Background: 

The Dutch government is currently reviewing its asylum procedures as part of the implementation of the Pact on Migration and Asylum. A specific legislative proposal suggests the discontinuation of the "preliminary decision procedure", a process where the Immigration and Naturalisation Service (IND) provides a pre-notification of an intended rejection. This procedural step currently allows an asylum applicant to respond to the intended decision before a final decision is taken. The Dutch Council of State has requested information on potential similar procedures in other Member States and opportunities for applicants to object to first-instance decisions before initiating an administrative judicial appeal at court. 

Respondents: 

A total of 22 EMN Member Countries (including BE) provided a public answer to this ad hoc query. 

Findings:

A preliminary analysis of the results of the ad hoc query shows that:

• The majority of responding EMN Member Countries (including BE) do not have a preliminary decision procedure that allows applicants to respond to an intended negative decision before the official decision is issued. 

• A few EMN Member Countries report having preliminary or similar procedures. In EE, applicants are given the possibility to provide objections before a negative decision is taken. In PL, the public administration is obligated to notify applicants of conditions that have not been met which may result in a negative decision, allowing for comment before the proceedings conclude. Currently, AT uses an admission procedure where applicants are notified and heard if the authority intends to reject the application, though this specific form will be abolished with the implementation of the Pact on Migration and Asylum. 

• Some EMN Member Countries exclude asylum law from general preliminary notification rules. While DE and IT have general administrative laws requiring authorities to notify parties of intended negative outcomes, both countries specify that these do not apply to asylum or international protection procedures. 

• Administrative objection procedures prior to a judicial appeal are uncommon. Most responding EMN Member Countries require applicants to challenge negative decisions directly through judicial appeals at court. 

• Exceptions exist in a few countries where administrative appeals are possible. In LU, applicants can file an optional, non-judicial administrative appeal (“recours gracieux”) requesting the authority to reconsider, though this does not suspend the deadline for judicial appeals. In PL, first-instance decisions can be appealed to a second-instance administrative authority, the Refugee Board. 

For further details, please read the compilation of answers attached above.