Practical Guide:

Access to the Asylum Procedure

Identification

Information

Protection
Manuscript updated in March 2023 to reflect the European Asylum Support
Office’s transition to the European Union Agency for Asylum (EUAA).

Revised second edition

Neither the European Border and Coast Guard Agency (Frontex) nor the EUAA nor any
person acting on behalf of Frontex or the EUAA is responsible for the use that might be
made of the information contained within this publication.

Luxembourg: Publications Office of the European Union, 2023

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© European Union Agency for Asylum (EUAA), 2023

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 Practical Guide:
Access to the Asylum Procedure

2023 EN
About the guide
Why was this guide created?
The mission of the European Union Agency for Asylum (EUAA) is to facilitate and support the
activities of European Union Member States and the associated countries (EU+ countries (1)) in the
implementation of the Common European Asylum System. According to its overall aim to promote
a correct and effective implementation of the Common European Asylum System and to enable
convergence, the EUAA develops common operational standards and indicators, guidelines and
practical tools.

How was this guide developed?

This guide was jointly developed by experts from the EU+ countries, the EUAA and the European
Border and Coast Guard Agency (Frontex). Valuable input has come from the European Commission,
European Union Agency for Fundamental Rights and United Nations High Commissioner for
Refugees. Before its finalisation, a consultation on the guide was carried out with all EU+ countries
through the EUAA Asylum Processes Network.

Who should use this guide?

This guide is primarily intended for first contact officials.

How to use this guide.

This guide is structured in four parts, corresponding to four chapters. Chapter 1 informs about
the enhanced role of first-contact officials in access to the asylum procedure. Chapter 2 provides
guidance on how to be prepared in order to recognise a potential applicant for international
protection. Chapter 3 provides guidance on indications that someone may wish to apply for
international protection provides guidance on the information that has to be provided to the applicant
for international protection during access to the asylum procedure and Chapter 4 provides guidance
on the follow up steps.

This Practical Guide on Access to the Asylum Procedure is based on the standards of the Common
European Asylum System. It should be seen as a complement to other available EUAA tools, in
particular, the Practical Guide on Information Provision – Access to the asylum procedure (2) and
the Practical Guide on Registration: Lodging of applications for international protection (3). At the
same time, its consistency with other tools has been a primary consideration, especially in relation
to the EUAA training module on communication (4).

(1) The 27 EU Member States, complemented by Iceland, Liechtenstein, Norway and Switzerland.
()
2
EUAA, Practical Guide on Information Provision – Access to the asylum procedure, February 2023.
()
3
EASO, Practical Guide on Registration – Lodging of applications for international protection, December 2021.
(4) EUAA, ‘Introduction to communication for asylum and reception practitioners’ training module, 2022.
 About the guide 3

How does this guide relate to national legislation and

practice?
This is a soft convergence tool. It reflects the commonly agreed operational standards of EU+
countries. It is not legally binding.

Disclaimer

This guide was prepared without prejudice to the principle that only the Court of Justice of the European
Union can give an authoritative interpretation of EU law

Disclaimer

This guide was prepared without prejudice to the principle that only the Court of Justice of the
European Union can give an authoritative interpretation of EU law
 Introduction 5

Introduction
As you are often the first point of contact for third-country nationals reaching your country, and
in many cases also the EU as whole, you play a crucial role in facilitating effective access to
international protection. This can be achieved by proactively identifying those who may be in need
of protection, providing them with relevant information on the right to apply for asylum, referring
them to appropriate procedures and other assistance and procedural guarantees provided to such
persons.

This guide provides information on the core obligations of first-contact officials and the rights of
persons in need of international protection in the first-contact situation. It will steer you through
the process of identification of persons who may wish to apply for protection and the provision of
relevant procedural guarantees and support.

The guide is divided into the following four parts.

 The enhanced role of first-contact officials in access to the asylum procedure: comprising
of an introduction to the context of mixed migration flows and overview of relevant legal
background, including on fundamental rights.

 How to be prepared in order to recognise a potential applicant for international protection:

outlining the necessary preconditions regarding the behaviour and mind-set of the first-
contact officials in order to be able to identify persons who may wish to apply for international
protection.

 Indications that someone may wish to apply for international protection: providing guidance
on which elements to take into account in order to better identify a person who may wish to
apply for international protection.

 What to do next: providing guidance for situations in which a person who may wish to apply
for international protection is identified and what to do if an application has been made. It also
addresses the situations in which a person who may have protection needs does not want to
apply for international protection.

Be aware that the EU asylum acquis stipulates that officials who first come into contact with persons
seeking international protection, in particular officials carrying out the surveillance of land or
maritime borders or conducting border checks, should receive relevant information and necessary
training on how to recognise and deal with applications for international protection.
6 ACCESS TO THE ASYLUM PROCEDURE

Contents

Introduction5

The enhanced role of first-contact officials in access

to the asylum procedure 8

Key role of first-contact officials 8

Access to the asylum procedure 10

How to be prepared in order to recognise a potential applicant

for international protection 13

Be proactive  13

Observe 14

Pay attention to vulnerabilities 14

Be open-minded 16

Be respectful 16

Do not discriminate  16

Be non-judgmental  16

Be an active listener 17

Use an appropriate and sensitive communication style 17

Pay attention to your body language 18

Indications that someone may wish to apply

for international protection 20

Who may wish to make an application? 20

Non-exhaustive list of indications 21

Who the person is and where she/he comes from 22

What the person says  23

What you can observe (appearance and behaviour) 23

What to do next 25

Provide the information 25

Recognise the making of an application for international protection 26

What to do next if a person applies for international protection 26

What to do next if a person who may have protection needs

does not want to apply for international protection 28

Access to the Asylum Procedure 29

Annex. Legal references 30

8 ACCESS TO THE ASYLUM PROCEDURE

The enhanced role of first-contact

officials in access to the asylum
procedure

Key role of first-contact officials

The growing scope and complexity of migration movements creates a challenging environment
at the external borders of the EU. Persons with different motives and objectives move alongside
each other within mixed migration flows using the same routes and means of transport. Such
journeys may be long, hard and life-threatening, often organised in an irregular manner. Hidden in
trucks, small containers or crammed on unseaworthy boats, people often travel in harsh and unsafe
conditions, exposed to danger, hunger, exploitation and abuse by smugglers and traffickers. During
the journey they may lose family members or relatives. There are countless reports of persons being
exploited, mistreated, raped and forced into prostitution or criminality.

Being often the first point of contact for third-country nationals reaching your
country, and in many cases the EU as a whole, you have a crucial role in the
timely identification of those persons, addressing their basic needs, guaranteeing their
fundamental rights, providing them with information and directing them to adequate
procedures and to the competent authorities.

Alongside people whose reasons for travelling are not protection-related are those who have
protection needs that require immediate action. These may include persons in need of international
protection as well as victims of human trafficking, torture, rape or other serious forms of violence,
separated or unaccompanied children, women at risk and other vulnerable persons.

Mixed migration
flows

Persons who
may be in need
of international
protection

Applicants for
international
protection

Beneficiaries
of international
protection
 ROLE OF FIRST-CONTACT OFFICIALS 9

Fundamental rights

Any measure taken at border-crossing points and in detention facilities should be proportionate
to the objectives pursued, non-discriminatory and should fully respect key fundamental rights,
such as:

 Human dignity that stipulates that a human being has an innate right to be valued,
respected, and to receive ethical treatment.

 Right to life prohibiting the death penalty or execution and stipulating duty to take
preventive measures in situations where there is a real and immediate risk to the life of
an individual.

 Prohibition of torture that stipulates that no one can be subjected to torture or to

inhuman or degrading treatment or punishment.

 Principle of non-refoulement referring to the obligation of states to refrain from

expelling or returning a person in any manner whatsoever to a situation where they may
face persecution and/or torture, inhuman or degrading treatment or punishment.

 Right to asylum that gives everyone the right to seek and to enjoy protection from
persecution in other countries. Member States must ensure that each person, whether
adult or child, has the right to make an application for international protection on their
own behalf or through their relative or representative.

 Non-discrimination that prohibits any unfair treatment or arbitrary action or distinction

based on any ground such as sex, race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation.

Every person is entitled to these rights, regardless of whether they have explicitly applied
for international protection or not.

Human
dignity

Non-dis- Right
crimination to life

Person in
front of you

Right to Prohibition
asylum of torture

Non-
refoulement

Member States must ensure that the authorities respect the confidentiality principle, as defined
in national law and imposed by EU law, in relation to any information they obtain during their
work. Information regarding the fact that a person has applied for international protection cannot
be disclosed to the authorities of the person’s country of origin.
10 ACCESS TO THE ASYLUM PROCEDURE

Non-refoulement

Non-refoulement refers to the obligation of Member States to refrain from expelling or

returning any individual in any manner to the frontiers of territories or to any place where they
may face persecution as well as inhumane or degrading treatment or punishment, including
torture, even if they are in an irregular migratory situation. In the asylum context, the principle
of non-refoulement entails a requirement to grant individuals seeking international protection
access to the territory and to fair and efficient asylum procedures to determine if the person
should be granted protection or not.

Who is bound? The non-refoulement obligation is binding on all organs of a state as well as
any other person or entity acting on its behalf, including first-contact officials.

What does it include? The prohibition of refoulement to a danger of persecution under

international refugee law is applicable to any form of forcible removal, including deportation,
expulsion, extradition, informal transfer or “‘renditions”’, and non-admission at the border. This
includes also indirect refoulement, which is the return of a person to a third country where the
risk of refoulement exists. A reliable assessment as to the risk of indirect refoulement must be
undertaken in each individual case, prior to removal to a third country. No asylum seekerapplicant
should be returned to a third country for determination of the claim without sufficient guarantees in
each individual case. These guarantees include that the person will be readmitted to that country,
will enjoy effective protection against refoulement, will have the possibility to seek and enjoy
asylum and will be treated in accordance withaccording to accepted international standards.

Access to the asylum procedure

In order to ensure the respect of the principle of non-refoulement and for the right to asylum to be
effective, every person who may be in need of international protection must be ensured access to
the asylum procedure.

Many persons who may be in need of

international protection do not know their
Remember that in most
rights and obligations and do not actively seek
scenarios people will have
asylum in the country in which they arrive. As
the chance to express their need for
a first point of contact for persons present at
protection and their special needs for
the borders, you have a vital role in facilitating
the first time to you.
access to international protection by proactively
identifying persons who may wish to apply for
international protection, providing them with
relevant information on the right to apply for asylum and referring them to appropriate procedures.

Measures taken at the border-crossing points and in detention facilities mark one of the primary
moments where the special needs of vulnerable persons may be declared or detected. As a first-
contact official, you also have the responsibility to identify the special needs of vulnerable persons
and refer them for further assessment and/or support to national authorities.

Related EUAA publication

In order to better identify the special needs of vulnerable persons you may use the EUAA
practical tool on the identification of persons with special needs (IPSN) available at:
https://ipsn.euaa.europa.eu
 ROLE OF FIRST-CONTACT OFFICIALS 11

Your role in ensuring access to the asylum procedure, stipulated in Article 3(a) of the Schengen
Border Code (5), has been further enhanced by the EU asylum acquis, especially by the recast
asylum procedures directive (APD (recast)), applicable as of 20 July 2015 (6). The APD (recast)
introduces, among others, two key provisions that have direct effect on your daily work.

!
Article 8 APD (recast) requires you to provide information about the
possibility to apply for international protection when there are indications
that a person held in detention facilities or present at external border
crossing points may wish to do so. In practice it means that you have to be
proactive in identifying such a person, inform them about the right to apply
for asylum and advise them as to how to make the application.

!
Article 6 APD (recast) requires you to refer a person who has expressed an
intention to apply for international protection (i.e. who made an application
for international protection) to the asylum procedure by informing them
as to where and how the application for international protection may be
lodged.

The APD (recast) lays down the three separate steps of the access to procedure, clearly
distinguishing between the making, registering and lodging of an application for international
protection and their position in respect of the asylum procedure.

Related EUAA publication

For a detailed description of the three stages of access to the asylum procedure, consult
the EASO, Practical Guide on Registration — Lodging of applications for international
protection, Section I. ‘Three stages of access to the asylum’ (pp. 10-14).

making registering lodging Start of

applications application application procedure

Be aware that people may express an intention to apply for international

protection in a variety of ways. Any expression of fear of persecution or
serious harm if refused entry, expressed verbally or in writing, qualifies as such
a request. It is not necessary to use the exact word ‘asylum’ or ‘refugee’. If you are in
doubt, you should assume that a protection request has been made.

(5) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on
the rules governing the movement of persons across borders (Schengen Borders Code) (codification) (OJ L 77/1,
23.3.2016).
(6) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for
granting and withdrawing international protection (recast), (OJ L 180/60, 29.6.2013).
12 ACCESS TO THE ASYLUM PROCEDURE

Making an application for international protection means the act of expressing, in any way and
to any authority, one’s wish to obtain international protection. Anyone who has expressed their
intention to apply for international protection is considered to be an applicant with all the rights and
obligations attached to this status.

After an application for international protection has been made, it must be registered by the
competent authorities within the given timeframe – no later than three working days if the application
has been made to an authority responsible for registering it or no later than six working days in case
the application has been made to other authorities, such as the police, border guards, immigration
authorities and/or personnel of detention facilities. Under exceptional circumstances, when a large
number of simultaneous applications make it very difficult in practice to respect the given time limits,
this can be extended to 10 working days

Lodging an application for international protection requires the applicant to provide information/
documents to complete the file created at the time of registering the application. Lodging of the
application triggers the start of the first-instance examination. Member States may set rules on how
and where lodging is to take place.

Be aware that your task is to identify persons who may wish to apply for
international protection, provide them with information and refer them to the
appropriate authority. You cannot deny anyone access to the asylum procedure. Prompt
and efficient referral to the competent authorities is key to ensure the right to asylum
is guaranteed in practice. It is not your responsibility to assess whether the person in
front of you has protection-related needs and whether they can be granted international
protection or not.
 How to be prepared in order to recognise a potential applicant for international protection 13

How to be prepared in order to

recognise a potential applicant for
international protection

Persons in need of protection are likely to approach a person in uniform and to establish contact
with them. However, many of them may have been ill-treated by officials in their country of origin
or in other countries during their journey. Therefore, in many cases, they will not approach you
directly and it is your role to create an atmosphere of trust and proactively identify a person who
may wish to apply for international protection and refer those who can be understood to be seeking
protection.

This section provides guidance on how to be prepared in order to fulfil your obligations to identify
those possibly in need of protection, admit them to the EU territory, provide them with information
and refer them to the national asylum procedure.

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Be proactive
Being proactive means focusing your efforts on elements you can control or which you can
influence. A proactive approach will help you to fulfil your duties.

Border guards and first-contact officials have a responsibility to be proactive in ensuring effective
access to the asylum procedure. They have a duty to identify persons who may wish to apply for
international protection and inform them about the right to apply for asylum and provide them with
the information on how to make an application. They also have to inform persons who made an
application for international protection on how to lodge their application.

Are you proactive or reactive?

A proactive person uses proactive language (I can, I will, I prefer, etc.) and focuses efforts on
their area of influence, on things they can control and influence.

A reactive person uses reactive language (I can’t, I have to, if only, etc.) and focuses their
efforts on the area of concern, on things over which they have little or no control.
14 ACCESS TO THE ASYLUM PROCEDURE

Observe
Observation is not the same as just ‘looking at things’. It is an active reception of information that
helps you to assess people and circumstances quicker and more precisely. It requires you to keep
your eyes and ears open, to obtain as much information as possible and remember it.

 Pay close attention to everything around you. Force yourself to notice, as much as you can,
from the routine to the unusual and try to remember it. Focus on differences, distinctions,
unusual situations and circumstances. Awareness of your impressions is a key part of being a
good observer.

 Look for indications that a person may wish to apply for international protection.

 Pay close attention to body language – facial expressions, gestures, eye contact, postures
and the tone of voice – of the persons you observe. The ability to understand and use body
language can help to connect with other people and to identify their needs. However, keep
in mind that the meaning of body language and non-verbal signals can be different across
countries and cultures. Therefore it is important to avoid misinterpretation and to refrain from
hasty interpretation.

Pay attention to vulnerabilities

Be aware that the person in front of you may be vulnerable and have special needs that require
particular attention and immediate action. It is your task to identify the special needs of vulnerable
persons and refer them for further assessment and/or support.

Border crossings and detention facilities are one of the primary locations where the special needs
of vulnerable persons may be declared or detected. However, be aware that they may not be
immediately visible and may only manifest at later stages.

Make sure that any measure taken at border-crossing points or in detention facilities does not
affect the specific protection afforded under international law to persons in need of international
protection and to vulnerable persons, such as women and girls at risk, including pregnant women;
children, including unaccompanied and separated children; victims of trafficking in human beings;
persons who have been subjected to torture, rape or other serious forms of violence; and persons
with disabilities.

 Record vulnerability and special needs as soon as possible according to national practice and
communicate this information to the relevant stakeholders in order to provide the necessary
guarantees and support.

 Make sure that you are aware of your national referral mechanisms and procedures and
have at hand the contact information of responsible institutions according to national practice,
including specialised child protection services, the United Nations High Commissioner for
Refugees (UNHCR) and other organisations providing legal advice or other counselling to
applicants.

 Adjust your approach, language and communication style according to the needs of the
person. Your ability to build trust and communicate with the person is essential, both to be able
to identify possible indications of vulnerability and to gather accurate information.

 If needed, ensure necessary medical and/or other adequate assistance according to national
legislation and practice.
 PREPARATION TO RECOGNISE A POTENTIAL APPLICANT 15

Related EUAA publication

For more information on ensuring access to the asylum procedure for vulnerable persons,
consult the EASO, Practical Guide on Registration — Lodging of applications for international
protection, Section V. ‘Identification and referral’, B. Vulnerable applicants’ (pp. 48-55).

Related EUAA tool

Check out the Tool for the Identification of Persons with Special Needs, an
interactive online EUAA tool which allows the user to identify potential special needs in
the context of the asylum procedure and reception.

Unaccompanied or separated children

In line with the relevant international and European legal standards and legislation, a child is
any human being below the age of 18 years unless, under the law applicable to the child, the
age of majority is attained earlier. Even if you are not sure if the person who claims to be a child
really is, they must still be referred to the responsible authority for age assessment pursuant to
national legislation and practice and according to EU law.

Children are inherently vulnerable and it is very important to be particularly sensitive

to their special needs, especially in cases where they are unaccompanied or separated.
Unaccompanied and separated children should be identified and referred to the responsible
authorities as quickly as possible according to national legislation and practice. According to
the EU law, specific guarantees should be ensured in the case of unaccompanied children,
in particular the appointment as soon as possible of a representative. Make sure that you are
aware of the national referral procedures and have the contact details of specialised child
protection services and other responsible stakeholders at hand.

Always remain observant and pay attention to possible indications of trafficking. Is there
anything unusual about the situation you see? Is the child quiet, detached/distant, incoherent,
scared, upset? Is a person waiting for the child or is the child looking at another adult? At any
time, if there is a reasonable suspicion that the child may be at risk of trafficking, or is otherwise
in need of protection, the referral mechanism and initial investigation applies immediately
according to the national legislation and practice.

Remember to communicate in a child-friendly manner, taking into account the age and maturity
of the child. Keep them informed of what is happening and what is going to happen. Ensure
access to basic services.

The best interests of the child must be a primary consideration in all actions and decisions
concerning the child. As a general rule, children should not be separated from their
accompanying parents or relatives, unless there is reasonable suspicion that it is not in their
best interests to stay with them. In such cases, specialised child protection services should be
informed immediately according to the national legislation and practice.

The principle of non-refoulement must be applied. If the return applies, the safeguards for
children stipulated in Article 10 of the return directive (7) must be observed.

(7) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards
and procedures in Member States for returning illegally staying third-country nationals, (OJ L 348/98, 24.12.2008).
16 ACCESS TO THE ASYLUM PROCEDURE

Related EUAA publication

For more information on ensuring access to the asylum procedure for unaccompanied children,
consult the EASO, Practical Guide on Registration — Lodging of applications for international
protection, Section I. ‘Identification and referral’, C. ‘Unaccompanied children’ (pp. 55-60).

Be open-minded
Categorising people you have just met and using the usual methods to deal with repeated tasks is a
normal reaction and a process most of us use. It is, however, important to be aware of it and always
stay open-minded, regardless of our previous personal and professional experience. Be aware that
anyone can have protection needs, no matter how they look or acts.

Be open-minded. Being open-minded means being flexible and adaptive to new and different
experiences, procedures and challenges. People who are open-minded have less prejudice and are
more likely to change their opinions when presented with new facts.

Be respectful
You work in a complex and challenging environment. On a daily basis you face stressful situations
and encounter people who are scared, traumatised or mistrust the authorities as well as others who
lie, cheat and exhibit aggressive behaviour.

Yet, as is often the case, you are the first point of contact for third-country nationals reaching the EU
and you are representing your country as well as the EU. You should be professional, ethical and
behave at all times in a manner that reflects well on you and the authority you represent.

Remember to always be respectful. Everybody has to be treated with respect. Respect human
dignity at all times and be sensitive to cultural diversity and differences.

Be respectful in order to build trust and to be respected. To earn respect you must show respect in
the first place. Disrespect creates tension that could turn to conflict.

Do not discriminate
Nobody is allowed to discriminate against another person. Discriminatory behaviour, unfair
treatment or any other discriminatory practices are contrary to fundamental rights.

In order to avoid discrimination and demonstrate sensitivity, it is important to communicate in

a language that the person understands and in a way that makes them feel safe and secure. If
needed, adjust your approach, language and communication according to the gender, age, physical
and mental state and/or education level of the person in front of you.

Be non-judgmental
Do not prejudge other people for their actions, behaviour and/or appearance. Instead of judging a
person for what they have done or how they look, make an effort to find out more about them and
their background. A different procedure will follow at a different place, conducted by other officials
who will assess the person’s protection needs and right to international protection.

Do not pass judgment through verbal and non-verbal communication. If you find yourself being
judgemental, stop yourself and remind yourself to observe.
 PREPARATION TO RECOGNISE A POTENTIAL APPLICANT 17

Be an active listener
Be a good listener. Active listening is one of the key components of communication skills. When
you truly listen, you show a sincere interest in what is being said instead of just hearing it. In this
way, you show respect for the person you communicate with, which consequently influences both
the quality and the quantity of the information you will be able to obtain.

 Listen with genuine interest and with the intention to understand. You may use brief and direct
summaries, repeating main parts of the narrative in the applicant’s own words to demonstrate
active listening and understanding. You may also use reflective statements to reassure the
person that you are listening.

 Encourage the person to speak. Use encouraging phrases such as, ‘Tell me more about that’
or ‘What happened then?’ This invites the applicant to continue talking and contributes to
maintaining and expanding the narrative.

 Ask questions to show interest but remember that the most accurate and useful information
is given in a free narrative response. If you interrupt too often to ask additional questions, it
might also erode the person’s motivation or confidence, and reduce the likelihood of a complete
account.

Make sure that the person in front of you understands what you have said. It is your responsibility
to be understood. Use the opportunity to clarify understanding, for example by asking the person to
repeat important parts of the information you provided in their own words.

Use an appropriate and sensitive communication style

Differences in language, culture and experience may create barriers in communication. Many
other factors, such as age, gender, stress, physical and mental health as well as environmental
circumstances can influence the person’s ability to express themselves. The need to communicate
via interpreters also increases the risk of misunderstandings.

It is therefore important to be aware of the factors that could distort the communication process and
to adjust your communication style and language accordingly. This will help to reduce feelings of
anxiety and stress and secure both the quality and quantity of the information obtained.

 Be sensitive to the personal situation of the person, if already known, and adapt your
communication style accordingly.

 Use appropriate language that the person is able to understand. Always try to commu­nicate
as precisely, simply and clearly as possible.

 Give information to the person about what is expected from them, including minor details
that you often take for granted, such as who you are, where you are going, why you are closing
the door to the interview room etc., and about the process itself. You should not assume that
everybody understands things the same way as you do.

 Ensure confidentiality. Explain that anything that is said will remain confidential, unless the
information needs to be shared with other governmental bodies.

 Let the person speak freely. Encourage the person to provide an account of an event or
situation in their own words, at their own pace and without interruptions.

 Ask appropriate questions in an appropriate manner. Open questions show you have the
person in focus. Start the discussion with easy questions.

 Give everyone a chance to speak. Make sure that nobody intervenes and/or answers questions
on behalf of the person apart from when acting in their best interests.
18 ACCESS TO THE ASYLUM PROCEDURE

Working with the interpreter

The EU asylum acquis obliges Member States to make arrangements for interpretation to the
extent necessary to facilitate access to the asylum procedure where there are indications that
persons held in detention facilities or present at border crossing points may wish to apply for
international protection. Often there is a need to use the interpreter to bridge the language gap
between the person and the official concerned. Working with the interpreter, however, requires
you to adjust the way you communicate with the person concerned and/or how you lead the
discussion. Here are few points to keep in mind when using the services of an interpreter:

 Pay attention to the selection of the interpreter. If possible, an interpreter of the same
sex should be allocated if the applicant so requests.

 Inform the interpreter about their responsibility and role during the interview;

 Verify that the person concerned understands the interpreter and vice versa;

 Address the person concerned directly (in the first person) and not through the
interpreter using third-person phrasing.

 Try to speak slowly and clearly and pause frequently to allow them to interpret short
segments, especially if detailed or complicated explanations are given.

These principles are even more important when phone interpreter services are used.

Pay attention to your body language

Body language is a kind of non-verbal communication, where thoughts, intentions, or feelings are
expressed by physical behaviours, such as facial expressions, body posture, gestures, the tone
of the voice or use of the space. The ability to understand and use non-verbal communication is
a powerful communication tool.

 Be aware of your non-verbal communication. Your body language is an important tool to

develop trust and to establish and maintain rapport.

 Choose appropriate gestures and postures. Adopt open body language (avoid crossing your
arms; avoid a closed posture, etc.). Use adequate tone of the voice and appropriate facial
expressions to create a secure and open environment. Mirroring the applicant’s body language
can sometimes establish an atmosphere of understanding.

 Respect one’s personal space and make appropriate eye contact. Respect if an applicant does
not wish to make direct eye contact with you.

 Be aware of the cultural and gender-based differences in non-verbal communication. The

meaning of body language and non-verbal signals varies from culture to culture and these
differences can cause misunderstandings. Refrain from hasty interpretation of the body
language of the person in front of you.
 PREPARATION TO RECOGNISE A POTENTIAL APPLICANT 19

BE AWARE OF YOUR PERSONAL CIRCUMSTANCES

Every first-contact official needs to perform their tasks under demanding
circumstances, frequently encountering people from different cultures, different
social backgrounds and with different life experiences. This interesting but extremely
demanding working environment may sometimes lead to routine stress, frustration
or even symptoms of secondary trauma, such as intrusive thoughts, chronic fatigue,
sadness, anger, poor concentration, detachment, emotional exhaustion, fearfulness,
shame, physical illness, absenteeism.

Our private life can sometimes be a source of stress and problems that may impact on
your attitude to professional tasks and ability to cope with stress at work.

You need to be aware of these factors and make a constant effort to minimise their
impact. If needed, don’t hesitate to ask your colleagues or supervisors for support or to
seek professional counselling.

Related EUAA publication

For further guidance on information provision, consult the EUAA, Practical Guide on
Information Provision – Access to the asylum procedure, Chapter 1. ‘Basic principles
and skills for information provision’, February 2023, pp. 10-40, and the EASO, Practical
Guide on Registration — Lodging of applications for international protection, Section III,
‘Information provision,’ D-F (pp. 20-25).
20 ACCESS TO THE ASYLUM PROCEDURE

Indications that someone may wish

to apply for international protection

Many persons who may be in need of international protection do not actively apply for asylum in
the country in which they arrive. Many of them may not know their rights and obligations or may
choose not to ask for protection because of their specific situation or because of being misinformed
by others, including smugglers, about their rights and their options. It is unrealistic to expect them
to have knowledge of the complex asylum and Dublin procedures, full trust in authorities to directly
raise their fear at borders or in detention, or to know the right words and expressions that could
grant them access to the procedure.

Being a first point of contact for persons at the borders, it is your duty to identify when a person is
expressing the intention to apply for protection, and to proactively identify and inform them when
there are indications that they may wish to apply for asylum.

Remember that in most scenarios people will have the chance for the first time to express their
need for protection to you. Therefore you are the first, critical step to ensuring protection for
persons in need. An incorrect identification at the borders and failure to pass on the asylum request
to the competent authority may have serious consequences for the person in need of international
protection. The person may be returned to a county where their life or freedom is threatened or
faces persecution, death, cruel and inhuman degrading treatment or other serious human-rights
violations.

This section provides some helpful tips and guidance to assist first-contact officials in identifying
persons who may wish to apply and to ensure that no possible indications are overlooked.

Who may wish to make an application?

 Be aware that you must not deny anyone access to the asylum procedure.

 Everyone has the right to seek asylum.

 Always remember that anyone can be a refugee.

Anyone can have protection needs, no matter how they look or act. Within the mixed migration
flows, persons with different motives and objectives travel alongside each other, often using the
same routes and means of transport. Therefore refugees and persons whose reasons for travelling
are not protection-related may look and behave in the same way.

Remember that your task is to identify a person who may wish to apply for international protection,
provide them with information and refer them to the appropriate authority. It is not your responsibility
to assess whether the person in front of you has protection-related needs and whether they will
be granted international protection or not. Different procedures will follow at a different place,
conducted by competent officials, to assess the person’s protection needs and determine if they
qualify for international protection.

 Yes, anyone can be a refugee regardless of their country of origin, ethnicity and/or appearance.

Anyone can be a refugee regardless of whether they:

 Entered the Member State or is present on its territory irregularly, using false or fraudulent
documents or without any documentation at all, including if they are prohibited to enter because
of past irregular migratory situation.
 Indications that someone may wish to apply for international protection 21

 Are a victim of trafficking in human beings. A victim of trafficking may have protection needs
outside of the issue of trafficking. They may also apply for international protection when
escaping the trafficking situation; or the asylum procedure itself may be used by the traffickers
as a means of facilitating the presence of the person in the host country.

 Are an unaccompanied child. The EU asylum acquis provides for specific guarantees to
ensure that the unaccompanied child can benefit from the rights and comply with their
obligations in the asylum context. Since the child is inherently vulnerable, it is very important
to be particularly sensitive to any additional indicators of special needs and always act in the
best interests of the child

Persons with multiple special needs

Remember that apart from the need for international protection, some persons may have other
protection needs that require urgent attention. For example, a person may be both a victim of
trafficking and a refugee, or both an unaccompanied child and a refugee. Identification of these
multiple needs and referral to appropriate procedures, especially in the immediate post-arrival
phase, can be very challenging.

However, categorising different groups of arrivals should not detract from the development of
measures to protect the human rights of all persons without differentiation, including the right
for asylum. Thus, for example, in the case of victims of trafficking and unaccompanied children,
adequate protection mechanisms need to be activated as soon as possible. However, their
right to asylum has to be guaranteed as well and the required steps within the asylum context
have to be conducted simultaneously.

Non-exhaustive list of indications

Be aware that the list of indications provided below is only indicative and does
not, in any case, include all possible indications and their variations. Rather
than a precise formula, it should be viewed as advice on which factors to focus on when
assessing the possibility that someone may wish to apply for international protection.

Indications that a person may wish to apply for international protection may be revealed in different
ways. You may observe them, learn them through direct contact with the person or with other
persons, deduce them from the documents the person presents and/or come across them under
other circumstances. In order to detect the indications quicker and more precisely, pay particular
attention to following elements.
22 ACCESS TO THE ASYLUM PROCEDURE

Who the person is and where she/he comes from

Country of origin

Your general knowledge about the up-to-date situation in the person’s country of origin, including
general political circumstances, security situation as well as respect for fundamental rights is an
important source of indications for the accurate identification of persons who may wish to apply for
international protection. For example, a country embroiled in (civil) war or armed conflict or a country
governed by a dictatorial regime is likely to be a source country of refugees. However, be aware
that no country can be considered generally safe for all its citizens, therefore even those coming
from a safe country of origin may have individual protection needs.

Ethnicity, religion, nationality

Apart from the general context of the country of origin, particular attention should be paid if the
person belongs to (national, ethnical and/or religious) minorities as they often tend to be targets of
persecution or violence. However, it does not mean that persons from the majority may not have
protection needs.

General circumstances of arrival

Context of large-scale arrivals of big groups and individuals or a family may create different
expectations regarding the profile of people and their protection needs. However, it is important to
keep in mind that refugees do not use exclusively travel one way or the other.

Age

Children are inherently vulnerable and it is very important to be particularly sensitive to their
protection needs, especially when they are unaccompanied or separated. Every officer dealing
with a child should act in their best interests, be able to communicate with them in a child-friendly
manner and take into account their possible additional special needs.

Special protective measures should be considered when there are indications of child-smuggling
and/or child-trafficking.

Related Frontex publication

For further information on special protective measures, consult the Frontex, VEGA Handbook:
Children at airports — Children at risk on the move: Guidelines for border guards, 2015.

Gender

Women and girls in the migration context may find themselves in a particularly vulnerable position
due to their experience in the country of origin, during their journey and because of social or cultural
differences in the host country. Therefore, particular attention should be paid to their possible
protection and/or additional special needs. It does not mean, of course, that all women have the
same degree of vulnerability.

Particular support should be given so that women and girls can speak with you privately, on their
own behalf and that nobody intervenes and/or answers questions on their behalf apart from when
acting in their best interests. Information should also be provided directly to them so they are not
deprived of vital information and the ability to take independent decisions, including to request
international protection or other assistance.
 Indications that someone may wish to apply for international protection 23

If possible, the presence of a female first-contact official and interpreter should be ensured. Women
should not be urged to talk about incidents or crimes related to sexual violence. If appropriate,
considering their age, women should be sensitively asked if they are pregnant and, if needed, be
informed of available assistance.

Family status

It is important to take into consideration the family status of a person. Certain categories, such as
unaccompanied or separated children, single women or single parents with children may be in a
particularly vulnerable position and may have protection as well as additional special needs.

What the person says

A person’s statements are the key and often the main indication of whether they may wish to apply
for international protection or they could constitute the making of an application itself. Particularly if
the person expresses, in any way, fear or anxiety of persecution or serious harm if refused entry, it
should be considered such an indication. Some of the key words, expressions or messages that may
signal that a person may wish to apply for international protection include the following.

 Fear. For example, if the person is afraid to return to their home country; fears persecution; is
afraid of being imprisoned in their home country; is afraid of being killed if they are returned
home.

 Death. For example, if the person is afraid of being killed upon return.

 Persecution. For example, if the person says they were persecuted in their home country or is in
fear of being persecuted upon return.

 Torture. For example, if the persons say that they or their family members were tortured or if
they reveal scars or other injuries possibly resulting from torture.

 War. For example, if the person says there is a (civil) war or armed conflict occurring in their
home country; they are afraid of being killed in war, etc.

 Return. For example, if the person says they cannot return to their home country; is afraid to
return; has nowhere to return; is afraid of being persecuted, imprisoned, tortured or killed if they
are returned home.

 UNHCR (UN) or lawyer. For example, if the person asks for the UN or UNHCR office; wants to
see UNHCR; wants to see a lawyer, etc.

Keep in mind that oral statements of the applicant are often received in a
language that is not the applicant’s first language and/or through an interpreter.
This language barrier may have an impact on mutual understanding and cause
inconsistencies or discrepancies in the person’s statements.

What you can observe (appearance and behaviour)

Approaching / avoiding the officer

Nearly everywhere in the world an officer can be identified by their uniform. The uniform conveys
power and authority and may have a powerful psychological impact on those who see it. Persons
who may wish to apply for international protection are likely to approach a uniformed person and
establish contact with them. However, be aware that people may also come from countries where
24 ACCESS TO THE ASYLUM PROCEDURE

a uniform generates mistrust or even fear. People often avoid those in uniform due to fear of the
consequences of illegal entry, possession of forged or false documents or not having documents
at all. In these cases, you should be able to interpret such signals in order to appropriately react or
provide assistance.

Fear

Fear generates high levels of stress which may manifest itself in many ways, both physically and
emotionally. Strong fear may completely immobilise a person and cause passivity and apathy.
Alternatively, it may cause hyperactivity, aggressiveness and/or peculiar behaviour. Be aware that
anyone can have protection needs, no matter how they act.

Note that fear and stress can make it difficult for the person in front of you to understand your
questions and stay focused. Therefore it is important to create an atmosphere of safety and security
by providing information and giving explanations.

Interactions between people

Nearly all groups are based on interdependence, whether the group is large or small, formally
structured or loose, focused on one activity or another. Relationships of a different nature can
be established within a group, both positive relationships of mutual trust and support, as well as
unhealthy ones of dependency, submission, control and abuse. That is why it is very important to pay
attention to the interaction between members of a group and look for unhealthy and problematic
signs. Give everyone a chance to speak with you individually, including children, women and girls.
Make sure that nobody intervenes and/or answers questions on their behalf, except when acting in
their best interests.

Appearance (injuries, scars, clothing, belongings, etc.)

Visible wounds, injuries or scars may be a strong indication of protection needs. Other external
signs, such as type and appearance of their clothing, adequacy of luggage and other belongings
the person carries with them may indicate a wish to apply for international protection. Be aware that
anyone can have protection needs, no matter how they look.

Body language

Pay attention to the body language of a person, such as their facial expressions, body posture,
gestures, the tone of voice, etc. The ability to understand and use non-verbal communication is
a powerful communication tool and can be an important indication that a person may wish to apply
for international protection. However, be aware of the cultural and gender-based differences in non-
verbal communication. The meaning and use of body language and non-verbal signals varies from
culture to culture and these differences can cause misunderstandings. Therefore, refrain from hasty
interpretation.

Remember that your judgement at the point of entry has crucial and critical
importance. Consult your superior whenever you have any doubts about the
intentions of the person in front of you. An incorrect decision, e.g. refusal of entry, can
have serious consequences for the person in front of you. Therefore, always think carefully
before you act.
 What to do next 25

What to do next

Provide the information

It is your duty to ensure that a person who may wish to apply for international protection is informed
about the possibility to do so and advised how to do so. This is how access to the asylum procedure
can be effective in practice.

The main purpose of providing information is to ensure that persons who may be in need of
international protection have effective access to the asylum procedure and are able to make well-
informed decisions about whether to apply for international protection. Therefore, it needs to be
provided in a timely manner and should be as complete as possible, given the circumstances.

Inform the person about the possibility to apply for international protection. It is your task to
provide basic information about international protection and the asylum procedure to persons who
may wish to apply. The information and the level of details provided may vary according to the
circumstances, but should include, at least, information about:

 what are the basic rights and obligations of the person;

 what is international protection;

 who has a right to apply for international protection;

 who is considered to be a refugee or a beneficiary of subsidiary protection;

 how the application for international protection can be made.

Make sure you are aware of the information to be provided based on national practice and have at
hand the contact information about responsible authorities, including specialised child protection
services and other stakeholders, such as interpreters, non-governmental organisations, UNHCR and
any other organisation providing legal advice or other assistance. If applicable, make sure you have
extra copies of any information leaflets and brochures in the relevant languages.

It is necessary to communicate in a language understood by the person which may require the
presence of an interpreter. Communication should be adapted to the person’s special needs and
circumstances, including gender sensitivity and/or a child-friendly approach.

Related EUAA publication

For further details regarding the information provision topics, consult the EUAA, Practical
Guide on Information Provision – Access to the asylum procedure, Chapter 3. ‘Information
Provision Topics’, February 2023, pp. 54-100.
26 ACCESS TO THE ASYLUM PROCEDURE

Recognise the making of an application

for international protection
Under EU asylum law, a person is considered to
make an application for international protection
Be aware that people may
when they express, in whatever way and form,
express an intention to apply
the wish to apply or if they can be understood
for international protection in a variety
to be seeking international protection.
of ways. Any expression of the fear
of persecution or of serious harm if As a first-contact official, you will often be the
refused entry, expressed either verbally first representative of your country with whom
or in writing, qualifies as such a request. third-country nationals reaching the EU meet,
It is not necessary to use the exact word and to whom they have for the first time the
‘asylum’ or ‘refugee’. chance to express their wish to apply for asylum.

You will need to recognise when a person has expressed the wish to apply, provide them with
relevant information and refer them to the competent authority in charge of the asylum procedure.

Remember that your task is to recognise that a person has expressed the wish to apply for
international protection, provide them with information and refer them to appropriate authority. It
is not your responsibility to assess whether the person in front of you actually has protection-
related needs and whether they should be granted international protection or not. A different
procedure will follow elsewhere, conducted by other officials, to assess the person’s protection
needs and right to international protection.

What to do next if a person applies

for international protection
Anyone who has expressed the intention to apply for international protection (i.e. who made the
application) is considered to be an applicant for international protection with all the rights and
obligations attached to this status. As a first-contact official you are responsible for helping to ensure
these rights, for example by referring the applicants to the relevant authorities and organisations.

Right to remain

Right to basic
Guarantees in case
material reception
of detention
conditions

Adequate support in case

of special procedural and/ Access to an
or reception needs interpreter

Obligation to Right to be
cooperate informed

Right to communicate
with UNHCR or other
non-governmental
organisations providing
legal counselling
 What to do next 27

Register the application, if applicable, or refer

the application to the authorities competent Remember that an applicant
for registration for asylum must not be
penalised on account of their illegal
If a person expresses the wish to apply for
entry or presence, provided they
asylum to you, then they have ‘made’ an
present themselves without delay to the
application and becomes an applicant for
authorities.
international protection. After an application
has been made, it must be registered by the
competent authority. The objective of the
registration process is to make the rights and obligations resulting from making the application more
effective. Therefore, the registration should be completed as soon as possible, within the time limits
prescribed by EU law.

If you belong to an authority with the competence to register the application, you are required to
register it within three working days.

If you work for an authority that is not competent to register, you should refer the application to the
competent authority so that it is registered, no later than six working days after the application was
made. It is recommended to keep a written record, in accordance with your national procedures,
that you have received the application.

Max. 10 working days

Registration
Max. 6 working days of the
Refer to competent application
Max. 3 working days
authority, in case of large
Refer to the competent
number of applicantions
authority
+ Register
+
Keep a written record
Keep written record

Inform the applicant where and how the application may be lodged

As an officer of the authority that is likely to receive applications for international protection you
have a duty to inform the applicant where and how to lodge the applications. Information should be
provided about:

 what is lodging, including the consequences if the applicant does not lodge their application;

 which authority is responsible for the asylum procedure;

 what they need to lodge the application;

 where should they go to lodge the application;

 how can they get there.

Identify the applicant’s special needs and refer them to the appropriate procedure

Do this without delay. For applicants with multiple needs, consider which referral mechanisms
need to be activated and in which order so you can respond to all the applicant’s special needs.
Thus, for example, in case of victims of trafficking or unaccompanied children, adequate protection
mechanisms need to be activated in parallel to the asylum procedure.
28 ACCESS TO THE ASYLUM PROCEDURE

What to do next if a person who may have protection

needs does not want to apply for international protection
You may encounter situations where a person who might have protection needs decides not to
apply for asylum. It is their right of choice and nobody can force them to do so. However, remember
that in such cases you still have to fulfil some obligation conveyed upon you under international and
EU law, such as:

Ensure the principle of non-refoulement

Nobody can be returned to a country where they are at risk of torture, inhuman or degrading
treatment or punishment. The non-refoulement principle applies also to persons who are at the
border or at high seas. It entails a requirement to grant the person access to the territory. Any
returns should follow established procedures (readmission, return process, etc.), including the
required legal safeguards and guarantees. Collective expulsions are forbidden.

Inform the person about the possibility to apply for international protection

You have a duty to provide basic information about international protection. Remember that a key
purpose of providing this information is to ensure that the person concerned is able to make well-
informed decisions about whether to apply or not.

Provision of information may need to be adapted to the circumstances, and include especially the
rights to which applicants are entitled (e.g. right to remain) and the obligations of asylum seekers
under EU and national law as well as the consequences of not applying for international protection.

Consider contacting UNHCR, non-governmental organisations and/or other organisations based on

national legislation and practice that may be able to provide more specialised on counselling and
assistance.

When in doubt, consult your superior

Consult your superior whenever you have any doubts about the intentions of the person in front
of you, especially if their return to country of origin or transit would constitute a possible breach of
international law.

Follow your national operating procedures for further follow-up

 Access to the Asylum Procedure 29

Access to the Asylum Procedure

 Every human being must be valued and respected
 Emergency healthcare and basic needs should always be addressed first

Anyone can be a refugee. Everyone has the right to apply for

1 6 international protection.
Anyone can have protection needs, regardless
of their country of origin, ethnicity, appearance or No one can be denied access to the asylum
behaviour. procedure, even if that person did not fulfil all the
entry conditions.

Everyone is entitled to protection

2 against refoulement. Any sign or expression of fear if refused
7 entry can be understood as a request for
No one can be expelled or returned to a situation
where they would face a risk of persecution, international protection.
the death penalty, torture or other inhuman or People may express an intention to apply for international
degrading treatment or punishment. This rule also protection in a variety of ways. Any expression of fear of
applies to non-admission at the border and to any persecution or serious harm if refused entry – verbally or
form of forcible removal. in writing – qualifies as such a request. It is not necessary
to use the word ‘asylum’ or ‘refugee’.

Vulnerable persons must be identified

3 and adequately supported. Applicants for international protection
Measures taken at border-crossing points and in
8 must not be penalised due to their illegal
detention facilities are crucial, where the special entry or presence.
needs of vulnerable persons, including children Those who present themselves without delay to the
and victims of trafficking in human beings, may be authorities must not be penalised as a result of their
declared or detected. illegal entry or presence.

The best interests of the child take Each application must be registered or
4 precedence in all actions concerning 9 referred for registration to the responsible
children. authority.
In assessing the best interests of the child, due After an application has been made it must be
account must be taken, on a case-by-case basis, registered by the responsible authority. The
regarding factors such as safety and security, registration should be completed as soon as possible,
family reunification possibilities, the child’s within the time limits prescribed by law.
wellbeing and the views of the child according to
their age and maturity.
The principle of non-refoulement must be
10 ensured, even when a person who may
Anyone who may wish to apply for
5 international protection must be
need protection decides not to apply for
asylum.
informed about their right to do so.
Any returns should follow established procedures,
Information on this right to asylum must be including the required legal safeguards and
provided to all persons who may be in need of guarantees. Nobody can be returned to a country
international protection to ensure that they have where they are at risk of torture, inhuman or
effective access to the asylum procedure. degrading treatment or punishment, even if they are
in an irregular migratory situation.
30 ACCESS TO THE ASYLUM PROCEDURE

Annex. Legal references

Human dignity

European Union law

Charter of Article 1
Fundamental Human dignity
Rights of the EU
Human dignity is inviolable. It must be respected and protected.

Right to life

European Union law

Charter of Article 2
Fundamental Right to life
Rights of the EU 1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.

Prohibition of torture

International law

European Article 3
Convention on Prohibition of torture
Human Rights No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

European Union law

Charter of Article 4
Fundamental Prohibition of torture and inhuman or degrading treatment or punishment
Rights of the EU
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
 Annex. Legal references 31

Prohibition of refoulement

International law

Geneva Refugee Article 33(1)

Convention : Prohibition of expulsion or return (‘refoulement’)
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.

European Union law

Charter of Article 19(2)

Fundamental Protection in the event of removal, expulsion or extradition
Rights of the EU No one may be removed, expelled or extradited to a State where there is a serious risk that he or
she would be subjected to the death penalty, torture or other inhuman or degrading treatment or
punishment.

Regulation (EU) Article 3

2016/399 Scope
This Regulation shall apply to any person crossing the internal or external borders of Member
Schengen Borders
States, without prejudice to:
Code
[…]
(b) the rights of refugees and persons requesting international protection, in particular as regards
non-refoulement.

Article 4
Fundamental Rights
When applying this Regulation, Member States shall act in full compliance with relevant Union
law, including the Charter of Fundamental Rights […] ; relevant international law, including the […]
[Refugee Convention] ; obligations related to access to international protection, in particular the
principle of non-refoulement; and fundamental rights. […]

Article 14(1)
Refusal of entry
A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and
does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to
the territories of the Member States. This shall be without prejudice to the application of special
provisions concerning the right of asylum and to international protection or the issue of long-stay
visas.

Regulation Article 4(1)

656/2014 Protection of fundamental rights and the principle of non-refoulement
No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced
relating to external
to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia,
sea border
there is a serious risk that he or she would be subjected to the death penalty, torture, persecution
surveillance in the
or other inhuman or degrading treatment or punishment, or where his or her life or freedom would
context of Frontex
be threatened on account of his or her race, religion, nationality, sexual orientation, membership of
operations
a particular social group or political opinion, or from which there is a serious risk of an expulsion,
removal or extradition to another country in contravention of the principle of non-refoulement.
32 ACCESS TO THE ASYLUM PROCEDURE

Directive With regard to third-country nationals excluded from the scope of this Directive in accordance with
2008/115/EC Article 2(2)(a), Member States shall:
[…]
return directive
(b) respect the principle of non-refoulement.
Article 5
When implementing this Directive, Member States shall
[…]
and respect the principle of non-refoulement.

Regulation (EC) Article 31(3)

No. 767/2008 Transfer of data to third countries
Such transfers of personal data to third countries or international organisations shall not prejudice
VIS regulation
the rights of refugees and persons requesting international protection, in particular as regards non-
refoulement.

Regulation, (EU) Article 80(1)

2019/1896 Protection of fundamental rights and a fundamental rights strategy
The European Border and Coast Guard shall guarantee the protection of fundamental rights in the
performance of its tasks under this Regulation in accordance with relevant Union law, in particular
the Charter, and relevant international law, including the 1951 Convention relating to the Status of
Refugees, the 1967 Protocol thereto, the Convention on the Rights of the Child and obligations
related to access to international protection, in particular the principle of non-refoulement.

Right to asylum

European Union law

Charter of Article 18
Fundamental Right to asylum
Rights of the EU The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of
28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance
with the Treaty on the European Union and the Treaty on the Functioning of the European Union […]

Directive Article 7(1)

2013/32/EU Applications made on behalf of dependants or minors
1. Member States shall ensure that each adult with legal capacity has the right to make an application
asylum procedures
for international protection on his or her own behalf.
directive (recast)
2. Member States may provide that an application may be made by an applicant on behalf of his or
her dependants. In such cases, Member States shall ensure that dependent adults consent to the
lodging of the application on their behalf, failing which they shall have an opportunity to make an
application on their own behalf.
[…]
3. Member States shall ensure that a minor has the right to make an application for international
protection either on his or her own behalf, if he or she has the legal capacity to act in procedures
according to the law of the Member State concerned, or through his or her parents or other adult
family members, or an adult responsible for him or her, whether by law or by the practice of the
Member State concerned, or through a representative.
 Annex. Legal references 33

Non-discrimination

International law

European Article 14
Convention on Prohibition of discrimination
Human Rights
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.

Refugee Article 3
Convention Non-discrimination
The Contracting States shall apply the provisions of this Convention to refugees without
discrimination as to race, religion or country of origin.

European Union law

Charter of Article 21(1)

Fundamental Non-discrimination
Rights of the EU Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation shall be prohibited.

Non-penalisation

International law

Refugee Article 31(1)

Convention Refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory where their life or
freedom was threatened in the sense of Article 1, enter or are present in their territory without
authorisation, provided they present themselves without delay to the authorities and show good
cause for their illegal entry or presence.

European Union law

Regulation (EU) Article 13(1)

2016/399 Refusal of entry
A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and
Schengen Border
does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to
Code
the territories of the Member States. This shall be without prejudice to the application of special
provisions concerning the right of asylum and to international protection or the issue of long-stay
visas.
34 ACCESS TO THE ASYLUM PROCEDURE

Access to the asylum procedure

European Union law

Directive recital 25
2013/32/EU In the interests of a correct recognition of those persons in need of protection as refugees within
the meaning of Article 1 of the Geneva Convention or as persons eligible for subsidiary protection,
asylum procedures
every applicant should have an effective access to procedures, […]
directive (recast)
recital 26
With a view to ensuring effective access to the examination procedure, officials who first come
into contact with persons seeking international protection, in particular officials carrying out the
surveillance of land or maritime borders or conducting border checks, should receive relevant
information and necessary training on how to recognise and deal with applications for international
protection, inter alia, taking due account of relevant guidelines developed by EASO. They should
be able to provide third-country nationals or stateless persons who are present in the territory,
including at the border, in the territorial waters or in the transit zones of the Member States, and
who make an application for international protection, with relevant information as to where and
how applications for international protection may be lodged. Where those persons are present
in the territorial waters of a Member State, they should be disembarked on land and have their
applications examined in accordance with this Directive.

recital 28
In order to facilitate access to the examination procedure at border crossing points and in detention
facilities, information should be made available on the possibility to apply for international protection.
Basic communication necessary to enable the competent authorities to understand if persons
declare their wish to apply for international protection should be ensured through interpretation
arrangements.

Article 8(1)
Information and counselling in detention facilities and at border crossing points
Where there are indications that third-country nationals or stateless persons held in detention
facilities or present at border crossing points, including transit zones, at external borders, may
wish to make an application for international protection, Member States shall provide them with
information on the possibility to do so. In those detention facilities and crossing points, Member
States shall make arrangements for interpretation to the extent necessary to facilitate access to the
asylum procedure.

Regulation (EU) Article 4

2016/399 Fundamental Rights
When applying this Regulation, Member States shall act in full compliance with relevant Union
Schengen Border
law, including the Charter of Fundamental Rights; relevant international law, including the Geneva
Code
Convention; obligations related to access to international protection, in particular the principle of
non-refoulement; and fundamental rights. […]
 Annex. Legal references 35

Making and registering the application for international protection

European Union law

Directive recital 27
2013/32/EU Given that third-country nationals and stateless persons who have expressed their wish to apply
for international protection are applicants for international protection, they should comply with
asylum procedures
the obligations, and benefit from the rights, under this Directive and Directive 2013/33/EU of the
directive (recast)
European Parliament and of the Council of 26 June 2013 laying down standards for the reception
of applicants for international protection. To that end, Member States should register the fact that
those persons are applicants for international protection as soon as possible.

Article 2(c)
Definitions
‘Applicant’ means a third-country national or stateless person who has made an application for
international protection in respect of which a final decision has not yet been taken.

Article 6
Access to the procedure
1. When a person makes an application for international protection to an authority competent under
national law for registering such applications, the registration shall take place no later than three
working days after the application is made.
If the application for international protection is made to other authorities, which are likely to receive
such applications, but not competent for the registration under national law, Member States shall
ensure that the registration shall take place no later than six working days after the application is
made.
[…]

5. Where simultaneous applications for international protection by a large number of third-country

nationals or stateless persons make it very difficult in practice to respect the time limit laid down
in paragraph 1, Member States may provide for that time limit to be extended to 10 working days.
36 ACCESS TO THE ASYLUM PROCEDURE

Vulnerable persons

European Union law

Directive 2013/32/ recital 29

EU Certain applicants may be in need of special procedural guarantees due, inter alia, to their age,
gender, sexual orientation, gender identity, disability, serious illness, mental disorders or as a
asylum
consequence of torture, rape other serious forms of psychological, physical or sexual violence.
procedures
Member States should endeavour to identify applicants in need of special procedural guarantees
directive (recast)
before a first instance decision is taken. Those applicants should be provided with adequate
support, including sufficient time, in order to create the conditions necessary for their effective
access to procedures and for presenting the elements needed to substantiate their application for
international protection.

Article 24
Applicants in need of special procedural guarantees
1. Member States shall assess within a reasonable period of time after an application for international
protection is made whether the applicant is an applicant in need of special procedural guarantees.
2. The assessment referred to in paragraph 1 may be integrated into existing national procedures
and/or into the assessment referred to in Article 22 of Directive 2013/33/EU and need not take the
form of an administrative procedure.
3. Member States shall ensure that where applicants have been identified as applicants in need of
special procedural guarantees, they are provided with adequate support in order to allow them to
benefit from the rights and comply with the obligations of this Directive throughout the duration of
the asylum procedure.
Where such adequate support cannot be provided within the framework of the procedures referred
to in Article 31(8) and Article 43, in particular where Member States consider that the applicant
is in need of special procedural guarantees as a result of torture, rape or other serious forms of
psychological, physical or sexual violence, Member States shall not apply, or shall cease to apply,
Article 31(8) and Article 43. Where Member States apply Article 46(6) to applicants to whom Article
31(8) and Article 43 cannot be applied pursuant to this subparagraph, Member States shall provide
at least the guarantees provided for in Article 46(7).
4. Member States shall ensure that the need for special procedural guarantees is also addressed,
in accordance with this Directive, where such a need becomes apparent at a later stage of the
procedure, without necessarily restarting the procedure.

Directive Article 21
2013/33/EU General principle
Member States shall take into account the specific situation of vulnerable persons such as
reception
minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents
conditions
with minor children, victims of human trafficking, persons with serious illnesses, persons with
directive (recast)
mental disorders and persons who have been subjected to torture, rape or other serious forms
of psychological, physical or sexual violence, such as victims of female genital mutilation, in the
national law implementing this Directive.

Regulation Article 4(4)

656/2014 Protection of fundamental rights and the principle of non-refoulement

Relating Throughout a sea operation, the participating units shall address the special needs of children,
to external including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent
sea border medical assistance, disabled persons, persons in need of international protection and other persons
surveillance in the in a particularly vulnerable situation.
context of Frontex
operations
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