Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(1) and (2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

(1) The objective of the Union’s policy on asylum is to develop and establish a Common European Asylum System (CEAS) that is consistent with the values and humanitarian tradition of the Union and governed by the principle of solidarity and fair sharing of responsibility.

(2) A common policy on asylum based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, is a constituent part of the Union’s objective of establishing progressively an area of freedom, security and justice open to third-country nationals or stateless persons who seek international protection in the Union.

(3) The CEAS is based on common minimum standards for procedures for international protection, recognition and protection offered at Union level and for reception conditions, and it establishes a system for determining the Member State responsible for examining applications for international protection. Notwithstanding the progress made on the CEAS, there are still significant disparities between the Member States as regards the granting of international protection and the form that such international protection takes. Those disparities should be addressed by ensuring greater convergence in the assessment of applications for international protection and by guaranteeing a uniform level of application of Union law, based on high protection standards, across the Union.

(4) In its communication of 6 April 2016 entitled ‘Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe’, the Commission set out priority areas for structurally improving the CEAS, namely the establishment of a sustainable and fair system for determining the Member State responsible for asylum seekers, the reinforcement of the Eurodac system, the achievement of greater convergence in the Union asylum system, the prevention of secondary movements within the Union and the development of a new mandate for the European Asylum Support Office (EASO). That communication is in line with a call by the European Council on 18 February 2016 to make progress towards reforming the Union’s existing framework so as to ensure a humane, fair and efficient asylum policy. That communication also proposes a way forward in line with the holistic approach to migration set out by the European Parliament in its own-initiative report of 12 April 2016 entitled ‘The situation in the Mediterranean and the need for a holistic EU approach to migration’.

(5) EASO was established by Regulation (EU) No 439/2010 of the European Parliament and of the Council (2), and it took up its responsibilities on 1 February 2011. EASO enhances practical cooperation among Member States on asylum-related matters and assists Member States in implementing their obligations under the CEAS. EASO also provides support to Member States whose asylum and reception systems are under particular pressure. However, its role and function need to be further strengthened so as to not only support practical cooperation among Member States but to reinforce and contribute to ensuring the efficient functioning of the asylum and reception systems of the Member States.

(6) Having regard to the structural weaknesses of the CEAS, which were brought to the fore by the large-scale and uncontrolled arrival of migrants and asylum seekers to the Union, and the need for an efficient, high and uniform level of application of Union law on asylum in the Member States, it is necessary to improve the implementation and functioning of the CEAS by building on the work of EASO and further developing it into a fully-fledged agency. Such an agency should be a centre of expertise on asylum. It should facilitate and improve the functioning of the CEAS by coordinating and strengthening practical cooperation and information exchange on asylum among Member States, by promoting Union and international law on asylum and operational standards in order to ensure a high degree of uniformity based on high protection standards as regards procedures for international protection, reception conditions and the assessment of protection needs across the Union, by enabling genuine and practical solidarity among Member States in order to assist the affected Member States in general and applicants for international protection in particular and in accordance with Article 80 of the Treaty on the Functioning of the European Union (TFEU), which stipulates that relevant Union acts are to contain appropriate measures to give effect to the principle of solidarity, in order to apply in a sustainable way the Union rules for determining the Member State responsible for examining applications for international protection and in order to enable convergence in the assessment of applications for international protection across the Union, by monitoring the operational and technical application of the CEAS, by supporting Member States with resettlement and the implementation of Regulation (EU) No 604/2013 of the European Parliament and of the Council (3) and by providing operational and technical assistance to Member States for the management of their asylum and reception systems, in particular those whose systems are subject to disproportionate pressure.

(7) The tasks of EASO should be expanded, and in order to reflect those changes it should be replaced and succeeded by an agency entitled the European Union Agency for Asylum (the ‘Agency’), with full continuity in all of its activities and procedures.

(8) In order to guarantee that it is independent and that it can carry out its tasks properly, the Agency should be provided with sufficient financial and human resources, including a sufficient number of its own staff to form part of asylum support teams and teams of experts for the monitoring mechanism under this Regulation.

(9) The Agency should work in close cooperation with the national authorities responsible for asylum and immigration and other relevant services, drawing on the capacity and expertise of those authorities and services, and with the Commission. The Member States should cooperate with the Agency to ensure that it is capable of fulfilling its mandate. It is important, for the purposes of this Regulation, that the Agency and the Member States act in good faith and exchange information in a timely and accurate manner. Any provision of statistical data is to respect the technical and methodological specifications laid down in Regulation (EC) No 862/2007 of the European Parliament and of the Council (4).

(10) The Agency should gather and analyse information on the situation of asylum in the Union and in third countries insofar as it might have an impact on the Union. That gathering and analysis of information should enable the Agency to provide Member States with up-to-date information including on migratory and refugee flows, and to identify possible risks for Member States’ asylum and reception systems. For that purpose, the Agency should work in close collaboration with the European Border and Coast Guard Agency, established by Regulation (EU) 2019/1896 of the European Parliament and of the Council (5).

(11) No personal data should be stored in databases or published on web portals created by the Agency concerning legal developments in the field of asylum, including relevant case law, unless such data have been obtained from sources that are publicly accessible.

(12) The Agency should be able to deploy liaison officers to the Member States to foster cooperation and to act as an interface between the Agency and the national authorities responsible for asylum and immigration and other relevant services. Liaison officers should facilitate communication between the Member State concerned and the Agency and share relevant information from the Agency with the Member State concerned. They should support the collection of information and contribute to promoting the application and implementation of Union law on asylum, including with regard to respect for fundamental rights. Liaison officers should regularly report on the situation of asylum in Member States to the Agency’s Executive Director, and those reports should be taken into account for the purposes of the monitoring mechanism under this Regulation. Where such reports raise concerns about one or more aspects relevant for the Member State concerned, the Executive Director should inform that Member State without delay.

(13) The Agency should provide the necessary support to the Member States in carrying out their tasks and obligations under Regulation (EU) No 604/2013.

(14) As regards resettlement, the Agency should be able to provide the necessary support to Member States at their request. To that end, the Agency should develop and offer expertise in resettlement in order to support actions on resettlement taken by Member States.

(15) The Agency should assist Member States with the training of experts from all national administrations, courts and tribunals, and national authorities responsible for asylum matters, including through the development of a European asylum curriculum. Member States should develop appropriate training on the basis of the European asylum curriculum with the aim of promoting best practices and common standards in the implementation of Union law on asylum. In that respect, Member States should include core parts of the European asylum curriculum in their training. It is important that those core parts cover issues related to the determination of whether applicants qualify for international protection, interview techniques and evidence assessment. In addition, the Agency should verify and, where necessary, ensure that all experts participating in asylum support teams or forming part of the asylum reserve pool established under this Regulation (the ‘asylum reserve pool’) receive the necessary training before their participation in operational activities it organises.

(16) The Agency should ensure a more structured, up-to-date and streamlined production of information on relevant third countries at Union level. The Agency should gather relevant information and draw up reports providing for country information. For that purpose, the Agency should establish and manage European networks on third-country information so as to avoid duplication and create synergies with national reports. It is necessary that the third-country information refer, inter alia, to the political, religious and security situation and to violations of human rights, including torture and ill-treatment, in the third country concerned.

(17) In order to foster convergence in the assessment of applications for international protection and the type of protection granted, the Agency should, together with the Member States, develop a common analysis on the situation in specific countries of origin (the ‘common analysis’) and guidance notes. The common analysis should consist of an assessment of the situation in relevant countries of origin based on country-of-origin information. The guidance notes should be based on an interpretation of that common analysis developed by the Agency and Member States. When developing the common analysis and guidance notes the Agency should take note of the most recent United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from specific countries of origin, and it should be able to take into account other relevant sources. Without prejudice to the competence of the Member States to decide on individual applications for international protection, Member States should take into account the relevant common analysis and guidance notes when assessing applications for international protection from applicants who originate from third countries for which a common analysis and guidance notes have been developed in accordance with this Regulation.

(18) The Agency should assist the Commission and should be able to assist the Member States by providing information and analysis on third countries regarding the concept of safe country of origin and the concept of safe third country. When providing such information and analysis the Agency should report to the European Parliament and to the Council in accordance with this Regulation.

(19) In order to ensure a high degree of uniformity based on high protection standards as regards procedures for international protection, reception conditions and the assessment of protection needs across the Union, the Agency should organise and coordinate activities that promote the correct and effective implementation of Union law on asylum through tools of a non-binding nature. For that purpose, the Agency should develop operational standards, indicators and guidelines on asylum-related matters. The Agency should enable and promote the exchange of best practices among Member States.

(20) The Agency, in close cooperation with the Commission and without prejudice to the Commission’s responsibility as guardian of the Treaties, should monitor the operational and technical application of the CEAS with the aim of preventing or identifying possible shortcomings in the asylum and reception systems of the Member States and of assessing their capacity and preparedness to manage situations of disproportionate pressure in order to enhance the efficiency of those systems (the ‘monitoring mechanism’). The monitoring mechanism should be comprehensive, and it should be possible to base the monitoring on information provided by the Member State concerned, the information analysis on the situation of asylum developed by the Agency, on-site visits, including short-notice visits, case sampling and information provided by intergovernmental organisations or bodies, in particular the UNHCR, and other relevant organisations on the basis of their expertise. The Executive Director should provide for the possibility for the Member State concerned to comment on the draft findings of a monitoring exercise carried out as part of the monitoring mechanism and, subsequently, on the draft recommendations. The Executive Director should draw up the draft recommendations in consultation with the Commission. After taking into account the comments of the Member State concerned, the Executive Director should submit to the Management Board the findings of the monitoring exercise and the draft recommendations, outlining the measures to be taken by the Member State concerned, including with the assistance of the Agency, as necessary, to address any shortcomings or issues of capacity and preparedness. The draft recommendations should specify the time limits within which those measures should be taken. The Management Board should adopt the recommendations. The Member State concerned should be able to request assistance from the Agency for the implementation of the recommendations and can request specific financial support from relevant Union financial instruments.

(21) The monitoring exercise should take place in close collaboration with the Member State concerned, including as regards on-site visits and case sampling, where necessary. It is appropriate that case sampling consist of a selection of positive and negative decisions that cover a particular period of time and are relevant to the aspect of the CEAS that is being monitored. It is appropriate to base case sampling on objective indications, such as recognition rates. Case sampling is without prejudice to the competence of the Member States to decide on individual applications for international protection and is to be carried out in a manner that fully respects the principle of confidentiality.

(22) In order to focus the monitoring exercise on particular elements of the CEAS, the Agency should have the possibility to monitor thematic or specific aspects of the CEAS. Where the Agency initiates a monitoring exercise on thematic or specific aspects of the CEAS, it should ensure that all Member States are subject to that thematic or specific monitoring. However, in order to avoid duplication of the Agency’s work, it would not be appropriate to subject a Member State to a monitoring exercise on thematic or specific aspects of the CEAS in a year during which the operational and technical application of all aspects of the CEAS of that Member State is being monitored.

(23) Where the Member State concerned does not take the measures necessary to implement the recommendations adopted by the Management Board within the set time limit and, therefore, does not address the identified shortcomings in its asylum and reception systems or any issues of capacity and preparedness which result in serious consequences for the functioning of the CEAS, the Commission should, on the basis of its own assessment, adopt recommendations addressed to that Member State identifying the measures needed to remedy the situation, including, where necessary, specific measures to be taken by the Agency in support of that Member State. It should be possible for the Commission to organise on-site visits to the Member State concerned in order to verify the implementation of the recommendations. In its assessment, the Commission should consider the seriousness of the identified shortcomings in relation to their consequences for the functioning of the CEAS. Where, following the expiry of the time limit set in the recommendations, the Member State has not complied with the recommendations, the Commission should be able to make a proposal for a Council implementing act identifying measures to be taken by the Agency to support that Member State and requiring that Member State to cooperate with the Agency in the implementation of those measures.

(24) When setting up teams of experts for carrying out the monitoring exercise, the Agency should invite an observer from the UNHCR. The absence of such an observer does not prevent the teams from performing their tasks.

(25) To facilitate and improve the proper functioning of the CEAS and to assist Member States in implementing their obligations within the framework of the CEAS, the Agency should provide Member States with operational and technical assistance, in particular where their asylum and reception systems are subject to disproportionate pressure. Such assistance should be provided on the basis of an operational plan and through the deployment of asylum support teams. Asylum support teams should consist of experts from the Agency’s own staff, experts from Member States, experts seconded by Member States to the Agency or other experts not employed by the Agency with demonstrated relevant knowledge and experience in line with operational needs. It is important that the Agency only make use of such other experts not employed by it where it cannot otherwise ensure the proper and timely exercise of its tasks due to the lack of available experts from the Member States or the Agency’s own staff.