Legislative files in a nutshell

Clear Responsibility

The new Regulation clarifies the responsibility criteria and the rules for determining the Member State responsible for assessing an asylum application. Key changes include: 

• Shorter deadlines for all procedures (for example submitting a take back request within 2 weeks after receiving a Eurodac hit instead of 2 months), thus contributing to a faster and more efficient process for determining the Member State responsible.
• Introducing the obligation to apply for protection in the Member State of first entry and remain there until the Member State responsible is determined. Lack of compliance with this obligation will lead to important consequences, like providing only for basic needs rather than the full reception conditions.
• Making the ‘take-back’ procedure for returning someone from one Member State to another more effective, in particular by introducing shorter time limits and no shift of responsibility in case the take-back notification is not sent on time.
• Reinforcing family criteria, among others by:
  • Covering families formed in transit before they arrive in the EU;
  • Introducing the possibility to establish responsibility for the Member State where a family member of the applicant resides legally with a long-term residence permit issued according to the EU rules;
  • Introducing the obligation to always prioritise family-related cases.
• Ensuring free legal counselling for all applicants.

Mandatory but flexible solidarity

The new Regulation introduces a permanent, mandatory, and needs-based solidarity mechanism, replacing current ad-hoc voluntary solutions. This new mechanism will function as follows:

1. Every year by 15 October, the Commission will adopt:

• An annual report assessing the migratory situation across the EU, and in all EU Member States.
• An implementing decision determining whether a particular Member State is (i) under migratory pressure, or (ii) at risk of migratory pressure during the upcoming year, or (iii) facing a significant migratory situation (a less severe situation than migratory pressure, which takes into account the cumulative effect of current and previous annual arrivals).
• A proposal for a Council Implementing Act with the number of relocations and financial solidarity contributions required for the upcoming year.

2. Based on this, the Council will adopt before the end of the year a Council Implementing Act establishing the Solidarity Pool, which will include the specific pledges that each Member State has made for each type of solidarity contribution. Although contributing to solidarity is mandatory for Member States, they can choose with which type(s) of solidarity measure(s) they want to contribute to the Solidarity Pool:

• Relocations of applicants for international protection or, if the contributing and the benefitting Member State both agree, of beneficiaries of international protection.
• Financial contributions:
  • For actions in Member States
  • For actions in or in relation to third countries
• Alternative solidarity measures (i.e. staff and in-kind support).

Member States facing ‘significant migratory situation’ can request a deduction of their solidarity contributions. Instead of relocation, Member States affected by secondary movements can offer, if certain conditions are met, to take over instead responsibility for examining the application of an applicant already present on its territory, which will be counted as a form of solidarity called “responsibility offsets”. Responsibility offsets become mandatory if relocation pledges are insufficient.

The entire process will be overseen and supported by an EU Solidarity Coordinator in the Commission.

The new responsibility rules provide a more efficient system to: 

• Reduce secondary movements. 
• Rule out the possibility of transferring a person constituting a security risk between Member States. 
• Ensure that applicants’ actions do not lead to a shift of responsibility between Member States. 

The new solidarity rules on the other hand, will provide for a mandatory system that is both predictable and flexible to ensure Member States will not be left alone when facing a situation of migratory pressure. 

The new rules will: 

• Improve the predictability of the responsibility system and the related rights for the applicants and increase their awareness through free legal counselling. 
• Ensure that family cases are prioritised, so that families are brought together as early as possible in the asylum process. 
• Provide for swifter and more effective processes for all applicants. 

• Simpler and clearer procedures, with reasonable time-limits for applicants to accede to the procedure and for concluding the examination of applications.
• Stricter rules to prevent abuse of the system and secondary movements, i.e. obligation to apply in the country of first entry: if an applicant whose application has been decided in one Member State, absconds and applies in a second Member State, that Member State will consider the application as a subsequent ;application.
• Procedural guarantees safeguarding the rights of applicants: i.e. free legal counselling during the administrative stage of the procedure: i.e. guidance on the administrative stage of the procedure including information on the rights and obligations, assistance for lodging an application; information on how to challenge a rejection decision and free legal assistance and representation during the appeal stage upon the request of the applicant.
• More attention to vulnerable individuals with special needs.
• A compulsory list of grounds where the examination of an application must be accelerated.
• Clearer rules for applying inadmissibility grounds and for the application of safe third country and first country of asylum concepts.
• Closer links between the asylum and return processes ensuring that a negative asylum decision is issued jointly with a return decision and that appeals against both decisions are handled within the same timelines.
• Introducing a mandatory asylum border procedure in all Member States with a duration of 12 weeks in three cases, when:
  • the applicant intentionally misled the authorities or intentionally destroyed or disposed of an identity or travel document;
  • the applicant is a danger to the national security or public order; or
  • the applicant is of a nationality of a third country for which the proportion of decisions granting international protection is 20% or lower.
• In case an application is rejected in the asylum border procedure, the third-country national is transferred to the return border procedure with a maximum duration of 12 weeks with a view to the swift return of those with no right to stay in the EU.
• The practical application of the border procedure is contingent on having adequate capacity to process asylum applications and returns by Member States, i.e. having enough infrastructure and trained staff to process a given number of applicants. The adequate capacity at Union level is set at 30,000, and at Member State’s level will be established by the Commission every three years by means of an Implementing Act.

• Preventing abuse by setting out clear obligations for asylum seekers to cooperate with the authorities throughout the procedure and by attaching strict consequences to non-compliance. 
• Introducing a mandatory asylum border procedure in all Member States with a duration of 12 weeks to determine whether applications are unfounded or inadmissible. While the application is being examined, applicants are allowed to stay at the border of a Member State but are not authorised to enter the territory of that Member State. The application of the border procedure is mandatory in case an application is rejected in the asylum border procedure. The third-country national is transferred to the return border procedure with a maximum duration of 12 weeks, with a view to the swift return of those with no right to stay in the EU.
• Member States can apply the safe third country concept and have more clarity on the criteria for this, i.e. on the condition that a ‘sufficient connection’ exists between the applicant and the non-EU country in question. When doing so, Member States will be able to avail themselves of both EU and national lists. It will also be possible for Member States to apply this concept individually, i.e. consider that a third country that is not on the EU or national list fulfils the criteria for being considered a safe third country in relation to a specific applicant. 

From the moment the application is made, a third-country national or a stateless person is considered as an applicant for international protection and has the right to remain in the responsible Member State (at the border, if subject to the border procedure or within the territory, if accelerated/regular procedure is applied) until a decision is taken.  

Applicants will be protected in accordance with international law, the EU Charter of Fundamental Rights, and in full respect of the non-refoulement principle.   

Strong safeguards regarding minors, including unaccompanied minors, as follows: 

• The best interest of the child is a guiding principle to be taken account across all steps of the procedure. A best interest assessment has to take place in accordance with the relevant provisions of the Reception Conditions Directive; 
• Possibility for a minor to have a personal interview (admissibility and/or merits) if in his/her best interest conducted in the appropriate manner; 
• Unaccompanied minors to be assisted and represented by a temporary representative to help with the registration, lodging, fingerprinting and all the necessary procedural steps;  
• The representative to be appointed no later than 15 working days from when the application was made; 
• The number of unaccompanied minors per representative may be of no more than 30, and maximum 50 in the event of a disproportionate number of applications made by unaccompanied minors; 
• Age assessment: multidisciplinary assessment including a psychosocial one; medical examination for this purpose to be used only as a measure of last resort. 

Applicants have the right to a personal interview and to consult a legal adviser or other counsellor at all stages of the process. Applicants have the right to appeal a negative asylum decision as well as the return decision issued at the same time. The appeals against the following types of decisions do not entail an automatic suspensive effect (no automatic right to remain): 

• negative decision on the merits issued in an accelerated procedure or border procedure (except if the applicant is an unaccompanied minor);  
• inadmissibility decision (except if the ground for rejecting is the safe third country principle);
• decision rejecting an application as implicitly withdrawn;  
• decision withdrawing international protection if on the basis of any of the following grounds – exclusion grounds (refugees), danger to security (refugees), conviction for a particularly serious crime and constitutes a danger to community (refugees), exclusion grounds (beneficiaries of subsidiary protection). 

In such cases, the person may request the right to remain (the deadline to lodge such a request is of at least 5 days) or the court may decide ex officio on this matter. The person is allowed to remain until the deadline to lodge such a request lapse or, where the person has lodged such a request, until the court has made a decision on this. 

Safe third country designation at EU level

While the Regulation contains the necessary provisions detailing the criteria that a third country should fulfil to be considered safe and the rules for setting up and modifying an EU list of safe third countries, there is no such list attached to the Regulation. The list may be adopted at a later stage by an amendment to the Regulation. Member States can continue to keep their national lists in parallel, even after the adoption of the EU list. 

Criteria that a third country has to meet in order to be designated as a safe third country include: life and liberty of a person are not threatened on account of race, religion, nationality, etc.; there is no risk of serious harm; the principle of non-refoulement; there is a possibility to request and, if conditions are met, receive effective protection.  

The main differences between the safe third country concept and the safe country of origin concept: safe third country refers to a country that can be considered safe for an applicant that is not a national of that third country, whereas safe country of origin refers to a country that is considered safe for its nationals (or former habitual residents, in case of stateless applicants).  

This Regulation provides for enhanced solidarity and allows for derogations to be taken in exceptional circumstances and for the shortest time necessary. 

 On reinforcing solidarity: 

• The enhanced solidarity and support measures could take the form of relocations, financial contributions, alternative solidarity measures (such as staff or in-kind support) or a combination of these measures. 
• When these measures are not sufficient, so called “responsibility offsets” will kick in. This means that the contributing Member State will take over responsibility for applications already present on their territory, for which the Member State facing a situation of crisis should normally be responsible.  
• In contrast to the Asylum and Migration Management Regulation, in crisis situations, all relocations (people solidarity) need to be covered by contributing Member States, up to 100% of the relocation needs identified in the Solidarity Response Plan.  
• Therefore, in a situation of crisis, contributing Member States may have to take responsibility for examining applications for international protection beyond their fair share. In that case, these Member States will be able to deduct this extra part from their solidarity contributions in the future.  

On derogations: 

Member States facing a situation of crisis, including instrumentalisation, or facing force majeure may derogate from certain rules provided for in the asylum acquis, including:  

• Extended timelines to register applications for international protection to 4 weeks from when they are made; a longer duration of the border procedure (extension from 12 weeks to a maximum of 18 weeks);  
• Extended time limits for rules determining the Member State responsible (only in situation of crisis, mass arrivals and force majeure). This means, for example, extending the time limit for submitting a take charge request from 1 or 2 months to 4 months from the date on which the application was registered.     
• Derogations to the application of the border procedure and extension of the scope of the border procedure, depending on the situation.  

Member States are empowered to react to situations of crisis, instrumentalisation, and force majeure, making their migration and asylum systems more resilient by: 

• Reinforcing the solidarity framework by ensuring that all the solidarity needs of the concerned Member State(s) are covered. 
• Providing a range of derogations from the normal rules, depending on the situation.  

The new rules preserve the right to access the asylum procedure and ensure respect for fundamental rights, including through safeguards that the measures will be assessed by the Commission, authorised by the Council, and applied only in exceptional circumstances, strictly for as long as and to the extent necessary. The Commission will pay particular attention to the compliance with fundamental rights and humanitarian standards, the necessity and proportionality of measures, as well as to whether the situation persists. 

Applications of vulnerable groups, such as unaccompanied minors, pregnant women, and families with young children, will be prioritised. In a situation of instrumentalisation where the border procedure can be applied to all applicants, minors under the age of 12, family members, and people with special procedural or special reception needs, will either be excluded from the border procedure from the outset, or, if a procedure has already started, as soon as an individual assessment concludes that their applications are likely to be well-founded, that procedure should cease to apply to them.  

• In the future, Eurodac will make it possible to count not only applications but also applicants. The type of data registered will expand (not only fingerprints but also facial image, identity data, copies of identity/travel documents). 
• The storage period for certain types of data will be extended to 5 years while the storage period for data of applicants will remain 10 years.  It will contain data of persons disembarked after search and rescue operations, apprehended following an irregular crossing of the external border, found to be staying illegally on a Member State’s territory, resettled persons and beneficiaries of temporary protection. 

On increased security guarantees:  

• The system will now also include data from children as of 6 years old, allowing authorities to identify children in case they get separated from their families and protect those vulnerable from ending up in scenarios of human trafficking and exploitation. 
• The system will also create a possibility to flag a person entering the EU who poses a threat to internal security, subject to strong data protection safeguards.

The new rules will help facilitate the identification of people, keep track of double applications, and increase the ability of Member States to prevent secondary movements (unauthorised movements of applicants for international protection from the Member State of arrival to another Member State) and apply the appropriate procedural rules when security challenges are identified.  

People in need of protection will benefit from faster asylum and resettlement procedures. Furthermore, vulnerable categories, including unaccompanied minors, will benefit by being identified and thus diminishing the risk of being exploited or trafficked. 

The Regulation closes a gap in the existing framework by ensuring: 

• Uniform health, identity and security checks of migrants who cross the EU external borders illegally.
• Screening will have to be completed in a limited timeframe: 7 days for the screening at the external borders and 3 days for the screening of persons apprehended within the territory;   
• Quick channelling to the right procedures (asylum border procedure, regular asylum or return border procedures); 
• Independent monitoring of respect for fundamental rights during screening and border procedures.

The new rules will play a key role in: 

• Securing external borders and improving the management of irregular arrivals at the EU level; 
• A harmonised obligation on all Member States to identify and screen irregular migrants, and thereby replacing currently diverging national practices; 
• Ensuring that first entry Member States carry out the necessary checks; 
• Reinforcing security within the Schengen area by ensuring that irregular migrants and asylum seekers who pose a threat to EU internal security will be identified; 
• Managing public health risks through thorough checks.

Irregular migrants and asylum seekers will benefit from the Screening Regulation in the following ways: 

• The mandatory health and vulnerability checks will ensure that those in need of immediate care as well as minors and vulnerable persons are identified early; that they will benefit from the rules protecting them as quickly as possible; and that they receive the support necessary; 
• The screening will contribute to making processes faster and more efficient; 
• The new independent monitoring mechanism will enhance transparency and accountability during screening, while at the same time promoting the respect of fundamental rights.   

The Qualification Regulation will strengthen and harmonise criteria for granting international protection and the rights attached to it by: 

Fostering greater convergence of asylum practices and decisions by: 

• Requiring Member States to assess whether there is an internal protection alternative (safe part within the country of origin), and not granting refugee status in such a case; 
• Requiring Member States to withdraw international protection status when the person constitutes a danger to the community or to the security; 
• Requiring Member States to take into account up-to-date EU Asylum Agency (EUAA) guidance on countries of origin when assessing and reviewing applications. 

Clarifying rights and obligations of beneficiaries by: 

• Providing harmonised information to beneficiaries;
• Requiring to issue residence permits within 90 days in a harmonised format;   
• Providing Member States with the possibility of making access to social assistance conditional on the effective participation of the beneficiary in integration measures; 
• Reinforcing the rights of unaccompanied minors in terms of information provision in a child-friendly manner and in relation to the requirements for the guardians; 
• Clarifying that national humanitarian statuses are authorised, provided that they are granted only to persons who do not fall under the scope of the Qualification Regulation. 

The new rules will: 

• Discourage secondary movements of beneficiaries; 
• Make sure that applicants for international protection substantiate their applications with all relevant elements;  
• Increase the convergence in recognition rates across Member States and further harmonise the criteria to grant international protection;
• Provide incentives to integration. 

Beneficiaries will be provided with: 

• A clear set of minimum information to be provided along a template provided in an annex of the Regulation; 
• Faster access to residence permits and continuity in between renewals;
• Reinforced rights for unaccompanied minors; 
• A clarified set of rights and obligations in terms of employment, social benefits, health care, education, integration etc.

• The upgraded Directive further harmonises the standards of assistance across the EU and sets obligations for Member States to guarantee these standards. Member States will also be obliged to develop a contingency plan in case of a disproportionate number of arrivals. 
• It strengthens safeguards and guarantees for persons with specific reception needs, including children. Flexibility and efficiency in the management of reception systems are also introduced along with increased integration support for asylum seekers.  
• To prevent secondary movements, Member States will not be able to provide material reception conditions when an applicant is found in a Member State other than the one responsible.  

 Harmonisation of standards 

• The new rules will ensure adequate standards throughout the EU by obliging Member States to consider EU Asylum Agency indicators and guidance on reception, ensure sufficient capacity and establish contingency plans.  

 Strengthened safeguards and guarantees for asylum applicants 

• The assessment of specific reception needs must be completed within 30 days (as opposed to a reasonable period in the current text) and victims of torture and violence need to have access to care as soon as possible.  
• Detention should not be used if it puts the physical and mental health of applicants at risk. Children as a rule should not be detained and will benefit from increased protection, including faster access to education and designated representatives for unaccompanied minors.  

 Increased flexibility and integration processes  

• The new rules will enable Member States to allocate asylum seekers to accommodation and to a geographical area in a more flexible way, and also provide for the possibility to restrict freedom of movement. Asylum seekers will have access to the labour market no later than six months after their application is registered and Member States are encouraged to provide earlier access in particular to applicants whose applications are likely to be well-founded. Member States will have to ensure access to language, civic education, or vocational training courses. 

Member States will benefit from more flexibility and more possibilities to organise their reception systems in an adequate and effective manner, being better prepared for when their asylum systems are put under pressure. 

Asylum seekers, including minors, will benefit from an adequate standard of living across Member States, along with faster and strengthened safeguards and guarantees and access to work and education. 

• The new rules create a collective and harmonised approach for resettlement and humanitarian admission, with common procedures. This will allow the EU to speak with one voice and help increase the Union’s contribution to international resettlement.  

 Common policy and procedures 

• The new law introduces a unified procedure for resettlement and humanitarian admission operations, reducing current divergences among national practices and improving efficiency. 
• It envisages the preparation of a 2-year Union plan, adopted by the Council based on a proposal by the Commission and informing the European Parliament during the process. This Union Plan will determine the total number of persons in need of protection to be admitted to the EU and include indications on the contribution by each Member State, as well as setting geographic priorities for the Union of non-EU countries from which admission is to occur. 

 Strengthened partnerships with non-EU countries 

• The Union Framework will contribute to strengthening the EU’s partnerships with non-EU countries, including by showing global solidarity to countries hosting large refugee populations. 
• The Regulation will enhance the Union’s contribution to international resettlement and humanitarian admission initiatives, in synergy with the commitments of other countries.  

• The Union Framework gives a clear framework for resettlement and humanitarian admission to Member States, introducing common procedures and bringing more predictability and efficiency in handling cases on the ground.  
• Member States’ voluntary efforts will be supported by appropriate funding from the EU budget.  
• Member States will be able to admit refugees through resettlement and humanitarian admission scheme also outside the Union Plan.

• The Union Framework helps increase available safe and legal pathways to the EU for the most vulnerable refugees.  
• For admissions in line with the Union Plan, the Framework sets out clear and harmonised procedures, including timelines and information provision, to enhance transparency and improve the efficiency of the process.