection 28

5.2.1. Effective and coherent system of fundamental rights protection 28

5.2.2. Legality of Article 23(1) Procedures Directive 29

PART III – Conclusions: Article 23(1) Procedures Directive and the fundamental right to an effective remedy

6. Just before fair asylum procedures in the European Union? 31

Bibliography 34


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List of abbreviations

AFSJ Area of Freedom, Security and Justice

A.G. Advocate-General

CEAS Common European Asylum System

CFR Charter of Fundamental Rights of the European Union

Charter Charter of Fundamental Rights of the European Union

Convention European Convention on Human Rights

Commission European Commission

EASO European Asylum Support Office

EC Treaty Treaty establishing the European Community (is now TEU)

ECHR European Convention on Human Rights

ECJ European Court of Justice

ECtHR European Court of Human Rights

EU European Union

EU Charter Charter of Fundamental Rights of the European Union

HCP High Contracting Parties (ECHR)

MS Member States of the European Union

PD Procedures Directive (recast)

RC Refugee Convention

TEU Treaty on European Union

TfEU Treaty on the functioning of the European Union

Treaties Treaty of Lisbon - TEU, TFEU and CFR

UN United Nations

UDHR Universal Declaration of Human Rights

UNHCR United Nations High Commissioner for Refugees

QD Qualification Directive (recast)


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1. Introduction

This research scrutinises Article 23(1) of the recast Procedures Directive (PD) in the context of

the fundamental right to an effective remedy. This research contests that Article 23(1) PD on

the scope of legal assistance and representation, properly guarantees effective fundamental

rights protection. The purpose of an appeal or judicial review is to control the legality of the

decision. It is a necessity to have effective legal representation and access to the documentation

the primary decision is based on. Furthermore, it is argued that in order to prevent a race to the

bottom in procedural standards, the current Procedures Directive does not serve to its purpose

of setting common standards in asylum procedures in the EU. This thesis finds increasing

relevance in the current refugee crisis in the European Union.1

Asylum and thereto belonging standards for procedures floods the contemporary legal

discourse in the European Union. The reception of asylum seekers and the related procedures

increasingly become a problem during the course of 2015 when a record number of asylum

applicants enter the territory of the European Union. These events started the populist emphasis

on the asylum debate: “asylum seekers are fortune-seekers”, “asylum seekers intend to abuse

the EU’s social system”, “many IS terrorists amongst asylum seekers”.2 The contentious view

that every asylum seeker with a beard is a terrorist was embraced by opponents of the EU’s

asylum policies to enforce their arguments and to influence national policy.3 Not to forget, late

2015, fear became reality when there were terrorist attacks on several targets in Paris in

November 2015, and in Brussels in March 2016.4 It soon became clear that some of the

attackers or related accomplices of the terrorist attacks, entered the European Union through

EU asylum procedures.

Anno 2016, a conclusion can be drawn that the EU’s asylum policies and politics are in a state

of deep crisis.5 Amongst the Member States there are a lot of disparities and even more

discontent, leaving the common EU system and policies on asylum to be ‘broken’.6

1 The on-going violence in Syria and other conflict zones, cause that all over the world people are fleeing from war

and persecution. Never before in our history, this many people are displaced and on the run for conflict. This

results in an enormous influx of asylum seekers in the EU. In 2015, close to 1.3 million asylum applications were

lodged in the EU Statistical Office, Eurostat: Asylum Statistics, Luxembourg, retrieved on 2 March 2016. 2 “Nato commander: ISIS ‘spreading like cancer’ among refugees” 1 March 2016, <theguardian.com/world/2016

/mar/01/refugees-isis-nato-commander-terrorists>, retrieved on 10 July 2016. 3 “Anti-Islam leader Wilders slams labour over 200,000 asylum seeker claim” 30 December 2015, <nltimes.nl/

2015/12/30/anti-islam-leader-wilders-slams-labour-over-200000-asylum-seeker-claim/>, retrieved 1 July 2016. 4 “Paris Attacks: What Happened on the Night?” 9 December 2015, <bbc.com/news/world-europe-34818994>,

retrieved on 1 July 2016; “Brussels Explosions: What we Know about Airport and Metro Attacks.” 9 April 2016,

<bbc.com/news/world-europe-35869985>, retrieved on 1 July 2016. 5 “Refugee crisis in Europe” <ec.europa.eu/echo/refugee-crisis_en>, retrieved on 11 July 2016.


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Nevertheless, dura lex, sed lex, this also applies to the national authorities of the Member

States. 7 The Common European Asylum System (CEAS) is there, and for good reason.

Evidently, not “every asylum seeker with a beard is a terrorist”, and to state that hundreds of

people everyday risk their lives and the lives of their family members to board a boat – that has

a high risk of sinking – only “to abuse the EU’s social system” are views I do not wish to

believe in. This research was conducted for the purpose of legal protection, to ensure the

protection of vulnerable groups such as asylum seekers, and to protect the effectiveness of

human rights protection.8 In my opinion, these turbulent times require for the effectiveness of

EU law, legal certainty, security and lest we forget: humanity.

To reach the conclusion that the current Article 23(1) PD does not properly respect the rights of

asylum applicants, a thorough examination will be conducted. The central research question of

his thesis is phrased as follows:

“Is the restriction in Article 23(1) of the Procedures Directive 2013 consistent with the fundamental

right to an effective remedy?”

This disintegrates in the following sub-questions:

- “What is the right to an effective remedy?”

- “Which procedural rights, deriving from the right to an effective remedy, are relevant for the

research of Article 23(1) Procedures Directive?”

- “Does the margin of discretion left to the MS in Article 23(1) PD, contradict the primary aim of

the Procedures Directive?”

- “What are the legal consequences for the right to an effective remedy if effective judicial

protection in national asylum procedures fail?”

The right to an effective remedy is very comprehensive, therefore, it is necessary to research its

meaning in the context of Article 23(1) PD. From this research, affiliated rights to the right to an

effective remedy will emerge, which will serve as a compliance test to assess the legality of

Article 23(1) PD. Wherein the case law of the ECtHR and the CJEU, are of great importance.

6 Following the events in the UK in June 2016 - the so-called ‘Brexit-referendum’ – where roughly 52% of the UK

voters indicated to prefer to withdraw membership from the EU, it is expected that the UK will invoke the Article

50 procedure (TEU) which will result the UK’s exit from the EU. One of the major campaign points of the ‘leave

EU’-side or the ‘Brexiteers’ was on immigration, and the desire to ‘take asylum- related matters back into their

own hands’. 7 ‘The law is hard, but it is the law’. 8 Asylum seekers are considered a ‘vulnerable group’; ECtHR: M.S.S. v. Belgium and Greece (no. 30696/09), 21

January 2011, para. 251.


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Subsequently, the Common European Asylum system will be elaborated upon with a focus on

the Procedures Directive and specifically on Article 23(1) and the restriction based on national

security. Substantial analysis of Article 23(1) PD will show that the right to an effective remedy

is not properly ensured and will have impact on the effectiveness and coherence in fundamental

rights protection.


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PART I –Preliminary issues: legal context effective remedy and the recast Procedures Directive 2013

2. The fundamental right to an effective remedy

The right to an effective remedy is particularly relevant in the context of standards for asylum

procedures and despite the fact that this fundamental right is enshrined in international,

European and EU legislation, a detailed description is lacking. This is problematic in the

context of the Common European Asylum System, where the main purpose is to set common

standards and raise the effectiveness throughout the Union. The interpretation of the EU right

to an effective remedy is inspired by international law, which makes the ECHR and the case

law of the ECtHR concerning procedural rights for asylum applicants very important.

This research contests that Article 23(1) PD on the scope of legal assistance and representation,

properly guarantees effective fundamental rights protection. The purpose of an appeal or

judicial review is to control the legality of the decision. It is a necessity to have effective legal

representation and access to the documentation the primary decision is based on.

This chapter aims to set a clear exposition of the right to an effective remedy in the context of

Article 23(1) PD, and to provide for a benchmark for the relevant procedural rights and

principles arising from the fundamental right to an effective remedy. To that regard, first the

legal basis and general content of the right to an effective remedy will be set out. Subsequently

there will be a closer look at the ratio between the two legal documents and thereto

corresponding courts. Finally, the scope of application necessary to assess Article 23(1) PD

will be explained.

2.1. Substantive meaning of the right to an effective remedy

The right to an effective remedy can be found in Article 13 ECHR and in Article 47 EU Charter.

It is commonly known that the legal system of the EU and the provisions granted therein, will

have no purpose when these cannot be enforced in practice. Duly and fair procedures are a

minimum requirement to effectively carry out these rights.

An effective remedy in EU law means that there should be effective judicial protection against

decisions of the institutions of the Union and against decisions of MS’s national authorities. If

in this context an individual encounters a problem during the exercise of his rights, or if a

violation occurs, both international law and EU law require that an effective remedy must be

available.9

9 The CJEU first used the principle of effective judicial protection in Van Colson and Kamann, where was

examined if a specific remedy was adequate. CJEU: Case C-14/83 Sabine van Colson and Elisabeth Kamann v.

Land Nordrhein-Westfalen [1984] EU:C:1984:153 para. 23.


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2.1.1. General content of the right to an effective remedy in the ECHR and the EU Charter

The right to an effective remedy is an essential element of the ‘rule of law’ within the European

Union.

The first paragraph of Article 47 EU Charter reads:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to

an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

This is based on Article 13 ECHR, which states:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective

remedy before a national authority not withstanding that the violation has been committed by persons

acting in an official capacity”

The reference to the term ‘everyone’ in both articles specifies the scope of these articles. The

right to an effective remedy is guaranteed for everyone within the jurisdiction of the HCP or the

jurisdiction of an EU MS. This means that everyone has the right to effective judicial protection,

irrespective of nationality or legal status. The protection of the right to an effective remedy is

considered more extensive in the EU Charter. This is evidenced by the designated authority

used in Article 47 EU Charter. The EU Charter states that there must be an effective remedy

before a tribunal, whereas the ECHR mentions before a national authority. The CJEU upheld

this specific right as a general principle of EU law.10 According to the CJEU, this general

principle of EU law applies to the institutions of the Union and to the MS when they are

implementing EU law.11

The second paragraph of Article 47 EU Charter reads:

“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and

impartial tribunal previously established by law. Everyone shall have the possibility of being advised,

defended and represented.”

10 CJEU: Case C-222/84 Johnston v Chief Constable RUC [1986] EU:C:1986:206, para. 18. See also: Case C-

97/91 Oleificio Borelli SpA v Commission of the European Communities [1992] EU:C:1992:491 and Case C-

222/86 Union nationale des entraîneurs et cadres techniques professionels du football (Unectef) v. Georges

Heylens and Others [1987] EU:C:1987:442 11 Article 51(1) EU Charter.


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This corresponds as well to the ECHR, however, to a different provision. It refers to Article 6(1)

ECHR, the right to a fair trial. The EU is based on the rule of law.12 Besides the scope of

application, the guarantees in both articles are similar.13

The third and last paragraph of Article 47 EU Charter is on legal aid.

“Legal aid shall be made available to those who lack sufficient resources in so far as such aid is

necessary to ensure effective access to justice.”

In the absence of an article on legal aid in the Convention stated on the notion of legal aid, the

ECtHR held that provision to legal aid should be made available, as otherwise the right to an

effective remedy is made impossible.14 In the EU there is a system of legal assistance available

for cases before the CJEU.15

2.1.2. The right to an effective remedy in the ECHR, the EU Charter and national legislation

For this research it is important to note that asylum law is a very clear topic of overlapping

jurisdiction. To that extend it is important to elaborate on the ratio between these legal systems.

The ECHR is being applied by the European Court of Human Rights based in Strasbourg,

where its main task is to ensure that States respect the rights and guarantees set out in the

Convention.16 In the context of the Common European Asylum System the ECHR is of special

significance.17 Moreover, the ECHR is used as a basis for many provisions entailed in the

CEAS-framework.18 Subsequently, the EU Charter of Fundamental Rights.19 The EU Charter is,

amongst other EU legislation, interpreted and applied by the European Court of Justice in

Luxembourg. What follows is that there are two courts concerned with the protection of

fundamental rights within the EU.20

12 CJEU: Case C-294/83 Les Verts v. European Parliament [1986] 13 Official Journal of the European Union C 303/17 – 14 December 2007 14 ECtHR: Airey v. Ireland (no. 6289/73) 9 October 1979. 15 The exact system on legal aid will not be elaborated upon, whereas it is not necessary for this research. 16 The ECHR consist of civil and political rights, it does not contain a specific provision on asylum. In that context,

the non-derogable Article 3 ECHR reads: “No one shall be subjected to torture or to inhuman or degrading

treatment or punishment”. Which include the prohibition of refoulement. Which means that a state may not expel

someone to a situation in which he or she will be subject to inhuman treatment. See e.g. ECtHR: Soering v. The

United Kingdom (no. 14038/88), 07 July 1989; Siliadin v. France (no. 73316/01), 26 October 2005. 17 Article 78 TfEU. 18 See chapter 3 of this research. 19 The EU Charter became legally binding since the entry into force of the Treaty of Lisbon in December 2009. 20 The CJEU only has jurisdiction within the territory of the EU, where the ECtHR has jurisdiction in all 47 states

party to the ECHR. In contrast, the CJEU is not solely concerned with fundamental rights protection, but on all

areas covered by EU law, where the ECtHR is only competent to rule on rights and related matters which are

covered by the Convention.


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It should be borne in mind, that in addition to the ECHR and the EU Charter, there is a third

level of fundamental rights protection within the EU – which is in theory the most important

one for individuals – the judicial protection on national level. Both the ECHR and the Charter

acknowledge the principle of subsidiarity. Article 35(1) ECHR entails a precondition for

admissibility:

“The Court may only deal with the matter after all domestic remedies have been exhausted”.

Subsequent, both the Preamble of the EU Charter as well as Article 6(1) TEU demand that:

“The provisions of the Charter shall not extend in any way the competences of the Union as defined in

the Treaties.”

The ECtHR accommodates the autonomy of the European Union’s legal order. However, when

MS act under EU law, their responsibilities under the ECHR remain in all instances where they

act by reference to their own MS discretion.21 Even though the main aim of both the ECHR and

the EU Charter is to raise the level of judicial protection and ensuring the effectiveness of

fundamental rights; the national level of fundamental rights protection is always first in place to

ensure the protection and observance of fundamental rights for individuals.22 The result: a

complex legal system.23

2.2. Scope of application of the right to an effective remedy

Article 47 EU Charter applies to institutions of the Union same to the institutions of the MS

when EU law is implemented in national legislation, and does so for all rights guaranteed by

EU law. The CJEU stated clearly that the applicability of EU law requires applicability of the

fundamental rights as assured by the Charter. 24 This means that a person may rely on the right

to an effective remedy with the intent to protecting the substantive rights which EU law confers

on him.25

21 ECtHR: Bosphorus Hava Yollari Turizm Ve Ticaret Sirketi v. Ireland (no. 45036/98), 30 June 2005, paras. 155-

156. This will be further elaborated upon in chapter 5. 22 Principle of subsidiarity 23 This will be further elaborated in chapter 5 of this research. 24 The CJEU elaborated upon the notion of ’implementing EU law’ in C-617/10 Åklagaren v. Hans Åkerberg

Fransson [2013] EU:C:2013:105 in para. 21: “Since the fundamental rights guaranteed by the Charter must

therefore be complied with where national legislation falls within the scope of Union law, situations cannot exist

which are covered in that way by Union law without those fundamental rights being applicable.” 25 Lenaerts, “Effective Judicial Protection in the EU”, Essay written for the European Commission’s Event:

Assises de la Justice, (2013), on 26 May 2016 retrieved from: <ec.europa.eu/justice/events/assises-justice-

2013/files/interventions/koenlenarts.pdf>


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The right to an effective remedy imposes a number of obligations on MS. It requires an

effective remedy or a combination of remedies, not only in theory but also in practice.26 The

threshold should not be unreasonably high and has to effectively comply with procedural

requirements.27 The CJEU stated in Kadi and Al Barakat:

According to settled case-law, the principle of effective judicial protection is a general principle of

Community law stemming from the constitutional traditions common to the Member States, which has

been enshrined in Articles 6 and 13 of the ECHR, this principle having furthermore been reaffirmed by

Article 47 of the Charter of fundamental rights of the European Union”28

The procedural guarantees that arise from EU right to an effective remedy are relevant in the

context of the CEAS. Article 47 EU Charter includes and refers implicitly to other fundamental

rights and general principles of EU law.

In the context of Article 23(1) PD, the following rights and principles emerge: the right to a fair

trial, the right to good administration, the principle of equality of arms, the principle of

adversarial proceedings and last but not least the obligation for national authorities to give

reasons for their decisions.29 It follows from case law that these rights and principles relate,

overlap and complement each other in the context of Article 47 EU Charter. The above-

mentioned rights and principles will be addressed in short in the next subparagraphs.

2.2.1. The right to a fair trial

The right to a fair trial arises in Article 47 (2) EU Charter. Where it corresponds to Article 6(1)

of the ECHR. The main difference between these articles is, that the EU Charter is not limited

to disputes relating to civil law rights and obligations. The most important aspects are: a fair

and public hearing; within a reasonable time and an impartial tribunal which is established by

26 From the case law it is apparent that the underlying Convention article affects the manner in which the Court

assesses the right to an effective remedy. ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 157.

E.g. see ECtHR: Ílhan v. Turkey (no. 22277/93), 27 June 2000, para. 97. “the remedy required by Article 13 must

be ‘effective’ in practice as well as in law..” The CJEU repeated the ECtHR in Van Colson and Kamann, by

stating that: “it does entail that the sanction be such as to guarantee real and effective judicial protection” CJEU:

Case C-14/83 Sabine van Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen [1984] EU:C:1984:153 para.

23. 27 This was reaffirmed and further extended by the CJEU in Case C-222/84 Marguerite Johnston v. Chief

Constable of the Royal Ulster Constabulary [1986] EU:C:1986:206, paras. 17-18; Case C-222/86 Union nationale

des entraîneurs et cadres techniques professionels du football (Unectef) v. Georges Heylens and Others [1987]

EU:C:1987:442, para. 14. 28 CJEU: C-402/05 Kadi and Al Barakat International Foundation v. Council and the Commission [2008]

EU:C:2008:461, para.335. 29 These rights and principles emerge from case law of the CJEU and ECtHR. See for instance: CJEU: Case T-

228/02 Organisation des Modjahedines du peuple d’Iran v. Council [2006], “The safeguarding of the right to a fair

hearing helps to ensure that the right to effective judicial protection is exercised properly. There is a close link

between the right to an effective remedy and the obligation to state reasons (…)”


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law. The press and public may be excluded from part of the trial if this is in the public interest,

where national security may be one of such reasons.30

2.2.2. The right to good administration

This right is enshrined in Article 41 EU Charter. This article states that a person has the right to

have his affairs handled impartially, fairly and within a reasonable time. Important to note in

this context is the acknowledgement of procedural rights as fundamental rights.31 The lack of

procedural safeguards could lead to violations of the right to asylum, and in specific the

associated right of non-refoulement.

Important guarantees flowing from this right: the principle of adversarial proceedings and the

obligation to state reasons.

“(…) the right to be heard, before any individual measure which would affect him or her adversely is

taken; the right of every person to have access to his or her file, while respecting the legitimate interests

of confidentiality (…); the obligation of the administration to give reasons for its decisions.”32

2.2.3. The principle of equality of arms

This is implicitly enshrined in Article 48(2) EU Charter, which is the same as Article 6(3)

ECHR, which list the minimum rights a person has when charged with a criminal offence.33 It

was already mentioned that the EU Charter has a broader scope than the ECHR, so this does

not only apply to criminal charges. Minimum rights are:

“(…) (b) to have adequate time and facilities for the preparation of his defence; (…) (d) to examine or

have examined witnesses against him and to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him (…)”34

In chapter 4, which entails the substantial research of Article 23(1) PD, these rights and

principles will return as a benchmark for the review and compliance of Article 23(1) PD.

30 Article 47(2) EU Charter and Article 6(1) ECHR; see chapter 4 of this research. 31 E.g. the right to an effective remedy and the right to good administration. 32 Article 41(2) EU Charter. 33 ‘In accordance with Article 52(3), article 48(2) has the same meaning and scope as the rights guaranteed by the

ECHR’. Official Journal of the European Union C-303/17, 14 December 2007: 34 Article 6(3) ECHR.


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3. The EU approach to asylum procedures

Asylum is a fundamental human right, acknowledged in the Universal Declaration of Human

Rights, and confirmed by subsequent legal documents such as the EU Charter of Fundamental

Rights.35 Moreover, asylum law has become an integral part of EU law. The right to an

effective remedy is very important when it comes to asylum procedures. An asylum applicant,

has limited rights in a Member State, and being a member of a vulnerable group, the applicant

should at least be able to have an effective remedy against a decision which may have far-

reaching consequences. This chapter will show that the mere listing of the right to an effective

remedy in Chapter V of the recast Procedures Directive, does not comply.36

In order to apply the right to an effective remedy on Article 23(1) PD, this chapter will start

with an explanation of the Common European Asylum System (CEAS). It will elaborate short

on the first and second phase of the CEAS, which is relevant for the explanation of the recast

Procedures Directive and its primary aim. In view of these introductory elements, I will analyse

how the EU has conceptualised the right to an effective remedy in the 2013 Procedures

Directive. Moreover, this chapter will show that the right to an effective remedy in principle

has been included in the recast Procedures Directive. Finally, it will conclude, that the mere

listing of this fundamental right in Chapter V of the Procedures Directive is insufficient in

terms of common standards and legal protection in the EU.37

3.1. The CEAS

Asylum has become an integral part of EU law. Asylum in itself exists since living memory,

however the asylum regime as we know it, finds its origin in the aftermath of the two world

wars in the first half of the twentieth century. As a result, and the realisation that history should

not repeat itself again, the right to asylum was included in several international treaties.38

35 Article 14(1) UDHR: UN General Assembly, Universal Declaration of Human Rights, 1948, represents the first

worldwide display of what the right to asylum and other joint rights ought to be and has been proclaimed in its

Preamble, as the ‘highest aspiration of the common people’. Furthermore, the right to asylum can be found, i.e. in

Article 18 EU Charter: “The right to asylum shall be guaranteed with due respect for the rules of the RC and in

accordance with the TEU and TFEU”, Charter of Fundamental Rights of the European Union, 2012. 36 As delineated in chapter two. 37 Article 46 PD. 38 Article 1A §2 RC guides (inter)national legislation and defines a refugee as a person: “owing to well-founded

fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or

political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail

himself of the protection of that country; or who, not having a nationality and being outside the country of his

former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations.


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The EU developed in 65 years to the economic and political union that it is today with a total of

28 Member States.39 The combined policies established a single market aimed to ensure the

free movement of services, goods, capital and people. Furthermore, the EU shall provide for an

area of freedom security and justice, in which the free movement of persons is ensured

consistent with appropriate methods regarding the external borders, immigration and asylum.40

From the latter, the Common European Asylum System emerged.41

3.1.1. Harmonisation of asylum legislation

From practice, it became apparent that the different measures that were applied by the EU MS

with regard to asylum procedures, resulted in a variety of ways concerning the protection of

asylum seekers. As a consequence, a race to the bottom was visible in procedural standards,

whether or not under pressure of national politics and the public. Rationally, this trend is very

damaging to the people in actual need of international protection, for human rights protection in

general, and as a consequence it deteriorates the interrelationships of MS.42 In this context, the

need arose to create a shared system within the EU.43 The CEAS is based on the full and

inclusive application of the 1951 Refugee Convention, therefore affirming the principle of non-

refoulement and ensuring that no-one should be sent back to persecution.44 The framework

ought to create an EU-wide area of protection on the subject of asylum and should respond to

the prevention of divergent regulations, preventing misinterpretation, equally bear the burden,

and should increase effective protection.45

39 Following the events in the United Kingdom in June 2016 - the so-called ‘Brexit-referendum’, where roughly 52%

of the UK voters indicated to prefer to withdraw the UK’s membership from the EU, it is expected that the UK

will invoke the Article 50 procedure (TEU) which will result in the exit of the UK from the EU in 2017. 40 Article 3(2) TEU; The entry into force of the Treaty of Amsterdam shifted the legislative powers with regard to

asylum and immigration to the European Union; Furthermore, Article 67(1)(2) TfEU states: “The Union shall

ensure the absence of internal border controls for persons and shall frame a common policy on asylum,

immigration and external border control, based on solidarity between Member States, which is fair towards third-

country nationals.”; 41 As a result of the Tampere Council Conclusions of 1999, in which the establishment of the AFSJ and thereto

related guidelines were elaborated. This is reflected in; Article 78 TfEU: “The Union shall develop a common

policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any

third-country national requiring international protection and ensuring compliance with the principle of non-

refoulement. This policy must be in accordance with the Geneva Refugee Convention of 28 July 1951”. 42 Lower procedural standards in such a way that one MS, compared to another MS is less attractive for applicants

to submit an application for a refugee status or subsidiary protection. MS with a more lenient policy, will suffer

disadvantage. 43 Costello and Hancox, “The Recast Asylum Procedures Directive 2013/32/EU: Caught between the Stereotypes

of the Abusive Asylum Seeker and the Vulnerable Refugee”, Reforming in the Common European Asylum System:

The New European Refugee Law, p.1. 44 Article 78 TfEU. 45 Council of the European Union Presidency Conclusions Tampere 1999, p 14.


18

3.1.2. The First and Second phase of the CEAS

The CEAS framework has already brought forth two phases. The first phase comprised the

‘harmonisation of internal legislation on minimum standards’.46 This is important, since the

first phase faced a lot of criticism among scholars, naming the framework: dysfunctional,

failing, and pointed out that the CEAS was harmfully affecting both asylum seekers and the

goal of burden sharing.47 The refugee crisis weighs heavily on the MS, and it appears that when

the chips are down, the main objectives are not achieved. After careful evaluation, which

showed, in short, that the CEAS was lacking effectiveness, the first phase legal documents

were revised. 48 Consequently, the CEAS has entered its second phase.49

Part of the second phase CEAS framework is the 2013 recast Procedures Directive, which

should ensure that there are common procedures throughout the EU.50 By 21 July 2015 all the

provisions from this directive must have been implemented in national legislation. The next

section will elaborate on the recast Procedures Directive 2013.

3.2. EU Procedures Directive (2013/32/EU)

It is widely known that EU law will be unsatisfactory if the rights and procedures cannot be

enforced by people in practice. Duly and fair procedures are a precondition for the effective

exercise of rights. Therefore, the lack of procedural guarantees will undermine the rights

asylum applicants have under EU law.

A common policy on asylum is an essential part of the Union’s objective to establish an area of

freedom, security and justice, therefore, the main aim of the PD 2013 is to further develop the

standards for asylum procedures within the MS.51 The recast Procedures Directive is aimed to

set out instructions on the complete process of claiming asylum in a MS. To this extent, the PD

46 Qualification Directive 2011/95/EU (application 21 December 2013); The Dublin III Regulation 604/2013

(application 1 January 2014); The Eurodac Regulation 603/2014 (application 20 July 2015); The Reception

Conditions Directive 2013/33/EU (application 20 July 2015) and the Asylum Procedures Directive 2013/32/EU

(application 20 July 2015). 47 Thielemann, “The Future of the Common European Asylum System: in Need of a More Comprehensive

Burden-Sharing Approach.”, European Policy Analysis 1 (2008), Swedish Institute for European Policy Studies, p.

5; Katsiaficas, “The Common European Asylum System as a Protection Tool: Has the European Union lived up to

its promises?”, EU Migration Policy Working Paper, No. 7 (2014), p. 5. 48 Toscano, “The Second Phase of the Common European Asylum System: A Step Forward in the Protection of

Asylum Seekers?”, IES Working Paper 7/2013 (2013), Vrije Universiteit Brussel. p. 10-12; A proper level of

harmonisation does not per se result in a proper level of fundamental rights protection. To this extend, the ECtHR,

more than once, given MS a slap on the wrist for violating fundamental rights even when the violations were in

line with the standards set in a provision of the CEAS framework. See for example: ECtHR: Hirsi Jamaa and

others v. Italy (no. 27765/09), 23 February 2012. 49 For a more extensive reading on this topic see: Costello and Hancox, 2015, Thieleman and Armstrong, 2012. 50 This research will not go into further detail on the other documents/progression of the CEAS, it will exclusively

focus on the recast PD 2013. 51 Preamble (2), (4) and (12) PD 2013.


19

deals with questions about: how the applicant should lodge an application, how the designated

national authority should examine an application, and what legal representation should be given

to an applicant. At last, the provisions in the PD must be implemented into national legislation

in the EU MS.

3.3. Article 23(1) Procedures Directive: the scope of legal representation

Article 23(1) PD is on the scope of the right to legal assistance and legal representation of

applicants for international protection and is located in Chapter II of the Procedures Directive.

Chapter II of the PD is on the basic principles and guarantees in asylum procedures.52 Article

23(1) specifically deals with the access to information on which the decision in first instance

was made. The first sentence of Article 23(1) PD states:

“Member States shall ensure that a legal adviser or other counsellor admitted or permitted as such under

national law, who assists or represents an applicant under the terms of national law, shall enjoy access to

the information in the applicant’s file upon the basis of which a decision is or will be made.”

This is in line with the requirement of Article 12(1)(d) PD.53 Article 23(1) also strongly

correlates with Article 10(3)(d) PD, which is on the use of external advisors and experts.54

Up to this point it is clear from the above listed provisions from the PD that if an applicant

receives a negative decision, he has the option to appeal this decision, with legal assistance and

representation and both the applicant and his representative must be granted access to the

information that formed the basis for taking the decision.

Article 23(1) PD continues in the second sentence with:

“Member States may make an exception where disclosure of information or sources would jeopardise

national security, the security of the organisations or person(s) providing the information or the security

of the person(s) to whom the information relates or where the investigative interests relating to the

examination of applications for international protection by the competent authorities of the Member

States or the international relations of the Member States would be compromised.”

52 Important for further consideration is that Article 20(1) PD, ensures free legal assistance and representation in

the appeals phase of an asylum procedure. This legal assistance shall at least include that the required procedural

documents and participation is prepared on behalf of the applicant. 53 Article 12(1)(d): “if applicable, their legal advisers or other counsellors in accordance with Article 23(1), shall

have access to the information referred to in Article 10(3)(d), where determining authority has taken that

information into consideration for the purpose of taking a decision on their application.” 54 Article 10(3)(d) PD: “The personnel examining applications and taking decisions have the possibility to seek

advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, child-related or

gender issues.”


20

The second sentence of Article 23(1) PD contains a restriction on the first sentence of the

Article.55 If the disclosure of the information on which a decision is made could endanger

national security and related security motives, the MS may differ in their national procedural

law of the basic rule to access to information. The third sentence of Article 23(1) continues:

“In such cases, Member States shall: (a) Make access to such information or sources available to the

authorities referred to in Chapter V; and (b) Establish in national law procedures guaranteeing that the

applicant’s rights of defence are respected. In respect of point (b), Member States may, in particular,

grant access to such information or sources to a legal adviser or other counsellor who has undergone a

security check, insofar as the information is relevant for examining the application or for taking a

decision to withdraw international protection.”

The third sentence elaborates on the restriction in the second sentence, stating that the

information – when not disclosed to the applicant and his representative – should be made

available to the authorities in Chapter V of the PD. Chapter V is on the right to an effective

remedy, applied specifically on the Procedures Directive, and states that an applicant shall have

one before a national MS court or tribunal and this should be respected by MS when

implementing the Procedures Directive in national law.56

Conclusively, the second phase of the CEAS increased guarantees concerning asylum

procedures. This is reflected in the fact that the rights of asylum seekers in national procedures,

fall under the scope of EU law, and that these should be ‘common’ throughout the EU. Article

23(1) and Chapter V of the PD, explicitly identify the right to an effective remedy.

Consequently, it should be respected by the national legislator when implementing the

Procedures Directive.57 Implicitly this means that the PD limits the procedural autonomy that

MS have to this extent.58 However the wording of the second sentence of Article 23(1) PD

appears to be arguably vague and therefore contain the possibility for exceptions and

undesirable differences.

55 And thus Articles 10(3)(d) and 12(1)(d) PD. 56 Chapter V - Article 46(1) PD 2013. This will be further elaborated in the next chapter. 57 Furthermore, the right to an effective remedy is mentioned in the Preamble recitals 25, 30 and 50 PD. 58 See chapter 2 of this research.


21

PART II – Key issue: Substantive approach; the scope of legal assistance and the right to an effective remedy

4. Substantial approach of Article 23(1) PD: restricting fundamental rights

This section will entail a human rights-based approach of Article 23(1) PD, by applying the

benchmark as developed in chapter 2 of this research. This will reveal that the right to an

effective remedy is not guaranteed, because the derivative rights are not well enough protected.

The restriction in the second sentence of Article 23(1) PD leaves too much margin of discretion

to the MS. Therefore, the primary aim of the Procedures Directive is contradicted. First, this

section will elaborate on restricting fundamental rights. Subsequently, the restriction that can be

found in Article 23(1) PD will be further explained.

4.1. Restricting fundamental rights of asylum applicants by Member States

Not all fundamental rights are granted unlimited protection, therefore, fundamental rights can

be restricted.59 This follows from, for instance, Article 52 of the Charter and is confirmed in

case law of both the ECtHR and the CJEU. Restrictions can be allowed if these correspond to

objectives of general interest.60 Some matters remain under MS autonomy. Legislation and case

law clarify that this margin of discretion is not without any limitations. Both the CJEU as the

ECtHR are clear on this notion in their case law.

“It is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be

restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by

the measure in question and that they do not involve, in the light of the objectives pursued, a

disproportionate and intolerable interference which impairs the very substance of the rights

guaranteed.”61

The first sentence of Article 23(1) PD entails a provision to ensure that the legal applicants and

their legal representatives will have access to the information in the applicant’s file upon the

basis of which a decision is or will be made. Logically, this is to ensure that the legal

representative and the applicant have all information upon which the decision was made and to

be able to reply and defend against, or at least comment on any information that is relevant for

the decision to obtain international protection.

The second sentence of Article 23(1) PD states that an exception can be made by a Member

State in their national procedural law, to the disclosure of information to applicants and their

59 Some fundamental rights are absolute, e.g. Article 3 ECHR. 60 This is reflected in Article 4(2) TEU and Article 73 TfEU. 61 CJEU: Case C-418/11 Texdata Software GmbH [2013] EU:C:2013:105, para. 84; Joined cases C-317/08 to C-

320/08 Alissini and Others [2010] EU:C :2010:146, para. 63 and Case C-28/05 Dokter and Others [2006]

EU:C:2006:408 para. 75.


22

legal representative where the disclosure could jeopardise national security and the Member

State can formulate this exception for national security reasons. This is a restriction of the

applicant and his legal representative’s right to access to the file as listed in Article 23(1) first

sentence in conjunction with Article 10(3)(d) PD, as elaborated upon in chapter 5.1.

The protection of national security justifies in principle that information shall not be disclosed

to the applicant and his legal representative62. On the basis of case law and the right to an

effective remedy, this provision must be examined and interpreted in the light of the rights the

applicant has. On the opposite side, from the MS point of view, the protection of national

security contributes to the safekeeping of the rights and freedoms of others.63 Therefore, the

rights of the applicant must be balanced against the interest of the State. When assessing if a

procedure is considered fair, from case law, three basic requirements emerge. First, the

balancing of interests, as explained above. Second, in each case, the overall fairness of the

procedure should be assessed. Third, the context ought to effect the level of protection offered

in procedures.64 In asylum cases, and thus the assessment of the level of protection offered in

procedural rights on this matter, the fact that there could be a risk of refoulement, it should

always be assumed that a high level of procedural protection is required.

4.2. Compliance test of Article 23(1) PD

The main purpose of the right to an effective remedy is to ensure and to increase judicial

protection. As explained in chapter 2, the right to an effective remedy applies to institutions of

the Union and to the MS when they are implementing EU law.65

4.2.1. The right to a fair trial

The Procedures Directive is in scope of EU law, therefore, Article 23(1) must comply with the

right to a fair trial.66 The most important aspect for the present research is that there has to be a

fair and public hearing, which has to be ‘practical and effective’.67 The fact that article 23(1)

PD in theory grants access to the national court to appeal the decision, does not make this

62 The principles of necessity and proportionality are at the core of the decision in such matters, otherwise it would

lead to arbitrary decision-making. 63 In a recent case before the CJEU the Court stated that Article 6 EU Charter prescribes that everyone has the

right to security; CJEU: Case C-601/15 J.N. v. Staatssecretaris van Justitie [2016] EU:C:2016:84.; see also:

ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 151; and Ahani v. Canada (no.1051/2002), 15

June 2004. 64 Reneman, EU Asylum Procedures and the Right to an Effective Remedy, BoxPress 2012, p.108. 65 This is also enshrined in Article 51(1) EU Charter. 66 Article 47(2) EU Charter and Article 6(1) ECHR; see chapter 2.3 for more extensive reading. 67 As elaborated upon in Chapter 2.2.2.; see further ‘Guide on Article 6 of the Convention – Right to a fair trial’

and ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 157 as well as Ílhan v. Turkey (no. 22277/93),

27 June 2000, para. 97.


23

provision practical and effective. The fairness of the procedure before a court can be disputed if

information is not fully enclosed to the national court and to the applicant and his legal

representative. Information that is kept away, whilst the decision is based on this, cannot be

unified under ‘fairness’. However, a recent ruling of the ECtHR has permitted the use of secret

hearings or closed material procedures in certain circumstances.68 Nevertheless, the Court does

not clarify, to what extent national security can outweigh and individual’s right to information.

Therefore, the mere fact that the non-disclosure of evidence to the national court could

influence that court’s decision, is a serious breach of the right to a fair trial and the principle of

open justice. The effectiveness of assessment by the court whether a decision was taken

correctly is invalidated by this restriction.

4.2.2. The right to good administration

As mentioned in chapter 2, procedural rights are recognised as fundamental rights. Where the

absence of procedural safeguards might lead to violations of the right to asylum. Two important

guarantees from Article 41 EU Charter that this section will focus on are the principle of

adversarial proceedings and the obligation to state reasons.

First, adversarial proceedings. The ECtHR held in Göç v. Turkey that this procedural principle

is not considered an absolute principle, meaning that there could be legitimate aims to restrict

this procedural guarantee. However, the ECtHR stressed the importance of adversarial

proceedings in cases where the submissions were not communicated in advance to the parties,

depriving them of an opportunity to respond and react.69

The mere fact that not disclosing information on which a decision is based and if this could

lead to influencing the national court’s judgment on the appeal, is a far reaching limitation on

fundamental rights of the applicant.

Nevertheless, the ECtHR accepted that national security is subject to national discretion, what

could imply that not providing all information could be justified as long as the MS do not

exploit this discretion by putting in place sufficient guarantees to upkeep discretion and prevent

arbitrary measures. Thus, these guarantees should at least include a proportionality check. The

decision not to disclose information should be necessary to pursue this legitimate aim.

68 ECtHR: Sher and Other v. UK (no. 5201/11), 20 October 2015; What must be noted is that this ruling only

oversees the circumstances of this particular case and does not claim that closed material proceedings are justified

in all national security-concerned cases. 69 ECtHR: Göç v. Turkey (no.36590/97), 11 July 2002, para. 54: “(..) the opportunity for the parties to a civil or

criminal trial to have knowledge of and comment on all evidence adduced or observations filed, even by an

independent member of the national legal service, such as the Principal Public Prosecutor in the instant case, with

a view to influencing the court's decision.”


24

Therefore, the national court should have access to this hidden information, so it is up to the

court to decide whether or not the measure should be upheld for reasons of national security.

Subsequently a balance check must be performed.

Second, the obligation to state reasons. To effectively prepare a defence in appeal, it is of

indisputable importance that the applicant is informed of all reasons the decision is based on.

The CJEU explicated on effective judicial review that it must be able to extend to the

lawfulness of the reasons for the decision being challenged.70 This was endorsed by the CJEU

in Mahdi. In respect for the rights of the defence of applicants and for their right to an effective

remedy, the national authorities are bound to communicate to the applicant the grounds on

which the measure adversely is affecting the appeal in order to enable the applicant to exercise

his or her fundamental and procedural rights effectively and to enable further actions in

appeal.71 For example, that not only the authority who made the decision in the first place

communicate those reasons for reasons of correctness, but applicants for international

protection should have the opportunity to decide. This requires full knowledge of the facts so

they can consider whether there is any point in lodging an appeal before the national court.72 If

this is not done by the authorities either in the decision itself or in an ensuing statement on the

request of an applicant or his legal representative, not complying with this would breach the

applicants’ right to an effective remedy.

4.2.3. The principle of equality of arms

Same as the principle of adversarial proceedings, the ECtHR held in Kress, that the principle of

equality of arms is not an absolute principle.73 Therefore, there can be legitimate aims to

restrict this procedural guarantee. A similar proportionality requirement and balance check

should be conducted, as elaborated upon in the previous paragraph.

Since Article 23(1) PD contains a direct limitation on the right to an effective remedy of the

applicant, and taken into account that the Procedures Directive has to be implemented in

national legislation, the current phrasing of this specific provision leaves room for a broad

interpretation and implementation. This will have serious consequences for applicants who for

70 CJEU: Case C-222/86 Union nationale des entraîneurs et cadres techniques professionels du football (Unectef)

v. Georges Heylens and Others [1987] EU:C:1987:442. 71 CJEU: C-146/14 Basir Mohamed Ali Mahdi [2014] EU:C:2014:1320, para. 45; see to that effect C-402/05 Kadi

and Al Barakat International Foundation v. Council and the Commission [2008] EU:C:2008:461, para. 337. 72 CJEU: C-146/14 Basir Mohamed Ali Mahdi [2014] EU:C:2014:1320, para. 45 and Case C-182/10 Solvay and

Others [2012] EU:C:2012:82, para.59. 73 ECtHR: Kress v. France (no.39594/98), 7 June 2001, para. 65: “The circumstances in which the proceedings

took place must be examined by the national, and in particular whether the proceedings were adversarial and

complied with the equality of arms principle”


25

instance face a serious risk of refoulement.74 EU institutions and MS are bound by the Charter

when implementing EU law, and is applicable for all rights guaranteed. Fundamental rights do

not extend the competence of the EU institutions.75 National effective remedies must be in

place so the Court of Justice and the ECtHR can upkeep its supervisory role.76

4.3. Obligation to national legislator concerning safeguarding rights of applicant

The restriction in Article 23(1) PD is liable to harm the applicant’s right to an effective remedy.

It is apparent from the third sentence of Article 23(1) that the EU legislator has foreseen this as

a possible issue contradicting fundamental rights.77 The last part of Article 23(1) PD therefore

states:

“Establish in national law procedures guaranteeing that the applicant’s rights of defence are respected.”

If the national legislator makes use of the restriction in the second sentence, the right to an

effective remedy should be guaranteed. In addition, the EU legislator has provided for ‘an

example’ of a procedure how to respect the defence of the applicant at the end of Article 23(1)

PD. However, since the EU legislator used the word “may”; MS can choose not to implement

such procedure and apply their own upon which in their view applicant’s rights of defence are

respected. In my opinion and as demonstrated in the previous paragraph, the mere reference to

respecting the applicant’s rights of defence is not sufficient. The right to a fair trial, and the

principle of adversarial proceedings all bring together at least the obligation that the national

court must have access to all the non-disclosed information and sources to make a thorough

decision.78 In practice it should at least be made sure that there will be a formal balancing of

interests, by an independent court or tribunal. Not just conducted by the authorities who made

the decision in the first place. The interests that the national authorities have for (national)

security reasons and the related security motives, will then be weighed against the interests of

the applicant and his (fundamental) rights protection.

74 See chapter 2.1 and see further ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 155. 75 Principle of subsidiarity. 76 See chapter 2 of this research. 77 This was part of the criticism that was put forward on the ‘first phase CEAS’ and on the previous Procedures

Directive (2005/85/EC). 78 Taking into consideration that there has to be a necessity and proportionality check, and that this should be

transparent to prevent arbitrary proceedings.


26

Furthermore, in such cases, there must be offered additional procedural guarantees to the

applicant and his legal representative. In my opinion the balancing of interests by the national

court is not enough. This follows from the assessment of adversarial procedures.79

Currently, Article 23(1) PD lacks clear direction on how MS should establish national

procedures that fully respect the applicant’s rights of defence.

Conclusively, it is demonstrated that Article 23(1) PD does not entail the proper safeguards to

protect an applicant’s right to an effective remedy. The right to an effective remedy will be

overshadowed by national procedural autonomy and the margin of discretion since national

security remains the sole responsibility of the Member States.

79 For instance, this can be reached through additional procedural guarantees, such as compensation safeguards for

the applicant and weight of confidential evidence in the decision made by the national court.


27

5. The impact of Member States discretion: ineffective fundamental rights protection

The restriction in Article 23(1) PD will have a far-reaching impact on national asylum

procedures. Moreover, the common standards in asylum procedures will not be achieved.

Therefore, too much MS discretion will harm the right to an effective remedy for asylum

applicants. In particular, this will have consequences concerning the fundamental rights

protection of the right to an effective remedy in general. For instance, too much MS discretion

will affect the effectiveness of EU law. In addition, divergent interpretation will threaten the

coherence of fundamental rights protection.

5.1. Procedural autonomy v. the principle of effectiveness

The race to the bottom in procedural standards is ought to be prevented by ‘ensuring fair and

common procedures’.80 The CEAS is based on the principle of subsidiarity; where the national

system is first in place to ensure that the interpretation and protection of the Treaties and of

human rights is observed.81 With regard to the Procedures Directive, MS enjoy discretion with

regard to the implementation of the Directive in the light of the particular features of national

law.82 Therefore, the restriction found in Article 23(1) PD leaves much room for divergent

interpretation in the MS national procedures since the third sentence explicitly leaves the

protection of (fundamental) rights of the applicant to the national legislator, with the adverse

effect that the right to an effective remedy of an applicant might not be properly protected in

national law.

The well-known principle of effectiveness requires that the exercise of rights individuals have

under EU law, should be effective in theory and in practice83 and not be rendered virtually

impossible.84 State practice in the field of migration will only develop further, and will have its

impact on the ‘common asylum procedures’. Where state practice is influenced by (national)

policies and politics, it is in the line of expectation that a substantial margin of discretion will

lead to the opposite of what the recast Procedures Directive 2013 primary aims for. 85 In

particular, the applicant’s fundamental right under EU law will not be ensured, with the

80 Preamble PD 2013. See chapter 1 of this research. 81 See Articles 35(1) ECHR, 6(1) TEU and the Preamble EU Charter. 82 CJEU: C-146/14 Basir Mohamed Ali Mahdi [2014] EU:C:2014:1320, para. 39; The principle of procedural

autonomy, this is respected by the CJEU as a basic principle, see chapter 2 of this research. 83 ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 157. E.g. see ECtHR: Ílhan v. Turkey (no.

22277/93), 27 June 2000, para. 97. 84 CJEU: C-33/76 Rewe v. Landwirtschaftskammer fuer das Saarland [1976] EU:C:1976:188 , para. 5.; Adolfini,

“The ‘Procedural Autonomy’ of Member States and the Constraints Stemming from the ECJ’s Case Law: Is

Judicial Activism Still Necessary?” in Micklitz and de Witte (eds.), The European Court of Justice and the

Autonomy of the Member States, Cambridge: Intersertia (2012), pp. 281-303. 85 Politics and policy are influenced by the ‘unsettled times’ as elaborated upon in chapter 1 of this research.


28

possible danger of refoulement. Moreover, this will lead to divergent procedures amongst the

MS and the procedural autonomy will stand in the way of the effectiveness of EU law.

Conclusively, this contradicts the EU’s basic principles.86

5.2. Threatening of coherence in fundamental rights protection

The binding legal effects of the EU Charter do not result in EU Member States no longer being

subjected to their international legal obligations, the EU Charter applies in addition to prior

international treaties.87

5.2.1. Effective and coherent system of fundamental rights protection

Before the EU Charter became legally binding, the CJEU relied on general principles of EU

law. The ECHR and case law of the ECtHR served as an important source of inspiration for the

development of these principles.88 Therefore the EU Charter is a reflection of, and is consistent

with the ECHR. The Charter offers at least the same level of fundamental rights protection.

Article 52(3) of the Charter states that, where rights corresponds with rights guaranteed by the

ECHR, the meaning and scope will be the same. By analogy, this also applies to judgments and

the interpretations of the ECtHR.89 Consequently it is under no circumstances allowed for the

EU, its Member States nor the Courts, to constrain from the wording and scope of fundamental

rights as contained in the ECHR. Conversely, both the EU- and the MS national legislator are

not restricted to provide for a more extensive protection than is evident from the ECHR.

The ECtHR accommodates the autonomy of the European Union’s legal order, though when

EU Member States act according to EU law, their responsibilities under the ECHR remain in all

instances where they act by reference to their own MS discretion.90 As demonstrated, the PD

grants quite some space for Member States’ discretion, resulting in a significant role for the

Convention and renders case law of the ECtHR very important. 91 The CJEU is not very

outspoken on the weight that should be attached to the ECtHR’s case law. However, the CJEU

86 For further reading see: Prechal and Widdershoven, “Redefining the Relationship between ‘Rewe-effectiveness’

and Effective Judicial Protection”, Review of European Administrative Law Vol.4 (2011), Paris Legal Publishers,

pp. 31-50. 87 e.g. the ECHR, UNCAT and the Refugee Convention. 88 Article 6(3) TEU; CJEU: Joined Cases C-20/00 and C-64/00 Booker Aquaculture Ltd. V. The Scottish Ministers

[2003] EU:C:2003:397, paras. 65-66. 89 This is demonstrated by the CJEU in several judgments, in which the CJEU stipulated that the ECHR must be

taken into consideration in EU law CJEU: Case C-222/84 Johnston v Chief Constable RUC [1986]

EU:C:1986:206, para. 18. See also: Case C-97/91 Oleificio Borelli SpA v Commission of the European

Communities [1992] EU:C:1992:491 and Case C-222/86 Union nationale des entraîneurs et cadres techniques

professionels du football (Unectef) v. Georges Heylens and Others [1987] EU:C:1987:442 90 ECtHR: Bosphorus Hava Yollari Turizm Ve Ticaret Sirketi v. Ireland (no. 45036/98), 30 June 2005, paras. 155-

156. 91 Costello, “The European Asylum Procedures Directive in Legal Context”. New Issues in Refugee Research, No.

134 (2006), p. 19.


29

claims that they offer at least the same level of protection to fundamental rights as the ECtHR,

this does not mean that the ECtHR’s judgment are always followed in every detail, the CJEU

sometimes uses a different approach than the ECtHR. Advocate General Maduro stressed in his

opinion on the Elgafaji judgment on the significance of dynamic interpretation:

“Community provisions, irrespective of which provisions are concerned, are given an independent

interpretation which cannot therefore vary according to and/or be dependent on developments in the

case-law of the ECtHR”.92

Therefore, cooperation between the ECtHR and the CJEU is necessary.93 What above all must

not be forgotten is that these courts deal with fundamental rights issues, and that the

consequences, what is at stake, should not be taken lightly.

5.2.2. Legality of Article 23(1) Procedures Directive

An applicant cannot challenge the legality of a provision of the PD directly before the CJEU.94

Therefore, an asylum applicant should plead the illegality of provisions from the PD before a

national court of the MS. An applicant may appeal the legality of provisions on which the

decision is based, e.g. on the ground that there has been a violation of a fundamental right. It is

up to the national court to ask for a preliminary ruling.

National authorities have a duty to guarantee the rights and freedoms as set forth in the ECHR

and the EU Charter. Providing effective remedies in the national legal systems of the MS

allows the European Courts to fulfil their, by origin, supervisory role. The ECtHR stated very

clearly in the Kudla-judgment that in the long term the effective functioning of the national and

international protection of human rights is threatened and liable to be weakened when:

“Individuals will systematically be forced to refer to the Court in Strasbourg, complaints that would

otherwise and in the Court’s opinion more appropriately, have to be addressed in the first place within

the national legal system”.95

The CJEU always takes the MS domestic procedural rules as a basic principle in matters which

are not governed by Union law, taking into account that it is for the Member States’ legal

92 Opinion AG Maduro: Case C-465/07 Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van Justitie, [2009]

EU:C:2008:479, para. 19. 93 Costa, “The Relationship between the European Convention on Human Rights and European Union Law – A

Jurisprudential Dialogue between the European Court of Human Rights and the European Court of Justice” The

King’s College London, 2008. 94 Article 263(4) TfEU. 95 ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 155.


30

system to assign and empower courts, and to lay down comprehensive procedural rules and

actions concerning safeguarding rights which derive from Union law.96

If the system is not functioning properly, the margin of discretion on national security and the

lack of guidance on the scope of implementation in the Procedures Directive in the long term

therefore can affect the effective functioning of the human rights protection. Asylum applicants

can be forced to go to ECtHR to file a complaint of a violation of their right to an effective

remedy because of national procedural rules.

Accordingly, it is shown that the legal orders of the ECtHR, the CJEU and MS national courts

have become entangled to a large extent. With the consequence that the boundaries between

fundamental rights protection on these levels have become indistinct.97

This should be settled in EU law, to prevent misapplication. Therefore, Article 23(1) PD should

be phrased more clear, to prevent such situations. This way, the EU Courts can upkeep their

supervisory role.

Conclusively, it is likely that there will be legal coherency problems between the national MS

courts, the CJEU and the ECtHR. This will harm the effectiveness, legal consistency, legal

certainty and procedural autonomy. Finally, the real victims will be the actual vulnerable

asylum applicants, who might suffer disastrous consequences.

96 Principle of procedural autonomy; CJEU: Case C-115/09, Bund für Umwerlt und Naturschutz Deutschland,

Landesverband Nordrhein-Westfalen eV v. Bezirksregierung Anrsberg, [2011], para. 43. 97 To illustrate, 28 EU MS can have a different approach concerning Article 23(1) PD, based on their discretion of

national security. This could lead to 28 different ways of interpreting national security and accompanying 28

different balance checks of fundamental rights. The CJEU can only be consulted by a MS national court, and if so

it will deal with that specific case and MS implementation. Moreover, if an applicant file a complaint before the

ECtHR, in addition, the ECtHR will have yet another view on the matter. This situation will cause for coherency

problems.


31

PART III – Conclusions: Article 23(1) Procedures Directive and the fundamental right to an effective remedy

6. Just before fair asylum procedures in the European Union

This research started with the notion that in the EU there are rights in place that regulate the

internal market and that the EU shall provide for an area of freedom, security and justice. The

latter is in the current situation under extreme pressure. The recent attacks on European targets,

raise doubts and questions on the EU asylum policies. Is national security at stake? The

approach of this research in this context is based on the guarantee of fundamental rights in

national procedures, which may come under pressure. The relevance of this research lies in the

dangers that might arise if fundamental rights are not properly safeguarded in the interest of the

effectiveness of EU law and the far-reaching consequences these might have for asylum

applicants, if for instance these violations result in a violation of refoulement. Where strong

sentiments arise in the Member States, - “every asylum seeker with a beard is a terrorist”,

“asylum seekers come to the EU to abuse the social system”, “asylum seekers are merely

fortune seekers” - does Article 23(1) PD contribute to a method in the madness?

The right to an effective remedy is a comprehensive provision, with a long legislative history.

As presented the right to an effective remedy in the EU Charter is a derivative of the ECHR,

and to that regard there is a strong ratio between these two legal documents and the thereto

corresponding case law.

The ECtHR accommodates the autonomy of the European Union’s legal order, though when

EU Member States act according to EU law, their responsibilities under the ECHR remain in all

instances where they act by reference to their own MS discretion.98 EU secondary law grants

quite some space for MS discretion, resulting in a significant role for the ECHR and renders

case law of the ECtHR very important.

In the EU Treaties is included that the EU shall constitute an area of freedom, security and

justice and that thereto a common policy on international protection will be developed and that

compliance with the principle of non-refoulement will be ensured, to prevent a race to the

bottom in procedural standards and to create an EU-wide area of ‘effective’ protection.

The Procedures Directive is part of the second phase CEAS-framework. The PD should inter

alia, offer for common procedures amongst the Member States of the EU.

98 ECtHR: Bosphorus Hava Yollari Turizm Ve Ticaret Sirketi v. Ireland (no. 45036/98), 30 June 2005, paras. 155-

156.


32

National procedural laws must comply with the fundamental right to an effective remedy. In

the context of this research this means that the EU Procedures Directive which must be

implemented in national legislation confers substantive EU law upon individuals, and therefore

these individuals can rely on the right to an effective remedy. If a remedy is effective, the case

law of both the ECtHR and CJEU prescribes that there has to be real and effective judicial

protection, either in theory as well as in practice.

Article 23(1) PD provides a provision to the Member States to ensure that the legal

representative of the applicant has access to the information in the applicant’s file upon the

basis of which a decision is or will be made. Logically, this is to ensure that the legal

representative and the applicant have all information upon which the decision will be made and

to be able to reply and defend against, or at least comment on, any information that is relevant

for the decision to award international protection to the applicant. This access to the

information in the applicant’s file is therefore an essential element of the right to an effective

remedy. The restriction in the second sentence of Article 23(1) PD permits that MS can non-

disclose evidence to an applicant and his legal representative, based on national security.99

The compliance test exposed that the restriction from the second sentence of Article 23(1) PD,

has a far-reaching influence on the right to an effective remedy of an asylum applicant. It

demonstrated that the affiliated procedural guarantees, are affected. The mere fact that the non-

disclosure of evidence could influence a decision, is reason enough that the right to an effective

remedy is not properly safeguarded. What follows, is a serious breach of the fundamental rights

of the applicant. Therefore, Article 23(1) PD is a direct limitation on the right to an effective

remedy. The current codification of this provision leaves room for a broad interpretation and

implementation by the Member States.

The principle of effectiveness necessitates that the exercise of rights individuals have under EU

law, should be effective in theory and in practice and not be rendered virtually impossible.100

State practice will influence the ‘common asylum procedures’. In its turn, state practice is

influenced by policymaking and politics. It is likely that the substantial margin of discretion

which is left in Article 23(1) will not contribute to the main purpose of the Procedures

Directive 2013. Decisively, this will lead to divergent procedures amongst the MS and the

procedural autonomy will stand in the way of the effectiveness of EU law. The margin of

99 Case law states that fundamental rights do not constitute unfettered prerogatives and may be restricted, vice

versa, the margin of discretion left to MS is not without limitations either. 100 CJEU: C-33/76 Rewe v. Landwirtschaftskammer fuer das Saarland [1976] EU:C:1976:188 , para. 5.


33

discretion on national security and the lack of guidance on the scope of implementation in the

PD, in the long term is liable to affect the effective functioning of human rights protection.

Asylum applicants might be forced to go to ECtHR to file a complaint of their right to an

effective remedy because of national procedural rules. This is likely to cause a fragmentation in

the effective and coherent fundamental rights protection which will harm the legal certainty and

the legal consistency. The EU Courts should have a supervisory role, therefore, the PD should

be clear to prevent these situations.101

Article 23(1) Procedures Directive lacks direction and therefore is liable to misapplication,

poor implementation and the vagaries of state practice. Conclusively, it can be said that Article

23(1) PD does not contribute to a method in the madness, it touches upon the protection of a

vulnerable group of people in terms of effective judicial protection, but fails to seal the system

due to a lack of direction.

101 ECtHR: Kudla v. Poland (no. 30210/96), 26 October 2000, para. 155.


34

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38

Case law:

European Court of Justice:

Case C-695/15 Shiraz Baig Mirza v Bevándorlási és Állapolgársági Hivatal [2016]

EU:C:2016:188

C-146/14 Basir Mohamed Ali Mahdi [2014] EU:C:2014:1320,

Case C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques [2014]

EU:C:2014:2431

Case C-562/13 Centre Public d’Action Sociale d’Ottignies-Louvain-la-Neuve v. Moussa

Abida [2014] EU :C :2014 :2453.

Joined Cases C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en

Justitie [2014] EU:C:2014:2406

Case C-175/11 H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals

Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

[2013] EU:C:2013:45

Case C-418/11 Texdata Software GmbH [2013] EU :C :2013 :588

Case C-617/10 Åklagaren v. Hans Åkerberg Fransson [2013] EU:C:2013:105

Case C-394/12 Shamso Abdullahi v Bundesasylamt [2013] EU:C:2013:813

Case C-182/10 Solvay and Others [2012] EU:C:2012:82.

Case C-277/11 M.M. v Miniser for Justice, Equality and Law Reform, Ireland, Attorney

General [2012] EU:C:2012:744

Joined cases C-317/08 to C-320/08 Alissini and Others [2010] EU :C :2010:146

Joined cases C-411/10 and C-493/10 N.S. v United Kingdom and M.E. v Ireland [2011]

EU:C:2011:865

Case C-115/09 Bund für Umwerlt und Naturschutz Deutschland, Landesverband

Nordrhein-Westfalen eV v. Bezirksregierung Anrsberg [2011] EU:C:2011:289

Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de

l’Immigration [2011] EU:C:2011:524

Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v

Bundesrepublik Deutschland [2010] EU :C :2010:811

Case C-465/07 Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van Justitie [2009]

EU :C :2009 :94

Case T-228/02 Organisation des Modjahedines du peuple d’Iran v. Council [2006]

ECR II-73


39

Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v.

Republik Österreich [2003] EU:C:2003:333

Joined Cases C-20/00 Booker Aquaculture Ltd. and C-64/00 Hydro Seafood GSP Ltd. v.

The Scottish Ministers [2003] EU:C:2003:397

Case C-97/91 Oleificio Borelli SpA v Commission of the European Communities [1992]

EU:C:1992:491

Case C-16/90 Eugen Nölle v Hauptzollamt Bremen-Freihafen [1991] EU:C:1991:402

Case C-222/86 Union nationale des entraîneurs et cadres techniques professionels du

football (Unectef) v. Georges Heylens and Others [1987] EU:C:1987:442

Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986]

EU:C:1986:206

CJEU: C-33/76 Rewe v. Landwirtschaftskammer fuer das Saarland [1976]

EU:C:1976:188 , para. 5.

Opinion Advocate General:

Opinion of AG Cruz Villalón [2013] EU:C:2013:473 on Case C-394/12 Shamso

Abdullahi v Bundesasylamt [2013] EU:C:2013:813.

Opinion of AG Cruz Villalón [2011] EU:C:2011:102 on Case C-69/10 Brahim Samba

Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration [2011] EU:C:2011:524.

European Court of Human Rights:

Sher and Other v. UK (no. 5201/11), 20 October 2015.

Khlaifia and Others v. Italy (no. 16483/12), 1 September 2015

H.S. and Others v. Cyprus (no.41753/10), 21 July 2015

V.M. and Others v. Belgium (no.60125/11), 7 July 2015

Mahammad and Others v. Greece (no. 48352/12), 15 April 2015

Hirsi Jamaa and Others v. Italy (no. 27765/09), 23 February 2012

G.R. v. the Netherlands (no. 22251/07), 10 January 2012

M.S.S. v. Belgium and Greece (no. 30696/09), 21 January 2011

Gaforov v. Russia (no. 25404/09), 21 October 2010

Charahili v. Turkey (no. 46605/07), 13 April 2010

Sharifi and Others v. Italy and Greece (no. 16643/09), October 2009

Abdolkhani and Kaimnia v. Turkey (no. 30471/08), 22 September 2009

Siliadin v. France (no. 73316/01), 26 October 2005


40

Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland (no. 45036/98), 30

June 2005

Conka v. Belgium (no.51564/99), 2 May 2002

Z and others v. UK (no. 29392/95), 10 May 2001

Kudla v. Poland (no. 30210/96), 26 October 2000.

Ílhan v. Turkey (no. 22277/93), 27 June 2000.

Soering v. The United Kingdom (no. 14038/88), 07 July 1989

Silver and Others v. United Kingdom (nos. 5947/72, 6205/73, 7052/75, 7061,75,

7107/75, 7113/75 and 7136/75), 25 March 1983

Airey v. Ireland (no. 6289/73), 9 October 1979

Klass and others v. Germany (No. 5029/71), September 1978

Legislation:

International law:

UDHR – United Nations General Assembly, Universal Declaration of Human Rights,

10 December 1948.

Refugee Convention – United Nations General Assembly, Convention Relating to the

Status of Refugees, 28 July 1951.

CAT – United Nations General Assembly, Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984.

ECHR – Council of Europe, European Convention for the Protection of Human Rights

and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, November 1950.

EU Treaties:

TEU – European Union - Consolidated version of the Treaty on European Union, 13

December 2007.

TFEU – European Union - Consolidated version of the Treaty on the Functioning of the

European Union, 13 December 2007.

EU Charter – European Union – Charter of Fundamental Rights of the European

Union, 26 October 2012.


41

EU secondary legislation:

Dublin III – Regulation (EU) No 604/2013 of the European Parliament and of the

Council of 26 June 2013 establishing the criteria and mechanisms for determining the

Member State responsible for examining an application for international protection

lodged in one of the Member States by a third-country national or a stateless person.

Qualification Directive - European Union: Council of the European Union, Directive

2011/95/EU of the European Parliament and Council, December 2013 on standards for

the qualification of third-country nationals or stateless persons as beneficiaries of

international protection, and for the content of the protection granted (recast), 20

December 2011

Procedures Directive 2013 - European Union: Council of the European Union,

Directive 2013/32/EU of the European Parliament and Council of 26 June 2013 on

common procedures for granting and withdrawing international protection (recast), 26

June 2013

Reception Directive - European Union: Council of the European Union, Directive

2013/33/EU of the European Parliament and Council of 26 June 2013 laying down

standards for the reception of applicants for international protection (recast), 29 June

2013

asylum procedures in the eu_a method in the madness_by elisabeth vos

Documents