Asylum procedure

Asylum procedures are governed by the recast Asylum Procedures Directive (binding on all countries except Ireland, the UK, Switzerland, Serbia and Turkey) and include different administrative processes for examining an application for international protection. Beyond the regular procedure, European countries apply accelerated, border and admissibility procedures, as well as specific procedures to implement the Dublin Regulation.

The information in this section is up-to-date as of the end of 2016.

 

Access to the procedure and registration

Time limits for registering and lodging applications

Article 6 recast Asylum Procedures Directive

Article 6 of the recast Asylum Procedures Directive requires Member states to register an asylum appli­cation within three working days if the application is made to the authority competent under national law for such registration, or no later than six working days if it is made to other authorities who are likely to receive asylum applications but are not competent to register them, such as for instance at the border or in detention. The time limit for registration can be extended to ten working days in case of large numbers of third-country nationals applying for asylum simultaneously.

A person who has made an asylum application must have an effective opportunity to lodge the asylum application as soon as possible. Member States may require that asylum applications are lodged “in person and/or at a designated place”. According to Article 6(4) of the recast Asylum Procedures Directive, an asylum application is deemed to have been lodged once a form submitted by the applicant, or where provided for in national law, an official report, has reached the competent authorities of the Member State. Where the applicant does not lodge his or her asylum application, Member States may consider the asylum application as implicitly withdrawn or abandoned and either discontinue the examination of the asylum application or reject the application in case it is considered as unfounded on the basis of an adequate examination of its substance.

Out of the 20 AIDA countries only 6 have laid down time limits for lodging an asylum application on the territory: Belgium, Cyprus, Spain, France, Croatia and Serbia. Compared to the last AIDA update, Cyprus has introduced time limits, but Malta and Ireland have abolished their previously applicable deadlines.

Some countries provide for specific time limits for lodging an application from detention. In France, the time limit for lodging an application is 5 days from detention, as opposed to 21 days on the territory. In other cases, countries have specific rules at the border: in Italy an application must be lodged within 8 working days at the border and in Belgium an application at the border has to be made immediately upon the request of the border police officer about the purpose of the journey to Belgium.In Germany, on the other hand, a new sanction for asylum seekers who fail to appear in person without delay or on the date determined by the authorities at the responsible branch of the Federal Office for Migration and Refugees (BAMF) was introduced in March 2016, which results in effectively ending the asylum procedure before it has begun.

Issues with access to the procedure in practice

In practice, refugees often encounter obstacles to the access to the procedure and registration. Problems related to access to the procedure arose in 2016 in several AIDA countries. For example, in Croatia delays in the interviews for the purpose of lodging asylum applications have occurred in 2016, mostly due to lack of available interpreters for certain languages, but also in situation where guardians were not appointed to unaccompanied children.

In France, delays in the registration of applications have persisted in 2016, exceeding one month in Paris and reaching almost two months in Seine Saint Denis, while the registration of claims was temporarily suspended in Guiana. In September 2016, in Italy, the police headquarters (Questura) of Rome also suspended access to the procedure for a month. In other Questure such as Pisa or Catania, delays in the completion of the registration procedure have reached 3 months, or even 6 months in Naples.

Problems with access to the territory and push-backs were reported in Austria, Bulgaria, Spain, France, Croatia, Greece, Hungary, Italy, Poland, Switzerland and Serbia. Access to the procedure in Hungary has further deteriorated as the authorities only allow 5 persons per day to enter each transit zone, combined with a so-called “8-km rule” allowing the Hungarian police to automatically push back asylum seekers who are apprehended within 8 km of a border without registering their data or allowing them to submit an asylum claim.

Access to the procedure

Regular procedure

Time limits for examining the application

Article 31 recast Asylum Procedures Directive

Article 31 of the recast Asylum Procedures Directive lays down time limits for taking a decision on an asylum application at first instance. Article 31(2) requires Member States to conclude the procedure as soon as possible. Article 31(3) specifies that the procedure must be completed within 6 months of lodging the application, and that in case of a Dublin procedure, this period only starts when the responsible Member State has been identified and the applicant has reached the territory of that Member State. In some countries, shorter deadlines have been introduced for the completion of the regular procedure:

This time limit of 6 months can be extended by a maximum of 9 more months according to Article 31(3) of the Directive, where:

  • Complex issues of fact and/or law are involved;

  • A large number of third-country nationals or stateless persons simultaneously apply for international protection, making it very difficult in practice to conclude the procedure within the six-month time limit;

  • The delay can clearly be attributed to the failure of the applicant to comply with his or her obligations under Article 13 of the recast Asylum Procedures Directive.

In exceptional and duly justified circumstances, the time limit can be extended by another 3 months where it is deemed necessary in order to ensure an adequate and complete examination of the application for international protection. These derogations from the general deadline are permissible insofar as Member States do not exceed the overall deadline of 21 months, as stated in Article 31(5) of the Directive.

Countries such as Cyprus, Croatia, Bulgaria and Malta have opted for the absolute maximum of the procedure whereas most other countries have opted for a slightly shorter, yet still long timeframe within which a decision on an asylum application has to be taken at first instance.


In practice, the average duration of the procedure for all caseloads in 2016 was 10.5 months in Sweden, compared to 7.1 months in Germany, 8.2 months in Poland and Austria (first three quarters of 2016) and 8.3 months in Switzerland. In Spain, the duration of the asylum process is on average 1.5 years, although official figures by the Office for Asylum and Refuge (OAR) are not available. The same goes for France where only provisional statistics are available which point to a 5-month average duration of the procedure, thereby clearly reducing the length of the procedure compared to previous years.

Appeal against a negative decision

Article 46 recast Asylum Procedures Directive

Article 46 of the recast Asylum Procedures Directive requires Member States to ensure that asylum seekers have the right to an effective remedy before a court or tribunal against any decision taken on their application for international protection, including inadmissibility decisions and decisions taken at the borders. An effective remedy is furthermore defined as providing for a full and ex nunc exami­nation of both facts and points of law at least in appeals procedures before a court or tribunal at first instance. The Directive does not impose specific time limits for lodging appeals but requires Member States to provide for reasonable time limits, and other necessary rules for the applicant to exercise the right to an effective remedy. As per Article 46(4), reasonable time limits shall not render the exercise of the right to an effective remedy impossible or excessively difficult.

An administrative appeal is provided for in GreeceMalta and Poland, while other countries have judicial or quasi-judicial appeals. Spain, Serbia and Cyprus have both.

The following time limits have been set out by AIDA countries with regard to appeals in the regular procedure:


In most AIDA countries, the appeals, whether judicial or administrative, have automatic suspensive effect. However in some countries there is no suspensive effect when an application is rejected as “manifestly unfounded” (Germany) or certified as “clearly unfounded” (United Kingdom). In the Netherlands, an appeal under the extended procedure always has suspensive effect, whereas an appeal in the short procedure only sometimes leads to suspensive effect. In Spain, neither administrative nor judicial appeal has automatic suspensive effect.Asylum seekers must have access to an appeal with automatic suspensive effect over the execution return proceedings pending the outcome of the rem­edy under Article 46(5) of the Directive. In certain cases, including cases that have been decided in accelerated procedures or border procedures and inadmissibility decisions, a system may be applied whereby a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory either upon the applicant’s request or ex officio. This may only be applied in procedures at the border provided that the applicant has the necessary interpretation, legal assistance and at least one week to prepare and submit the appeal, and the court or tribunal in such case has the competence to examine the negative decision of the determining authority in terms of fact and law.

Legal assistance

Articles 19-21 recast Asylum Procedures Directive

The provision of legal and procedural information free of charge in procedures at first instance is foreseen in Article 19 of the recast Asylum Procedures Directive. Article 20 ensures free legal assistance and representation in appeals procedures. Article 20(3) specifies that a Member State can opt not to offer free legal assistance and representation in appeal procedures where it considers that the appeal has no tangible prospect of success. Article 21 provides some more details on the conditions for the provision of legal and procedural information free of charge and free legal assistance and representation. It states that the provision of legal and procedural information can be done by non-governmental organisations, or by professionals from government authorities or from specialised services of the State. It furthermore offers Member States the possibility to limit the provision of legal assistance only to those who lack sufficient resources and/or provided by legal advisers or other counsellors specifically designated by national law to assist and represent applicants.

In practice the following problems with access to and quality of legal assistance were registered in 2016:

  • Merits test: In Germany, asylum seekers can apply for legal aid to pay for a lawyer during the appeal stage. The granting of legal aid is dependent on how the court rates the chances of success. In 2016 in Italy problems were encountered in Milan and Trieste, where a strict merits test was applied by the Bar Councils, and in Rome, Florence and Genova where administrative issues prevented asylum seekers from getting legal assistance.

  • Newly created legal aid systems: In Poland legal aid was only introduced last year, however in 2016 it was only used in 315 out of 1200 proceedings. In Cyprus recent reforms resulted in the Asylum Service taking responsibility for legal assistance but this has system yet to start. In Bulgaria a system providing legal aid is supposed to be in place as of January 2017. In Croatia legal assistance during the first instance proceeding is provided for in law, but not applied in practice.

  • Remuneration: In Austria the quality of legal aid and representation has raised concerns due to the reduction of funded lawyers, leading to only one organisation receiving funding to provide free legal assistance and representation. In Belgium the remuneration of legal aid lawyers was made less attractive in 2016 in order to dissuade asylum seekers and their lawyers from lodging appeals without chances of success. The lack of remuneration is also raised in Hungary and Malta.

  • Other: In Hungary several obstacles are perceived, such as little knowledge of foreign languages and the aforementioned low compensation for lawyers, which have resulted in the use of legal assistance in only 5.7% of the total number of cases. Obstacles in Malta also include the fact that lawyers are required to visit the Refugee Commissioner to find information on the case at hand.

Regular procedure

Dublin procedure

The Dublin III Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an asylum application. It binds all EU Member States and Switzerland but not Serbia or Turkey.

Dublin statistics

In 2016, AIDA countries applied the Dublin Regulation as follows:

Source: AIDA, Country Reports (BG, CY, DE, ES, GR, HU, IT, MT, PL, SE, CH). Figures for IT as of November. Source: Eurostat (AT, FR, HR, NL, UK).

Appealing a Dublin decision

Article 27 Dublin III Regulation

The right to an effective remedy, in the form of an appeal or review, in fact and in law against a transfer decision before a court or tribunal, is explicitly laid down in the Article 27 of the Dublin Regulation. National legislation must provide for:

  • Automatic suspensive effect of the appeal; 

  • A system whereby transfer is automatically suspended for a reasonable period of time during which a court or tribunal must decide whether the grant suspensive effect to the appeal or review; or

  • A system whereby the asylum seeker can request a court or tribunal within a reasonable time to suspend the implementation of the transfer decision. In any case a close and rigorous scrutiny of the suspension request is required.

All countries foresee the possibility to appeal a Dublin decision, however in the United Kingdom this is only possible if human rights would be breached in the receiving country. The appeal is automatically suspensive in GreecePolandCroatiaSwedenMaltaIreland and France. In Belgium there is only suspensive effect if it concerns a case that satisfies the extreme urgency test. In Malta, immigration legislation regulating procedures before the Immigration Appeals Board does not specify whether such appeals have suspensive effect or otherwise, yet may be interpreted as implying such a suspensive effect if requested, even verbally, by the appellant.

Article 27 of the Regulation also requires the time limits for lodging an appeal against a Dublin decision to be "reasonable". Practice in Member States is widely divergent as regards the implementation of the Dublin III Regulation rule on “reasonable” time limits for appeals:

Dublin procedure

Special procedures

In addition to the regular and Dublin procedure, the recast Asylum Procedures Directive foresees special procedures applicable in specific locations or to specific caseloads. Member States have set up different arrangements to examine the admissibility of claims, as well as to process claims presumed to be manifestly unfounded or made at the border.

Admissibility procedure

Article 33 recast Asylum Procedures Directive

Article 33 of the recast Asylum Procedures Directive allows Member States not to examine an asylum application on the merits when they are not responsible for that claim under the Dublin Regulation or when the claim is deemed inadmissible. Inadmissibility may only be ordered on five exhaustive grounds defined by the Directive, where the applicant: (a) has been granted international protection by another Member State; (b) comes from a “first country of asylum”; (c) comes from a “safe third country”; (d) makes a subsequent application with no new elements; or (e) is a dependant of an applicant and makes a separate claim without justification. Italy, Serbia and Sweden do not use the concept of inadmissibility at all. 

Shorter time limits for appealing a negative decision are applicable in the admissibility procedure. In the UK appeal is again only possible on the basis of a breach of the European Convention on Human Rights (ECHR). AIDA countries have introduced different rules for such appeals:

Appeals in Austria and Germany have no automatic suspensive effect, whereas those Bulgaria, Greece, Ireland, Malta, Poland and the United Kingdom have suspensive effect. Some countries have a mixed regime where appeals for admissibility decisions based only on certain grounds result in suspensive effect. Appeals in Switzerland and the Netherlands have no suspensive effect if based on Dublin grounds, but have suspensive effect when the decision was based on other grounds. In Croatia, decisions related to the first country of asylum have no suspensive effect, but others do. In Hungary those based on the safe third country concept generate suspensive effect but those on other grounds do not. In Spain the judicial appeal and the recurso de reposicion have no suspensive effect, whereas the re-examen appeal does have suspensive effect.

It should be noted that Article 46(6)(b) of the recast Asylum Procedures Directive requires automatic suspensive effect to be provided in appeals against inadmissibility decisions on safe third country grounds.

Border procedure

Article 43 recast Asylum Procedures Directive

Article 43 of the recast Asylum Procedures Directive allows for procedures relating to the admissibility and/or the substance of an asylum application where the grounds for applying the accelerated procedure apply, to take place at the border for up to a period of 4 weeks. Read alongside Article 4 of the Directive, it is clear that this procedure must be undertaken by a responsible determining authority which is obliged to carry out an appropriate examination of an international protection claim. Said authority must be provided with the appropriate means, sufficient competent personnel, relevant training on international human rights and asylum law and relevant jurisprudence, interview techniques use of medical, legal and country of origin reports as well as knowledge of applicants’ specific vulnerabilities. It is to be noted that whilst the recast Directive provides for a different authority than the determining one to process Dublin related cases, unlike the 2005 Directive, it does not explicitly say that this also applies to procedures which take place at the border.

In BulgariaCyprusCroatia, ItalyMaltaSweden and Serbia no border procedure is applied. The remaining AIDA countries have a border procedure, but not all of them examine the application on the merits at this stage. Only AustriaBelgiumGermanySpain, France, Greece, the Netherlands and Switzerland do so.

  • Types of borders: A specific border procedure is applied at airports in Austria, Germany, Hungary, the Netherlands and Switzerland. In Belgium the external border posts comprise 6 airports, 6 seaports and one international train station. Similarly in Spain, the border procedure is applied in airports, seaports and land borders. In France the border procedure is provided for persons arriving on French territory through airports or seaports. In Greece the normal border procedure applies to asylum seekers arriving in airports or present in transit zones. A special border procedure was introduced, known as a “fast-track” border procedure, visibly connected to the implementation of the EU-Turkey statement. This procedure is an extremely truncated asylum procedure with fewer guarantees. The procedure is applied in cases of applicants subject to the EU-Turkey statement, i.e. applicants who have arrived on the Greek Eastern Aegean islands after 20 March 2016 and thus remain in the Reception and Identification Centres (RIC) of Lesvos, Chios, Samos, Leros and Kos. Besides a specific border procedure for airport arrivals, Hungary also has a specific procedure for the land transit zones. In Hungary the application is examined on the merits during the border procedure in the airport zone but not during applications made in the transit zones on the land borders with Serbia and Croatia. 

  • Quality of the procedure: In Germany concerns have been expressed regarding the quality of decision-making in the airport procedure in a recent Memorandum by German NGOs. Four of the cases reviewed showed lack of a substantive examination of the applications concerned, leading in one case concerning an Afghan national to rejection as “manifestly unfounded”. In France the Border Division of OFPRA interview the asylum seeker and formulates an opinion. In theory this interview is conducted to check whether the stated facts are manifestly unfounded, however in practice the assessment usually covers the verification of the credibility of the account; interview reports contain comments on stereotypical, imprecise or incoherent accounts, with a lack of written proof. This practice of de facto examining the request on the merits is extremely problematic.

Accelerated procedure

Article 31(8) recast Asylum Procedures Directive

Article 31(7)-(8) of the recast Asylum Procedures Directive makes provision for the possibility of applying special procedures to deal with specific caseloads which may warrant swifter decisions. Whereas the 2005 Asylum Procedures Directive drew no legal distinction between “prioritised procedures” or “accelerated procedures”, the 2013 Directive clearly distinguishes the two. As explained in the Preamble to the recast Asylum Procedures Directive, prioritised procedures entail a more rapid examination of claims “without derogating from normally applicable procedural time limits, principles and guarantees”, while accelerated procedures differ from regular procedural rules “in particular by introducing shorter, but reasonable time limits for certain procedural steps”. Accelerated procedures involve appeals subject to shorter time-limits and which often have no (automatic) suspensive effect over removal decisions, thereby exposing asylum seekers to the risk of deportation before their appeal is decided.

Article 31(8) of the Directive identifies ten grounds where the accelerated procedure may be applied,. These concern cases where:

  • the applicant has only raised issues not relevant to refugee or subsidiary protection status

  • the applicant comes from a “safe country of origin”

  • the applicant has misled the authorities by presenting false documents or withholding relevant information relating to identity and nationality which could adversely affect the decision

  • it is likely that, in bad faith, he or she has destroyed or disposed of identity or travel documents

  • the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his or her claim unconvincing

  • the applicant has filed an admissible subsequent application

  • applicant entered or stayed irregularly in the territory and, without good reasons, did not present him or herself to the authorities to file an application as soon as possible

  • is making an application to delay or frustrate the enforcement of a return decision

  • the applicant is a danger to national security or has been expelled for reasons of public security and public order

  • the applicant refuses to be fingerprinted.

Most AIDA countries have an accelerated procedure, with the exception of the Netherlands and Serbia. In Spain the procedure is called ‘urgent procedure’, whereas in Sweden the accelerated procedure is labelled as the procedure for manifestly unfounded claims, and Switzerland has different truncated procedures, including the ‘48-hour procedure’, the ‘fast-track procedure’ and the ‘test phase procedure’.

Article 31(9) of the recast Asylum Procedures Directive grants discretion to Member States as to the definition of time limits for deciding on applications under the accelerated procedure. The only requirement imposed by EU law is for such time limits to be “reasonable”.

European countries that apply accelerated or otherwise expeditious procedures for specific caseloads have introduced specific time limits for the examination of asylum applications channelled therein and for lodging an appeal. These deadlines may vary considerably from one country to another as the table below illustrates. In addition to the divergent practices regarding deadlines, the question of whether the appeal has suspensive effect also creates a fragmented legal framework with some countries allowing the appeal to have suspensive effect, and some countries not having suspensive effect.

Special procedures

Safe country concepts

Safe country of origin

Articles 36-37 recast Asylum Procedures Directive

Under Articles 36-37 of the recast Asylum Procedures Directive, Member States may designate a country as a “safe country of origin” where its nationals are “generally and consistently” at no risk of persecution or serious harm on the basis of the law, political situation and general circumstances. This designation, done in a national list, is currently practiced in Austria, Belgium, Germany, France, Croatia, Hungary, Malta, the United Kingdom, Switzerland and Serbia, as well as other countries not covered by AIDA:

The safe country of origin concept is a ground for applying the accelerated procedure.

Safe third country

Article 38 recast Asylum Procedures Directive

The "safe third country" concept is defined in Article 38 of the recast Asylum Procedures Directive as a country which is considered to offer sufficient protection against persecution or serious harm, which respects the principle of non-refoulement, and which offers the possibility for an individual to request refugee status and receive protection in accordance with the 1951 Refugee Convention.

The safe third country concept is a ground for inadmissibility. It is incorporated in domestic law in Austria, Bulgaria, Cyprus, Germany, Spain, Greece, Croatia, Hungary, Malta, the Netherlands, the United Kingdom, Switzerland and Serbia. Switzerland and Germany have lists of safe third countries, which however only include countries applying the Dublin Regulation.

Level of protection: According to the European Commission, protection in accordance with the Convention may be available in a third country even where that country applied geographical limitations to the Convention. Hungary and Greece have not opposed this line of reasoning, as the former includes Turkey on its list and the latter assesses whether Turkey can be considered a “safe third country” for specific nationals despite its geographical limitation to the Convention. In Serbia, countries such as Turkey, Greece and the FYROM are considered ‘safe’ merely due to the fact that they are parties to the 1951 Geneva Convention (the fact that Turkey has opted to apply geographic limitations to its implementation of the Convention likewise is not taken into consideration) and the list has never been revised in light of well-known case law such as the ECtHR’ judgment in M.S.S. v. Belgium and Greece. This has led to many asylum applications being dismissed over the years without the Asylum Office ever having entered into the merits of the claim.

The situation in Greece in 2016 is less straightforward. The implementation of the EU-Turkey deal agreed on 18 March 2016, entailing the return of all irregular migrants entering the Greek islands to Turkey, has relied upon the ability of the Greek Asylum Service to presume Turkey as a “safe third country” with a view to dismissing the applications of those entering its territory from Turkey as inadmissible. Though Greek law does not set out a list of safe third countries, applications have been declared inadmissible at first instance on the basis that Turkey satisfies the safety criteria. On appeal, these inadmissibility decisions were deemed incompatible with the asylum acquis, as the majority of Appeals Committees found Turkey not to qualify as a “safe third country”. The composition of these Appeals Committees was modified in June 2016, therefore it remains to be seen whether the same interpretation will be followed.

Sufficient connection: The recast Asylum Procedures Directive also requires Member States to establish rules requiring a connection between a safe third country and the individual asylum seeker which would make return thereto reasonable. Austria does not consider mere transit sufficient to establish a connection. The Netherlands provides that a special connection (“zodanige band”) with the third country exists where the applicant has a spouse or partner who holds the country’s nationality, has a family member residing in the country with whom he or she is still in contact, or has stayed in that country. In the same strand, Bulgaria requires prolonged stay or residence to determine a “safe third country” and does not deem transit a sufficient connection. On the other hand, Hungary has introduced connection-related criteria in its Asylum Act and deems transit or stay as a sufficient connection in practice, even where the person was smuggled through a country and has no knowledge of that country. Serbia has not introduced rules requiring a connection, but also deems mere transit through a country sufficient for the “safe third country” concept to be applied.

First country of asylum

Article 35 recast Asylum Procedures Directive

Under Article 35 of the recast Asylum Procedures Directive, the concept of "first country of asylum" entails that an asylum seeker has obtained refugee status in a third country and may avail him or herself of this protection, or “otherwise enjoys sufficient protection in that country”. The Directive also enables Member States to take into account the criteria relating to “safe third countries”, which include the possibility for an individual to request and receive protection in accordance with the Refugee Convention.

The first country of asylum concept is also an inadmissibility ground, and is incorporated in domestic law in Austria, Belgium, Cyprus, Germany, Spain, France, Greece, Croatia, Hungary, Ireland, Malta, the Netherlands, Poland, Sweden, the United Kingdom, Switzerland and Serbia.

Four countries using this concept as an inadmissibility ground (France, Croatia, Spain and Hungary) expressly require the applicant to be recognised as a refugee and to be able to benefit from that protection.

Safe country concepts

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti