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?”

Asylum Procedures in the European Union: A Method in the Madness?
1
Contact information:
Student:
Elisabeth Catherina Vos
s0962570
@: ec.vos.3@umail.leidenuniv.nl / ec.vos.89@outlook.com
T: +31 6 129 39 559
Supervisor:
Dr. Giovanni Gruni
@: g.gruni@law.leidenuniv.nl
T: +31 71 527 1578
Second reader:
Dr. Darinka Piqani
@: d.piqani@law.leidenuniv.nl
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

6
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.

9
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.

12
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 (…)”

15
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.

16
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.

17
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

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
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
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
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
BIBLIOGRAPHY
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35
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36
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37
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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

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