Changes from report parliamentary committee draft to plenary report

Change 18

ChangedArticle 2 – paragraph 1 – point 9 – point b: (b) the minor children of the couples referred to in point (a) or of the beneficiary of international protectionprotection, the adult children for whom they have charge, regardless of whether they were born in or out of wedlock or adopted as defined or recognised under national law;law, as well as the children for whom they hold parental responsibility;

Change 19

RemovedThe Rapporteur does not believe that the married or unmarried status of children should be a factor when determining the members of a family.

AddedArticle 2 – paragraph 1 – point 9 – point c: (c) where the beneficiary of international protection is a minor, the father, mother or another adult responsible for that beneficiary, whether by law or by practice of the Member State concerned;

Change 20

ChangedArticle 2 – paragraph 1 – point 910: –(10) point‘minor’ c:means (c)a wherethird-country thenational beneficiaryor isstateless aperson minor,below the father,age motherof or18 anotheryears. adultThis responsibleis forto thebe beneficiary,assessed, whetherwhere byapplicable, lawat the time his or byher practiceapplication offor theinternational Memberprotection Stateis concerned;made;

Change 21

RemovedThe Rapporteur does not believe that the married or unmarried status of children should be a factor when determining who the family members are.

AddedArticle 2 – paragraph 1 – point 15: deleted

RemovedArticle 2 – paragraph 1 – point 9 – point c a (new): (ca) the sibling or siblings of the beneficiary of international protection;

AddedArticle 2 – paragraph 1 – point 16: (16) ‘determining authority’ means any judicial, quasi-judicial or administrative body in a Member State responsible for examining applications for international protection and competent to take decisions at first instance in such cases;

RemovedThis indent is taken from the definition of "family members" proposed in the new recast Dublin Regulation.

Article 2 – paragraph 1 – point 19: (19) 'guardian' means a person or an organisation appointed by the competent bodies in order to assist and represent an unaccompanied minor in procedures provided for in this Regulation with a view to safeguarding the best interests of the child and his or her well-being and exercising legal capacity for the minor where necessary.

Change 22

RemovedHarmonisation ofdefinitions and reference to UNCRC, Art. 3.

AddedArticle 3 – paragraph 2 – subparagraph 1 a (new): Without prejudice to paragraph 1, Member States shall keep the possibility to grant family members the refugee status or subsidiary protection status in accordance with their national laws, regardless of whether they are subject to a risk of persecution or serious harm, in order to establish a uniform legal status within the family.

Change 23

ChangedArticle 4 – paragraph 1: 1. The applicant shall submit all the elements available to him or her which substantiate the application for international protection. The applicant shall cooperate with the determining authority andthroughout the applicantprocedure, shallincluding cooperateduring throughoutthe assessment of the procedure.relevant elements of the application. The applicant shall remain present and available throughout the procedure. Where, due to extenuating circumstances, the applicant is not available at any point during the procedure, those extenuating circumstances shall be taken into account when any decision is taken concerning the applicant or his or her application for international protection.

Change 24

RemovedIn line with the case-law of the Court of Justice of the European Union, it is incumbent on the determining authorities to cooperate with the applicant when determining the relevant elements of the case. This is also the wording used in Article 4(1) of the existing Directive.

AddedArticle 4 – paragraph 2: 2. The elements referred to in paragraph 1 shall consist of the applicant’s statements and all the documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous applications [for international protection and results of any resettlement procedure, travel routes, travel documents and the reasons for applying for international protection.

Article 4 – paragraph 3: 3. The determining authority shall assess the relevant elements of the application for international protection in accordance with Article 33 of Regulation (EU)XXX/XXX [Procedures regulation.]

Change 25

AddedArticle 4 – paragraph 4: 4. The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, shall be considered a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm.

AddedArticle 4 – paragraph 5 – introductory part: 5. Where aspects of the applicant’s statements are not supported by documentary or other evidence, no additional evidence shall be required in respect of those aspects and the applicant shall be granted the benefit of the doubt where the following conditions are met:

Article 4 – paragraph 5 – point a: (a) the applicant has made a genuine effort to substantiate his or her application for international protection;

Change 26

AddedArticle 4 – paragraph 5 – point b: (b) all relevant elements at the applicant's disposal have been submitted

Article 4 – paragraph 5 – point d: deleted

Change 27

RemovedThere are many reasons why an applicant might not seek international protection immediately. Whether the applicant has applied for international protection at the earliest moment possible should not determine the weight attached to an applicant’s statements

AddedArticle 5 – paragraph 3: 3. Provided that any decision on the application for international protection taken is fully in line with the Geneva Convention, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union, an applicant who files a subsequent application in accordance with Article 42 of Regulation (EU)XXX/XXX [Procedures regulation] may be refused refugee status or subsidiary protection status if the risk of persecution or the serious harm is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin for the sole purpose of being granted international protection. This shall exclude any circumstances independent of the applicant's will, including but not limited to his or her sexual orientation and religious beliefs, which the applicant may have concealed to various degrees while in the country of origin.

RemovedArticle 5 – paragraph 3: 3. Provided that any decision taken is fully in line with the Geneva Convention, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union, an applicant who files a subsequent application in accordance with Article 42 of Regulation (EU)XXX/XXX [Procedures regulation] may be refused refugee status or subsidiary protection status if the risk of persecution or the serious harm is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin.

AddedArticle 6 – paragraph 1 – introductory part: Actors of persecution or serious harm can be:

RemovedThe case-law of the Court of Justice of the European Union makes it clear that the applicant is not required to act discreetly, abstain from religious practice or conceal their sexual orientation to be entitled to international protection. If international protection is to be refused, then any such refusal must be fully in line with the Geneva Convention and with the case-law of the CJEU and the ECtHR.

AddedArticle 7 – paragraph 1 – introductory part: 1. Protection against persecution or serious harm can only be provided by:

Change 28

ChangedArticle 7 – paragraph 1 – point b: (b) parties or organisations,organisations which are mandated by the State, including internationalState organisations,and controllingcontrol the State or a substantial part of the territory of the State,State.

Change 29

RemovedArticle 1D of Geneva convention also applies to persons who receive protection by the UNHCR which has to be mandated by the State in order to be present on the territory of that State. Furthermore, non-State actors should not be considered as actors of protection, unless they have been mandated by the State specifically to do so, as they cannot be held accountable under international law, they could only provide protection which is temporary and limited in its effectiveness.

AddedArticle 7 – paragraph 1 – subparagraph 2: as long as they are willing and able to provide full, effective and durable protection against persecution or serious harm.

RemovedArticle 7 – paragraph 1 – subparagraph 2: as long as they are willing and able to provide protection in accordance with paragraph 2.

AddedArticle 7 – paragraph 2: deleted

RemovedProtection for the applicant must be demonstrated in practice and in that particular case, and not merely in principle or in general terms. It should be demonstrated by the competent authority that the protection is not only temporary and limited in its effectiveness.

AddedArticle 7 – paragraph 3: 3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as referred to in paragraph 2, determining authorities may take into account any guidance provided in relevant Union law, in particular available Union level country of origin information and the common analysis of country of origin information referred to in Articles 8 and 10 of Regulation (EU) No XXX/XX [ Regulation on the European Union Agency for Asylum ].

Article 8 – paragraph 1 – introductory part: 1. As part of the assessment of the application for international protection, and provided that the State or agents of the State are not the actors of persecution or serious harm, the determining authority may determine that an applicant is not in need of international protection if he or she can safely and legally travel to and gain admittance to a part of the country of origin and can reasonably be expected to settle there and if, in that part of the country, he or she:

Change 30

RemovedThe internal protection alternative should not be relied upon by Member States in circumstances where the persecution or serious harm emanates from the State or agents associated with the State. In addition, as the application of the concept of internal protection varies greatly among Member States and as it is not uniformly used, it should remain optional for Member States.

AddedArticle 8 – paragraph 1 – point b: (b) has access to full, effective and durable protection against persecution or serious harm.

Change 31

ChangedArticle 8 – paragraph 2: 2. TheWithout prejudice to Article 4(1), the burden of demonstrating the availability of internal protection shall rest on the determining authority. That shall not preclude the applicant from presenting evidence to rebut any finding by the determining authority that internal protection is available. The applicant shall not be required to prove that, before seeking international protection, he or she has exhausted all possibilities to obtain protection in his or her country of origin.

Change 32

RemovedThere are no good reasons why the decision on availability of internal protection should come after the determining authority has already decided that the applicant would otherwise be in need of protection. It should be part of the overall assessment of the applicant’s need for protection. In addition, while the Rapporteur welcomes the burden of proof being placed clearly on the determining authority, this should not preclude the applicant from rebutting any finding that internal protection would be available to him or her.

AddedArticle 8 – paragraph 4: 4. When considering the general circumstances prevailing in that part of the country which is the source of the protection as referred to in Article 7, the accessibility, effectiveness and durability of that protection shall be taken into account. When considering personal circumstances of the applicant, health, age, gender, sexual orientation, gender identity, ethnic origin, membership of a national minority and social status shall in particular be taken into account together with an assessment of whether living in the part of the country of origin regarded as safe would not impose undue hardship on the applicant.

AddedArticle 8 – paragraph 4 a (new): 4a. Any decision not to provide international protection to a minor, whether accompanied or not, based on the availability of internal protection, shall be preceded by a formal procedure to determine the best interests of the minor. Where the applicant is an unaccompanied minor, the availability of appropriate care, custodial arrangements and durable solutions for his or her development should be part of the assessment of whether the protection is effectively guaranteed within the area where internal protection is presumed to exist.

AddedArticle 9 – paragraph 1 – point a: (a) it is sufficiently serious by its nature or repetition as to constitute a severe violation of human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

AddedArticle 9 – paragraph 2 – point a: (a) acts of physical or mental violence, including acts of sexual violence or trafficking for sexual exploitation;

AddedArticle 9 – paragraph 2 – point e: (e) prosecution or punishment for refusal to perform military service on moral, religious or political grounds or due to belonging to a particular ethnic group or holding a particular citizenship and, in particular, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2);

AddedArticle 9 – paragraph 2 – point f: (f) acts of a gender-specific or child-specific nature, such as under-age recruitment, genital mutilation, forced marriage, child trafficking and child labour, domestic violence, trafficking for sexual exploitation, and violations of economic, social and cultural rights.

Article 10 – paragraph 1 – point d – introductory part: (d) the concept of membership of a particular social group shall include, in particular, a group where:

Article 10 – paragraph 1 – point d – indent 1: - members share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or

Change 33

RemovedThe two indents describe two ways in which a particular social group might exist. The indents should therefore be alternative and not cumulative.

AddedArticle 10 – paragraph 1 – point d – subparagraph 2: depending on the circumstances in the country of origin, the concept shall include a group based on a common characteristic of sexual orientation and gender related aspects, including gender identity, gender expression and sex characteristics, and the fact of having been a victim of trafficking for sexual exploitation. Those aspects shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group;

RemovedArticle 10 – paragraph 1 – point d – subparagraph 2: depending on the circumstances in the country of origin, the concept shall include a group based on a common characteristic of sexual orientation and gender related aspects, including gender identity, gender expression and sex characteristics. Those aspects shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group;

RemovedLinking sexual orientation to acts considered criminal is out of place and should be removed. Sexual orientation in legislation can never mean acts considered to be criminal and has no legal added-value since the concept of sexual orientation is clearly defined in European treaties and EU law, and thus also recognised in national law.

Article 10 – paragraph 3: 3. When assessing if an applicant has a well-founded fear of being persecuted, the determining authority cannot reasonably expect an applicant to behave discreetly or abstain from certain practices, where such behaviour or practices are inherent to his or her identity or conscience, to avoid the risk of persecution in his or her country of origin.

Change 34

RemovedThe term 'identity' is somewhat restrictive. It may be a person's conscience that leads him or her to have a well-founded fear of being persecuted.

AddedArticle 11 – paragraph 2 – point b: (b) shall take into account precise and up-to-date information obtained from all relevant sources, including Union level country of origin information and common analysis of country of origin information referred to in Articles 8 and 10 of the Regulation (EU) No XXX/XX [Regulation on the European Union Agency for Asylum] or information and guidance issued by the United Nations High Commissioner for Refugee.

Change 35

ChangedArticle 12 – paragraph 1 – introductory part: 1. A third-country national or a stateless person shall be excluded from being a refugee under the scope of this Regulation if:

Change 36

RemovedArticle 1(D) of the Geneva Convention does not deny the status of ‘refugee’ to certain categories of persons. It simply deprives them of the rights and benefits of the Convention. As this Article is also inspired by Article 1(D) of the Geneva Convention, the same approach should be taken in this Regulation.

AddedArticle 12 – paragraph 2 – point c: (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations, including convictions on the grounds of participation in the activities of a terrorist group.

AddedArticle 12 – paragraph 2 – subparagraph 1 a (new): The determining authority may apply this paragraph only after it has undertaken, for each individual case, an assessment of the specific facts brought to its attention, with a view to determining whether there are serious reasons for considering that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for refugee status, fall within the scope of points (a), (b) or (c) of the first subparagraph.

AddedArticle 12 – paragraph 3 a (new): 3a. Paragraph 2 shall not apply to minors.

Article 12 – paragraph 5: deleted / (deleted) / (deleted)