https://legilux.public.lu/eli/etat/leg/loi/2015/12/18/n15/consolide/20210705
Law of 18 December 2015
- on international protection and temporary protection;
- amending
– the amended law of 10 August 1991 on the profession of lawyer,
– the amended Act of 29 August 2008 on the free movement of persons and immigration,
– the law of 28 May 2009 on the detention centre;
- repealing the amended Act of 5 May 2006 on the right of asylum and complementary forms of protection…
Effective date: 05/07/2021
Chapter 1. – Purpose, scope, definitions and competence
Art. 1.
The purpose of this law is to establish the procedures for granting
and withdrawing international protection, the standards relating to the
conditions that must be met by third-country nationals or stateless
persons in order to benefit from international protection, a uniform
status for refugees and persons eligible for subsidiary protection and
the content of this protection.
It applies to all applications for international protection submitted
on the territory of the Grand Duchy of Luxembourg, including at the
border and in transit zones. It does not apply to applications for
diplomatic or territorial asylum lodged with a representation of the
Grand Duchy of Luxembourg.
Its purpose is also to grant temporary protection in the event of a
mass influx of displaced persons from third countries who cannot return
to their country of origin.
Art. 2.
For the purposes of this Act, the following definitions shall apply
(a) Geneva Convention: the Convention of 28 July 1951 relating to the
Status of Refugees, as amended by the New York Protocol of 31 January
1967
(b) “application for international protection” means an application
for protection made by a third country national or a stateless person,
which may be understood as seeking refugee status or subsidiary
protection status, where the applicant is not explicitly seeking another
type of protection outside the scope of this Act and which may be the
subject of a separate application
(c) Applicant: any third country national or stateless person who has
submitted an application for international protection on which a final
decision has not yet been taken;
(d) “applicant requiring special procedural safeguards” means an
applicant whose ability to enjoy the rights and comply with the
obligations under this Act is limited due to individual circumstances
(e) Final decision: any decision determining whether the third
country national or stateless person is granted refugee or subsidiary
protection status and which is no longer subject to appeal in accordance
with this Act, whether or not such appeal has the effect of allowing an
applicant to remain in the territory pending its outcome
(f) refugee: Any third country national or stateless person who,
owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, political opinion or membership of a particular
social group, is outside the country of his or her nationality and is
unable or, owing to such fear, is unwilling to return to that country,
(f) any person who, owing to fear, is outside the country of his or her
nationality and is unable or, owing to such fear, is unwilling to avail
himself or herself of the protection of that country, or any stateless
person who, being outside the country of his or her former habitual
residence for the above-mentioned reasons, is unable or, owing to such
fear, is unwilling to return to it, and who does not fall within the
scope of Article 45
(g) a person eligible for subsidiary protection: any third country
national or stateless person who does not qualify as a refugee but in
respect of whom there are substantial grounds for believing that the
person concerned, if returned to his or her country of origin or, in the
case of a stateless person, to the country of former habitual
residence, would face a real risk of being subjected to the adverse
effects of the removal of his or her family members or other persons,
would face a real risk of suffering serious harm as defined in Article
48, Article 50 (1) and (2) not being applicable to that person, and that
person being unable or, in view of that risk, unwilling to avail
himself or herself of the protection of that country;
(h) international protection means refugee status and subsidiary protection status;
(i) refugee status: the recognition of a third country national or a stateless person as a refugee;
(j) Subsidiary protection status: the recognition of a third country
national or a stateless person as a person eligible for subsidiary
protection;
(k) family members: insofar as the family was already established in
the country of origin, the following members of the family of the
beneficiary of international protection who are present in the Grand
Duchy of Luxembourg because of the application for international
protection
– the spouse of the beneficiary of international protection status or
his/her unmarried partner engaged in a community of life recognised by
the country of origin of one of the partners
– the minor children of the couple referred to in the first indent or
of the beneficiary of international protection provided that they are
unmarried, irrespective of whether they are legitimate, born out of
wedlock or adopted
– the father or mother of the beneficiary of international protection
or any other adult who is responsible for him or her under the law in
force in the Grand Duchy of Luxembourg, where the beneficiary is a minor
and unmarried;
(l) minor: a third-country national or a stateless person under the age of 18
(m) Unaccompanied minor: a minor who enters the territory without
being accompanied by an adult who is responsible for him or her under
the law in force in the Grand Duchy of Luxembourg and as long as he or
she is not effectively taken into the care of such a person; this
expression also covers a minor who has been left alone after entering
the territory
(n) withdrawal of international protection: the decision by which the
Minister responsible for asylum revokes, refuses to renew or terminates
a person’s refugee status or subsidiary protection status
(o) Remain in the Grand Duchy of Luxembourg: the fact of remaining on
the territory, including at the border or in a transit zone of the
Grand Duchy of Luxembourg, where the application for international
protection has been lodged or is being examined
(p) “country of origin” means the country or countries of nationality
of the applicant or, if he/she is stateless, the country where he/she
had his/her habitual residence
(q) return decision: the negative decision of the Minister declaring
the stay illegal and imposing an order to leave the territory
(r) temporary protection means a procedure of an exceptional nature
ensuring, in the event of a mass influx or imminent mass influx of
displaced persons from third countries who cannot return to their
country of origin, immediate and temporary protection for those persons,
in particular if there is also a risk that the asylum system will not
be able to deal with the influx without causing effects contrary to its
proper functioning, in the interests of the persons concerned and of
other persons seeking protection
(s) displaced persons: third country nationals or stateless persons
who have had to leave their country or region of origin or have been
evacuated, in particular following an appeal by international
organisations, whose return in safe and sustainable conditions is
impossible due to the situation in that country, and who may possibly
fall within the scope of Article 1A of the Geneva Convention or other
international or national instruments of international protection, and
in particular, persons who have fled areas of armed conflict or endemic
violence and persons who have been victims of systematic or widespread
violations of human rights or are under serious threat thereof;
(t) mass influx: the arrival in the European Union of a significant
number of displaced persons from a particular country or geographical
area, whether their arrival in the European Union is spontaneous or
organised, for example as part of an evacuation programme.
Art. 3.
(1)The Minister responsible for asylum, hereinafter referred to as
“the Minister”, shall be the determining authority for all procedures,
responsible for carrying out an appropriate examination of applications
in accordance with the provisions of this Act and competent to decide in
the first instance on such applications.
(2)The Minister’s officials shall receive relevant training in
accordance with EU Regulation No 439/2010 of 19 May 2010 establishing a
European Asylum Support Office.
Officers interviewing applicants under this Act shall also have a
general knowledge of issues that could affect the ability of applicants
to be interviewed, in particular of evidence that the applicant may have
been subjected to torture in the past.
The application of an unaccompanied minor shall be processed by an
officer with the necessary knowledge of the special needs of minors.
(3)Applications for international protection submitted to the
authorities of another Member State carrying out border or immigration
controls are processed by the Minister if the application is submitted
on Luxembourg territory.
Chapter 2. – Procedure for granting and withdrawing an application for international protection
Section 1. -Basic principles and fundamental guarantees
Art. 4.
(1)When a person submits an application for international protection
to the Minister, registration shall take place no later than three
working days after the application is submitted. If the application for
international protection is submitted to an officer of the Airport
Control Service, the Grand-Ducal Police, the detention centre or the
penitentiary centres, the registration shall take place no later than
six working days after the application is submitted.
Where, due to the large number of third-country nationals or
stateless persons who simultaneously apply for international protection,
it is in practice very difficult to comply with the time limits laid
down in the preceding paragraph, the registration period may be extended
to ten working days.
(2) The officers referred to in paragraph (1) shall receive from the
Minister the relevant information and training at a level necessary for
the performance of their duties and responsibilities, as well as
instructions, so that they can provide applicants with information on
where and how the application for international protection can be made.
Art. 5.
(1) Any person who has reached the age of majority and has legal
capacity has the right to lodge an application for international
protection on his/her own behalf.
(2) An application may be made by an applicant on behalf of his
dependants. In this case, the dependants who have reached the age of
majority must consent to the application being made on their behalf.
Consent is required at the time the application is submitted or, at the
latest, at the time of the personal interview with the adult dependant.
Prior to the request for consent, each adult dependant shall be informed
in private of the relevant procedural consequences of making an
application on his or her behalf and of his or her right to make a
separate application for protection.
(3) An unemancipated minor shall have the right to submit an
application for international protection through his or her parents or
any other adult family member, or through an adult person exercising
parental authority over him or her, or through an ad hoc administrator.
(4) An unaccompanied minor shall have the right to make an
application for international protection either on his or her own behalf
or through a representative provided for in Article 20. Without
prejudice to Article 20, paragraph (3), the application shall be made by
the representative in the presence of the minor.
The ad hoc administrator who assists the unaccompanied minor in
administrative and judicial procedures relating to entry and residence
on the territory in accordance with the amended Act of 29 August 2008 on
the free movement of persons and immigration, has the right to submit
an application for international protection on behalf of an
unaccompanied minor if, on the basis of a specific assessment of the
latter’s particular situation, he or she considers that the minor may be
in need of international protection.
Art. 6.
(1)After the submission of an application for international
protection and its subsequent registration, the applicant shall be
summoned as soon as possible to submit his/her application and that of
the persons referred to in Article 5, paragraphs (2) and (3).
(2)The application for international protection shall be filed with the Minister in the presence of all persons concerned.
An application for international protection shall be deemed to have
been filed from the moment the applicant submits the form provided for
this purpose.
If the applicant fails to file the application, he shall be presumed
to have implicitly withdrawn his application or to have implicitly
renounced it in accordance with section 23.
(3)The determination of the State responsible shall be made in
accordance with Regulation (EU) No 604/2013 of the European Parliament
and of the Council of 26 June 2013 establishing the criteria and
mechanisms for determining the Member State responsible for examining an
application for international protection lodged in one of the Member
States by a third-country national or a stateless person.
A member of the Grand-Ducal police force will carry out all necessary
checks to establish the identity and travel itinerary of the applicant.
In accordance with Regulation (EU) No 603/2013 of the European
Parliament and of the Council of 26 June 2013 concerning the
establishment of Eurodac for the comparison of fingerprints for the
effective application of Regulation (EU) No 604/2013 establishing the
criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of
the Member States by a third-country national or a stateless person and
concerning requests for comparison with Eurodac data by Member States’
law enforcement authorities and Europol for law enforcement purposes,
and amending Regulation (EU) No 1077/2011 establishing a European Agency
for the operational management of large-scale IT systems in the area of
freedom, security and justice, it shall take the applicant’s
fingerprints, take photographs and draw up a report.
Article 7.
(1)Within three days of submitting an application for international
protection, the applicant shall receive a document issued in his or her
name attesting to his or her status as an applicant and his or her right
to remain on the territory of the Grand Duchy of Luxembourg and to move
freely there.
This right to remain on the territory does not constitute a right to a residence permit.
(2)The certificate specifies its period of validity and may be
extended for as long as the applicant is authorised to stay in the
territory by virtue of the provisions of Article 9 and Article 36.
The certificate shall not be issued to an applicant who is held in
detention. If the holder is under house arrest, the document shall
certify this fact.
Article 8.
(1)If there are indications that third-country nationals or stateless
persons detained in the detention centre or present at border crossing
points, including transit zones at external borders, may wish to make an
application for international protection, they shall be provided with
information on the possibility of doing so. To facilitate access to the
asylum procedure, interpretation arrangements shall be made to the
extent necessary.
(2) Organisations and persons authorised by the Minister to provide
advice and guidance to applicants for international protection shall
have access to persons at border crossing points, including transit
zones, at the external borders, provided that they meet the conditions
for access to Luxembourg airport and submit to the applicable security
checks.
Restrictions on such access may only be imposed where they are
objectively necessary for security, public order or the administrative
management of the crossing points and provided that they do not
considerably restrict access or even make it impossible.
Art. 9.
(1) Applicants shall be authorised to remain in the Grand Duchy of
Luxembourg, solely for the purposes of the procedure, until a decision
has been taken by the Minister.
(2)As an exception to paragraph (1), the right to remain is waived
(a) where a person may be surrendered to or extradited, as the case
may be, to either another Member State of the European Union by virtue
of obligations arising from a European arrest warrant or for other
reasons, or to a third country or to an international criminal court or
tribunal;
(b) where a person has made a subsequent initial application which is
considered inadmissible, only in order to delay or prevent the
execution of a decision which would result in his or her imminent
removal from the territory;
(c) where a person makes another subsequent application for
international protection following the adoption of a final decision
declaring a first subsequent application inadmissible or following a
final decision rejecting that application as unfounded.
(3) Before extraditing an applicant to a third country, the Minister
shall ensure that the extradition decision or the return decision will
not result in direct or indirect refoulement in violation of
international obligations and obligations towards the European Union.
Article 10.
(1)The examination of a request for international protection shall
not be refused or excluded solely on the grounds that the request was
not submitted promptly.
(2)In considering an application for international protection, the
Minister shall first determine whether the applicant qualifies for
refugee status and, if not, whether the applicant qualifies for
subsidiary protection.
(3)The Minister shall ensure that decisions on applications for
international protection are taken after an appropriate examination. To
this end, the Minister shall ensure that:
(a) applications are examined and decisions are taken individually, objectively and impartially
(b) accurate and up-to-date information is obtained from various
sources, such as the European Asylum Support Office (EASO) and the
Office of the United Nations High Commissioner for Refugees (UNHCR), as
well as from international organisations competent in the field of human
rights, on the general situation in the applicants’ countries of origin
and, where applicable, in the countries through which the applicants
have transited, and that staff responsible for examining applications
and taking decisions have access to this information
(c) the officials responsible for examining applications and taking
decisions are familiar with the applicable standards of asylum and
refugee law
(d) officers responsible for examining applications and making
decisions have the opportunity to seek expert advice, where appropriate,
on particular matters such as medical, cultural, religious,
child-related or gender issues.
(4) The courts to which an appeal is made under this Act shall have
access, through the Minister, the applicant or otherwise, to the general
information referred to in paragraph 3(b) necessary for the performance
of their task.
(5) With the exception of identity documents, any document submitted
to the Minister in a language other than German, French or English must
be accompanied by a translation into one of these languages in order to
be taken into account in the examination of the application for
international protection.
Art. 11.
(1) The applicant shall be informed in a language he understands or
may reasonably be supposed to understand of the procedure to be followed
and of his rights and obligations during the procedure, as well as of
the possible consequences of non-compliance with his obligations or
refusal to cooperate with the Minister. The applicant shall be informed
of the timetable, of the means available to him for fulfilling the
obligation to submit the information referred to in Article 37(2) and of
the consequences of explicit or implicit withdrawal of the application.
This information shall be provided to the applicant in time to enable
him to exercise the rights and fulfil the obligations arising from his
status as an applicant.
(2) The applicant shall be provided, where necessary, with the
services of an interpreter free of charge for the purpose of presenting
his/her case during the examination procedure and during the appeal
procedures.
The services of an interpreter shall be provided when the applicant
is questioned in the manner referred to in Articles 13, 14 and 15 and
when adequate communication cannot be ensured without such services.
(3) The applicant shall have the right to communicate with the
organisations referred to in Article 24. Without prejudice to Article
17, he or she shall have the right to consult a lawyer on matters
relating to his or her application for international protection at his
or her own expense at all stages of the procedure, including following a
negative decision.
(4)The applicant and, where appropriate, his or her lawyer shall have
access to the information referred to in Article 10(3)(b) and to the
information provided by the experts referred to in Article 10(3)(d),
where the Minister has taken this information into account in reaching a
decision on their application.
Article 12.
(1) The applicant shall be obliged to cooperate with the Minister in
order to establish his identity and the other elements referred to in
section 37(2). The applicant shall hand over his/her identity documents
and any other documents relevant to the examination of the application
for international protection as quickly as possible. These documents
shall be kept at the office of the Minister against receipt.
The documents are returned to the applicant if refugee status or
subsidiary protection status is granted. If refugee status and
subsidiary protection status are refused, they are returned to the
applicant when he is removed from the territory. As an exception to the
above, travel and identity documents shall not be returned to
beneficiaries of refugee status.
(2) The applicant is obliged to respond personally to the Minister’s
summonses. The Minister’s officials may record oral statements made by
the applicant, provided that the applicant has been informed of this
beforehand.
The applicant may be subjected to a language test. Photographs may be taken.
(3)The applicant is obliged to make a declaration of arrival to the
municipality in which he/she establishes his/her habitual residence
within eight days of submitting his/her application for international
protection. Any change of residence within the municipality or the
transfer of the habitual residence to another municipality must be
declared to the municipality of the new residence.
For the purposes of the procedure, the applicant may elect an address
for service with his or her representative and communicate the elected
address to the Minister. Any change in the address for service must be
communicated to the Minister against receipt.
The applicant must agree to receive all communications at his usual
place of residence or, where appropriate, at the address for service.
Without prejudice to personal notification, any notification shall be
deemed to have been validly made three days after dispatch by registered
post either at the place of habitual residence or at the elected
domicile.
In the absence of a known habitual residence or an address for
service, the applicant is deemed to have elected an address for service
at the Ministry and the Minister shall effect notification by public
posting. To this end, a notice is posted at the Ministry for a period of
thirty days. The posting of the notice by the Minister is recorded by
the judicial police service. The notice shall state the date of posting
and the nature of the act to be notified. It shall also indicate the
place where the applicant may have the document delivered. Service is
deemed to have been validly made thirty days after the first day of
public posting.
(4)Unless an exception is granted by the Minister, the applicant is obliged to remain in the territory.
(5)The criminal investigation department may, if necessary, conduct a
search of the applicant’s body and a search of the objects carried by
the applicant. Without prejudice to any search carried out for security
reasons, the search of the applicant’s person shall be carried out by a
person of the same sex, in full respect of the principles of human
dignity and physical and psychological integrity. Any object useful for
the examination of the application may be withheld against receipt.
Art. 13.
(1) Before the Minister takes a decision on the admissibility of an
application for international protection, the applicant shall be allowed
to present his/her views on the application of the grounds referred to
in Article 28, paragraph (2) to his/her particular situation. To this
end, and without prejudice to the individual interview provided for in
Article 5 of Regulation (EU) No 604/2013, a personal interview on the
admissibility of the application shall be conducted by an official of
the Minister, with the exception provided for in Article 32 in the case
of a subsequent application.
(2)The applicant is entitled to a personal interview on the substance
of the application for international protection with an officer of the
Minister, without prejudice to sections 28 and 32.
The applicant shall attend the interview and answer in person any
questions put to him or her by the Minister’s officer, who shall conduct
the interview. He may be accompanied by a lawyer who, at the end of the
interview, is given the opportunity to make observations.
The absence of a lawyer does not prevent the Minister’s officers from
conducting a personal interview with the applicant, without prejudice
to section 20.
(3)Where a person has made an application for international
protection on behalf of his or her dependants, each adult dependant
shall be given an opportunity to participate in a personal interview.
(4)The personal interview on the substance of the application may be dispensed with where
(a) the Minister is able to make a positive refugee status decision on the basis of the evidence available; or
(b) the Minister is of the opinion that the applicant is not able or
willing to be interviewed due to enduring circumstances beyond the
applicant’s control. In case of doubt, the Minister shall consult a
health professional to determine whether the circumstances which make
the applicant unfit or unable to participate in an interview are
temporary or permanent.
(5)The absence of a personal interview does not prevent the Minister
from making a decision on an application for international protection.
Notwithstanding section 23(2), when deciding on an application for
international protection, the Minister may take into account the fact
that the applicant did not appear for the personal interview, unless he
or she had good reasons for not appearing.
Where no personal interview is conducted pursuant to paragraph
(4)(b), reasonable efforts shall be made to enable the applicant or,
where appropriate, the dependant to provide further information. In this
case, the absence of a personal interview shall not adversely affect
the Minister’s decision.
Art. 14.
(1)The interview shall normally take place without the presence of
family members, unless the Minister considers that the presence of other
family members is necessary for an adequate examination.
(2)The interview shall take place under conditions which adequately ensure confidentiality.
(3)The Minister shall ensure that the interview is conducted in a
manner that allows the applicant to present the full reasons for the
application.
To this end, the Minister shall
(a) ensure that the person conducting the interview is competent to
take into account the personal and general circumstances surrounding the
application, including the applicant’s cultural background, gender or
sexual orientation, gender identity or vulnerability;
(b) where possible, arrange for the interview with the applicant to
be conducted by a person of the same sex if the applicant so requests,
unless the Minister has reason to believe that the request is based on
grounds that are not related to difficulties on the part of the
applicant in presenting the full reasons for the application
(c) select an interpreter who is able to ensure appropriate
communication between the applicant and the person conducting the
interview. Communication shall be in the language for which the
applicant has expressed a preference unless there is another language
which the applicant understands and in which he or she is able to
communicate clearly. Wherever possible, an interpreter of the same sex
shall be provided to the applicant if he or she so requests, unless the
Minister has reason to believe that the request is based on grounds that
are not related to difficulties on the part of the applicant in
presenting the full reasons for the application;
(d) ensure that the person conducting the interview on the substance
of the application for international protection does not wear a military
or law enforcement uniform;
(e) ensure that interviews with minors are conducted in a
child-friendly manner by an officer with the necessary knowledge of the
special needs of minors.
Art. 15.
(1)During the personal interview on the merits of an application for
international protection, the Minister shall ensure that the applicant
is given a concrete opportunity to present the evidence necessary to
substantiate his/her application as fully as possible, in accordance
with Article 37. This includes the opportunity to provide an explanation
of any missing material and any inconsistencies or contradictions in
the applicant’s statements.
(2)The Minister shall ensure that a detailed and factual report is
made of each interview, containing all the essential elements of the
application. At the end of the interview, the applicant shall be given
the opportunity to comment or clarify either orally or in writing any
translation errors or misunderstandings in the report.
(3) The applicant is asked to confirm that the content of the report
correctly reflects the interview. If this confirmation is refused, the
reasons for the refusal shall be recorded in the applicant’s file. Such a
refusal shall not prevent the Minister from taking a decision on the
application.
(4) If the personal interview with the applicant is recorded by audio
or audiovisual means, a transcript of the recording shall be placed in
the applicant’s file.
In this case, the applicant is not obliged to confirm the content of
the transcript, but may submit written comments or clarifications within
eight days of the transcript being made.
Art. 16.
(1) If the Minister considers it appropriate to assess an application
for international protection in accordance with Article 37 of the Act,
he shall take the necessary steps to ensure that the applicant, with his
consent, undergoes a medical examination for signs of past persecution
or serious harm. The medical examination shall be carried out at the
expense of the State by a doctor appointed by the Minister and the
results shall be communicated to the Minister as soon as possible. In
identifying and documenting signs of torture or other serious forms of
physical or psychological violence, including sexual violence, the
medical examination shall take into account the “Manual on the Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment” established by the 1999 Istanbul
Protocol.
The fact that an applicant refuses to undergo this medical
examination does not prevent the Minister from taking a decision on the
application for international protection.
(2)If no medical examination is carried out in accordance with
subsection (1), the applicant shall be informed that he or she may, on
his or her own initiative and at his or her own expense, take the
necessary steps to undergo a medical examination for signs of past
persecution or serious harm.
(3)The results of the medical examinations referred to in subsections
(1) and (2) shall be assessed by the Minister together with the other
elements of the application.
Art. 17.
(1)In the proceedings referred to in Chapter 2, Section 2 and in the
appeal proceedings referred to in Chapter 2, Section 4, as well as in
the appeals against detention referred to in Article 22, paragraph (6),
the applicant shall be entitled to be assisted on request, and in the
appeal proceedings to be represented (1) The applicant shall have the
right to be represented by a lawyer appointed by the President of the
Bar under the conditions and in the manner provided for in Article 37-1
of the amended Act of 10 August 1991 on the legal profession, unless the
applicant’s appeal is considered to have no tangible prospects of
success.
(2) Free legal assistance and representation shall be granted only in
the context of the proceedings referred to in paragraph (1), to the
exclusion of any other judicial or administrative appeal.
Free legal assistance and representation shall not be granted to an
applicant who is no longer in the territory pursuant to Article 9,
paragraph (2), points b) and c).
Article 18.
The Minister shall ensure that the lawyer who assists and represents
the applicant has access to the information in the applicant’s file on
the basis of which a decision is or will be taken.
Where the disclosure of information or its sources would jeopardise
national security, the security of the organisations or persons who
provided the information or that of the persons to whom it relates, or
where it would be prejudicial to the investigation of an application for
international protection or to international relations, access to such
information or sources shall be reserved for the courts to which an
appeal is made. Nevertheless, in order to preserve the rights of defence
of the applicant, the substance of the information, insofar as it is
relevant to the examination of the application or the decision to
withdraw international protection, shall be communicated to the lawyer
in a manner which takes into account the necessary confidentiality.
Art. 19.
(1)Following the submission of an application for international
protection, the Minister shall be responsible for carrying out, within a
reasonable period of time and before a decision is taken in the first
instance, an assessment of the special procedural safeguards that may be
necessary for certain applicants on account of, inter alia, their age,
sex, sexual orientation or gender identity, disability, serious illness,
mental disorder, or the consequences of torture, rape or other serious
forms of psychological, physical or sexual violence. This assessment may
also be carried out by the Office luxembourgeois de l’accueil et de
l’intégration (OLAI) in the context of the examination of the
applicant’s vulnerability in order to determine any special reception
needs. The information gathered concerning special procedural guarantees
is forwarded by the OLAI, with the applicant’s consent, to the
Minister.
(2)In assessing special procedural safeguards, the Minister may seek
advice from a health professional as referred to in section 16 or from
another expert.
(3)Where an applicant has been identified as an applicant requiring
special procedural safeguards, he or she shall be given adequate
support, including sufficient time, to create the conditions for the
applicant to have effective access to the procedures and to be able to
present the evidence necessary to support his or her application. If
under the accelerated procedure referred to in Article 27 such adequate
support cannot be provided to an applicant in need of special procedural
safeguards, and in particular to an applicant in need of special
procedural safeguards because he or she is a victim of torture, rape or
another serious form of psychological, physical or sexual violence, that
procedure shall not be applied.
(4) The need for special procedural safeguards shall also be taken
into account where such a need arises at a later stage of the procedure,
without necessarily having to start the procedure again.
Article 20.
(1)In order to guarantee the best interests of the child, the
unaccompanied minor shall be appointed, as soon as possible, a
representative, namely a person or organisation designated by the family
court as an ad hoc administrator to assist and represent him or her
during the proceedings relating to his or her application for
international protection and, where appropriate, to perform legal acts
on his or her behalf, and shall be informed thereof immediately. Where
an organisation is appointed as representative, it shall appoint a
person to carry out the obligations of representation in relation to the
unaccompanied minor.
(2) The ad hoc administrator shall have the opportunity to inform the
unaccompanied minor about the meaning and possible consequences of the
personal interview and, where appropriate, how to prepare for it. The ad
hoc administrator or the lawyer shall be present at the interview and
shall be allowed to ask questions or make comments within the framework
set by the interviewing officer. The unaccompanied minor must be
personally present at the interview even if the ad hoc administrator or
lawyer is present.
(3)The Minister may refrain from appointing an ad hoc administrator
to an unaccompanied minor who is likely to reach the age of eighteen
before a decision is taken by the Minister. In this case, the
unaccompanied minor may make the application on his or her own behalf.
(4)The Minister may order medical examinations to determine the age
of the unaccompanied minor where he or she has doubts about the age of
the unaccompanied minor after having taken note of general statements or
any other relevant information.
If doubts about the age of the applicant persist thereafter, it shall be presumed that the applicant is a minor.
(5)Where the Minister causes medical examinations to be carried out, he shall ensure that:
(a) the unaccompanied minor is informed, prior to the examination of
his or her application for international protection and in a language he
or she understands, or may reasonably be presumed to understand, of the
possibility that he or she may have to undergo a medical examination to
determine his or her age. This shall include information on the method
of examination and the possible consequences of the results of the
medical examination for the examination of the application for
international protection, as well as on the consequences of the
unaccompanied minor’s refusal to undergo such a medical examination
(b) the unaccompanied minor or his or her representative consents to a
medical examination to determine the age of the minor concerned
(c) the decision to reject the application for international
protection of an unaccompanied minor who has refused to undergo a
medical examination is not based exclusively on that refusal.
The fact that an unaccompanied minor has refused to undergo a medical
examination does not prevent the Minister from deciding on the
application for international protection.
Art. 21.
(1)Taking into account the best interests of the child, an
unaccompanied minor shall be subject to an accelerated procedure in
accordance with Article 27 only
(a) he/she originates from a country that fulfils the criteria to be
considered as a safe country of origin within the meaning of Article 30;
or
(b) he or she has made a subsequent application for international protection which is not inadmissible under Article 32; or
(c) there are serious reasons for considering that he or she
constitutes a danger to national security or public order, or has been
the subject of an enforced removal order on serious grounds of national
security or public order.
(2) The application of an unaccompanied minor may be considered
inadmissible in accordance with Article 28(2)(c) if a country which is
not a Member State is considered a safe third country for the applicant
under Article 31, provided that the best interests of the minor so
require.
Article 22.
(1) Detention means any measure of isolation of an applicant in a
specific place where the applicant is deprived of his/her freedom of
movement.
Detention is carried out in the Detention Centre established by the Detention Centre Act of 28 May 2009.
Minors may only be detained as a measure of last resort and after it
has been established that other less coercive measures cannot be applied
effectively. Such detention shall be for the shortest possible period
of time.
Unaccompanied minors may only be detained in exceptional circumstances.
Every effort shall be made to place minors in appropriate
accommodation. The best interests of the child shall be taken into
account.
(2)An applicant may only be detained
(a) to establish or verify his or her identity or nationality;
(b) to determine the elements on which the application for
international protection is based which could not be obtained without
detention, in particular where there is a risk that the applicant may
abscond;
(c) where the protection of national security or public order so requires;
(d) in accordance with Article 28 of Regulation (EU) No 604/2013 of
the European Parliament and of the Council of 26 June 2013 establishing
the criteria and mechanisms for determining the Member State responsible
for examining an application for international protection lodged in one
of the Member States by a third-country national or a stateless person,
and where there is a risk of absconding based on a combination of
circumstances establishing that the applicant intends to evade the
authorities for the sole purpose of obstructing a removal order
(e) where the applicant is detained in the context of a return
procedure pursuant to Article 120 of the amended Act of 29 August 2008
on the free movement of persons and immigration for the purpose of
preparing the return and carrying out the removal and where there are
reasonable grounds to believe that the applicant has lodged the
application for international protection for the sole purpose of
delaying or preventing the enforcement of the return decision when he or
she has already had the opportunity to access the asylum procedure; In
this case, the period of placement under this Act shall run from the day
on which the application for international protection was lodged.
(3)The decision to detain shall be ordered in writing by the Minister
on the basis of a case-by-case assessment, where necessary and where
other less coercive measures cannot be effectively applied.
Less coercive measures shall mean
(a) the obligation for the applicant to report regularly, at
intervals to be determined by the Minister, to the Minister’s office or
to another authority designated by the Minister, after surrendering the
original passport and any document proving his or her identity in
exchange for a receipt valid as proof of identity
- b) house arrest in the places determined by the Minister, if the
applicant presents effective guarantees of representation to prevent the
risk of absconding; house arrest may be accompanied, if necessary, by
an electronic surveillance measure which entails a ban on the applicant
leaving the area determined by the Minister. The execution of the
measure is monitored by means of a process that allows the presence or
absence of the applicant within the said perimeter to be detected at a
distance. The implementation of this process may lead to the applicant
being required to wear a device incorporating a transmitter throughout
the period of electronic surveillance. The process used is approved for
this purpose by the Minister. Its implementation must guarantee respect
for the dignity, integrity and privacy of the person. The implementation
of the technical device allowing remote monitoring and the remote
monitoring itself may be entrusted to a private person;
- c) the obligation for the applicant to deposit a financial guarantee
in the amount of five thousand euros to be transferred or paid either
by himself or by a third party to the Caisse de consignation, in
accordance with the relevant provisions of the law of 29 April 1999 on
deposits with the State. This sum is acquired by the State in the event
of the escape or removal by force of the person in whose favour the
deposit was made. The guarantee shall be returned by a written decision
of the Minister instructing the Consignment Fund to do so if the reasons
set out in paragraph (2) are no longer applicable or in the event of
voluntary return.
Less coercive measures shall be ordered in writing and may be applied
jointly. In the event of failure to comply with the obligations imposed
by the Minister or if there is a risk of absconding, the measure shall
be revoked and detention ordered.
(4)The detention order shall state the factual and legal grounds on
which it is based. It shall be issued for the shortest possible period
of time not exceeding three months. Without prejudice to the provisions
of Regulation (EU) No 604/2013 of the European Parliament and of the
Council of 26 June 2013 on detention, the detention order may be
extended by the Minister each time for a period of three months as long
as the grounds set out in paragraph 2, are applicable, but the total
period of detention shall not exceed twelve months.
Administrative procedures related to the grounds for detention set
out in subsection (2) shall be carried out with due diligence. Delays in
administrative procedures which are not attributable to the applicant
shall not justify an extension of the detention period.
(5)Detained applicants shall be informed immediately in writing, in a
language they understand or may reasonably be supposed to understand,
of the reasons for detention and of the procedures for appealing against
the detention decision.
Sections 121(1), (2) and (4) and 122 of the Act of 29 August 2008 on
the Free Movement of Persons and Immigration, as amended, shall apply.
(6) An appeal against the decision to detain or against the decision
ordering a less coercive measure as referred to in subsection (3) may be
lodged with the Administrative Court, which shall act as the court of
first instance. This appeal must be lodged within three months of the
notification. Article 123(4) and (5) shall apply.
Where, as a result of the judicial review, the detention has
ultimately been found to be unlawful, the applicant concerned shall be
released immediately.
Art. 23.
(1) Where an applicant explicitly withdraws his/her application for
international protection, the Minister shall close the examination
without taking a decision and record this information in the applicant’s
file.
(2) Where there are serious grounds for believing that an applicant
has implicitly withdrawn or abandoned his application, the Minister
shall take a decision either to close the examination of the application
or to reject it if it is considered unfounded on the basis of an
appropriate examination of the merits.
It shall be presumed that the applicant has implicitly withdrawn or
abandoned the application for international protection, in particular
where it is established that
(a) he or she has failed to respond to requests to provide
information essential to his or her application under Article 37 or to
appear for a personal interview under Article 13, unless the applicant
proves within eight days that such absence was beyond his or her control
(b) he has absconded or left the place where he was assigned
residence or was detained without authorisation without contacting the
Minister within 24 hours or has failed within one month to comply with
the obligation to report to the Minister, unless he shows that this was
due to circumstances beyond his control.
(3)If, within less than nine months of the closure decision, the
applicant requests that the file be reopened or submits a new
application, the Minister shall reopen the file and resume consideration
of the application at the stage at which it was interrupted. The
decision to close the file can only be challenged by filing an
application to reopen the file.
An applicant’s file may be reopened under the above paragraph only once.
After the nine-month period has elapsed, the decision to close the
file shall be final and the new application shall be considered a
subsequent application in accordance with section 32.
(4)Paragraphs (2) and (3) shall be without prejudice to Article 18(2), subparagraph 2 of Regulation (EU) No 604/2013.
Article 24.
(1)The Office of the United Nations High Commissioner for Refugees
(UNHCR), the members of the Luxembourg Committee on the Rights of the
Child (ORK) and any organisation with an authorisation are authorised
- a) to have access to applicants, including those in detention, at the border and in transit zones;
(b) to have access to information concerning each application for
international protection, the status of the procedure and the decisions
taken, subject to the consent of the applicant
(c) to give its opinion, in the discharge of its supervisory
responsibilities under Article 35 of the 1951 Geneva Convention, to any
competent authority with respect to each application for international
protection and at any stage of the procedure.
(2)Accreditation may be granted to organisations which:
(a) demonstrate regular and sustained information and support
activities for the benefit of applicants for international protection;
(b) meet the conditions of good repute, both in respect of the
members of the organisation’s governing bodies and in respect of the
natural persons responsible for these tasks
- c) undertake to guarantee applicants the protection of their privacy
and respect for their philosophical and religious convictions.
Art. 25.
When gathering the information necessary for the examination of a
particular case, the Minister’s officials shall not disclose to the
alleged perpetrators of persecution or serious harm information
concerning an application for international protection, or the fact that
an application has been made, in such a way as to avoid compromising
the physical integrity of the applicant or his/her dependents, or the
freedom and safety of family members still living in their country of
origin.
Section 2. -Procedures at first instance
Art. 26.
(1)The Minister shall carry out an individual examination of the
application for international protection in compliance with the
procedural guarantees laid down in Section 1 and shall ensure that the
procedure is completed as soon as possible and at the latest within six
months of the application being lodged, without prejudice to an
appropriate and exhaustive examination.
Where an application is subject to the procedure defined by
Regulation (EU) No 604/2013, the six-month period shall begin to run
from the moment when, in accordance with that Regulation, it has been
determined that the examination of the application falls within the
competence of the Grand Duchy of Luxembourg and the applicant is in the
territory and has been taken over by the Minister.
Where a decision cannot be taken within six months, the applicant
concerned shall be informed of the delay and shall, upon request, be
given information concerning the reasons for the delay and the time
limit within which a decision on the application is likely to be taken.
(2)The six-month period provided for in subsection (1) may be extended for a period not exceeding nine additional months where
(a) there are complex factual or legal issues involved;
(b) because a large number of third-country nationals or stateless
persons are simultaneously applying for international protection, it is
very difficult in practice to conclude the procedure within the
six-month period
(c) the delay can be clearly attributed to the applicant’s failure to comply with his or her obligations under Article 12.
Exceptionally, the prescribed time limits may, in duly justified
circumstances, be exceeded by up to three months where this is necessary
to ensure a proper and complete examination of the application for
international protection.
(3)Without prejudice to sections 46 and 51, the conclusion of the
examination procedure may be postponed where the Minister cannot
reasonably be expected to make a decision within the time limits set out
in subsections (1) and (2), because of an uncertain situation in the
country of origin that is expected to be temporary. In such cases, the
Minister shall:
(a) conduct a review of the situation in that country of origin at least every six months;
(b) inform the applicants concerned, within a reasonable time, of the reasons for the postponement.
In any event, the review procedure shall be concluded within a
maximum of 21 months from the date of submission of the application.
(4) The Minister may give priority to deciding on applications that
are clearly well-founded and on applications from vulnerable persons
identified as having special reception needs or as requiring special
examination procedures pursuant to Article 19 or Article 20 in the case
of unaccompanied minors.
Article 27.
(1)Subject to sections 19 and 21, the Minister may decide on the
merits of the application for international protection under an
accelerated procedure in the following cases
(a) the applicant, in making the application and setting out the
facts, has raised only issues that are not relevant to the examination
of whether the applicant qualifies for international protection status;
or
(b) the applicant is from a safe country of origin within the meaning of Article 30 of this Act; or
(c) the applicant has misled the authorities with regard to his or
her identity or nationality by presenting false information or documents
or by withholding relevant information or documents which could have
influenced the decision in a negative way; or
(d) it is likely that the applicant, in bad faith, has destroyed or
disposed of an identity or travel document that would have helped
establish his or her identity or nationality; or
(e) the applicant has made manifestly inconsistent, contradictory,
manifestly false or implausible statements that contradict sufficiently
verified information from the country of origin, making the claim
visibly unconvincing as to his or her status as a beneficiary of
international protection; or
(f) the applicant has made a subsequent application for international protection which is not inadmissible under Article 32; or
(g) the applicant is making an application only in order to delay or
prevent the execution of a previous or imminent decision which would
result in removal; or
(h) the applicant has entered or remained illegally in the territory
and, without good reason, has not presented himself/herself to the
authorities or made an application for international protection as soon
as possible having regard to the circumstances of his/her entry; or
- i) the applicant refuses to comply with the requirement to give fingerprints in accordance with Article 6(3); or
(j) there are serious reasons to consider that the applicant
represents a danger to national security or public order, or the
applicant has been subject to a decision on forced removal on serious
grounds of national security or public order under the Act of 29 August
2008 on the Free Movement of Persons and Immigration, as amended.
(2) The Minister shall take a decision within two months at the
latest from the day on which it appears that the applicant falls under
one of the cases provided for in paragraph (1) above. Without prejudice
to the time limits provided for in Article 26, this time limit may be
exceeded when necessary to ensure a proper and exhaustive examination of
the application for international protection.
Art. 28.
(1)If, pursuant to Regulation (EU) No. 604/2013, the Minister
considers that another Member State is responsible for examining the
application, he/she shall defer a decision on the application until the
decision of the responsible country on the request to take charge or
take back. Where the requested Member State agrees to take charge or
take back the applicant, the Minister shall notify the person concerned
of the decision to transfer him/her to the Member State responsible and
not to examine his/her application for international protection.
(2)In addition to the cases in which an application is not considered
under subsection (1), the Minister may take a decision of
inadmissibility, without checking whether the conditions for granting
international protection are met, in the following cases
(a) international protection has been granted by another Member State of the European Union;
(b) a country which is not a Member State is considered as the applicant’s first country of asylum pursuant to Article 29
- c) a country which is not a Member State is considered as a safe third country for the applicant pursuant to Article 31
(d) the application concerned is a subsequent application, in which
no new elements or facts relevant to the examination of whether the
applicant qualifies as a beneficiary of international protection appear
or are presented by the applicant; or
(e) a dependant of the applicant submits an application after having,
in accordance with Article 5, consented to have his or her case dealt
with in an application made on his or her behalf, and there are no
circumstances of the dependant that would justify a separate
application;
(f) the applicant is a citizen of the European Union.
Art. 29.
A country may be considered as the first country of asylum for a particular applicant, if the applicant
(a) has been recognised as a refugee in that country and can still avail himself/herself of this protection; or
(b) otherwise enjoys sufficient protection in that country, including
the benefit of the principle of non-refoulement, provided that he or
she is readmitted to that country.
In applying the concept of first country of asylum to an applicant’s
personal circumstances, the Minister shall take into account the
provisions of section 31(1). The applicant shall be entitled to
challenge the application of the concept of first country of asylum to
his/her personal circumstances.
Section 30.
(1)A third country designated as a safe country of origin in
accordance with subsection (2) may only be considered as such for a
particular applicant after an individual examination of the application
submitted by this person if the applicant is a national of this country
or if the person concerned is stateless and if this is his country of
former habitual residence, and if the applicant has not shown serious
reasons for considering that this is not a safe country of origin
because of his personal situation, taking into account the conditions
required to qualify as a beneficiary of international protection.
(2)A Grand-Ducal Regulation shall designate a country as a safe
country of origin if it is established that there is generally and
consistently no persecution within the meaning of the Geneva Convention
based on a range of information sources, including in particular
information from other Member States, the AAIB, the UNHCR, the Council
of Europe and other relevant international organisations.
The following criteria will be taken into account for the designation of a country as a safe country of origin
(a) observance of the rights and freedoms provided for in the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, the International Covenant on Civil and Political Rights or
the United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment;
(b) respect for the principle of non-refoulement as provided for in the Geneva Convention;
(c) the provision of an effective system of remedies against violations of these rights and freedoms.
The situation in third countries designated as safe countries of
origin in accordance with this paragraph shall be regularly reviewed by
the Minister.
Art. 31.
(1)The Minister may apply the safe third country concept only when he
or she is satisfied that in the third country concerned the applicant
will be treated in accordance with the following principles
(a) the applicant has no reason to fear for his or her life or
liberty on account of race, religion, nationality, membership of a
particular social group or political opinion
(b) there is no risk of serious harm within the meaning of Chapter 3 of this Act;
(c) the principle of non-refoulement is respected in accordance with the Geneva Convention
(d) the prohibition under international law of removal measures
contrary to the prohibition of torture and cruel, inhuman or degrading
treatment is respected
(e) the possibility exists to apply for refugee status and, if
granted, to receive protection in accordance with the Geneva Convention.
(2) The application of the safe third country concept is subject to the following rules:
(a) a connecting link must exist between the applicant and the third
country concerned, on the basis of which it would be reasonable for the
applicant to travel to that country;
- b) the Minister must be satisfied that the safe third country
concept can be applied to a specific country or to a specific applicant.
To this end, the Minister shall carry out a case-by-case examination of
the safety of the country for an applicant;
(c) the applicant shall have the right to challenge the application
of the safe third country concept on the grounds that the third country
is not safe in his/her particular case. The applicant is furthermore
entitled to challenge the existence of a link between him/herself and
the third country in accordance with point (a).
(3) Where the Minister enforces a decision based solely on the safe
third country concept, the Minister shall inform the applicant
accordingly and provide him or her with a document informing the
authorities of the third country, in the language of that country, that
the application has not been considered on its merits. Where the third
country does not allow the applicant to enter its territory, the
applicant may initiate proceedings in accordance with the provisions of
Chapter 2, Section 1 of this Act.
Article 32.
(1)A subsequent application is a new application for international
protection submitted after a final decision has been taken on a previous
application, including the case where the applicant has explicitly
withdrawn the application and the case where the Minister has rejected
an application following its implicit withdrawal, in accordance with
Article 23, paragraphs (2) and (3).
(2)Where a person who has applied for international protection makes
further representations or submits a subsequent application, those
further representations or the elements of the subsequent application
shall be considered as part of the examination of the previous
application by the Minister or, if the Minister’s decision is the
subject of an appeal to a court of law for reversal, by the court to
which the application is made.
(3)The Minister shall conduct a preliminary examination of the new
facts or evidence submitted by the applicant in order to decide on the
admissibility of the application under section 28(2)(d). The Minister
may conduct the preliminary examination by limiting it to written
submissions made outside the framework of an interview.
(4) If the indicated new facts or elements significantly increase the
likelihood that the applicant qualifies for international protection,
the examination of the application shall be continued, provided that the
applicant concerned was, through no fault of his own, unable to assert
them during the previous proceedings, including the litigation phase.
(5) Where a person transferred to the Grand Duchy of Luxembourg under
Regulation (EU) No 604/2013 has made further declarations or submitted a
subsequent application in the transferring Member State, such further
declarations or applications shall be examined in accordance with the
foregoing provisions.
Section 3. -Withdrawal of international protection
Art. 33.
(1)Withdrawal of international protection means the decision by which
the Minister revokes, refuses to renew or terminates the refugee or
subsidiary protection status of a person in accordance with Articles 47
and 52.
(2)A review for the purpose of withdrawing the international
protection of a person may be initiated by the Minister upon the
appearance of evidence or new facts indicating that the validity of the
person’s international protection should be reconsidered.
(3)The person concerned shall be informed in writing that the
Minister is conducting a review of his or her entitlement to
international protection and the reasons for the review, and shall have
the right to present, in a personal interview or in writing, the reasons
why international protection should not be withdrawn.
(4)The Minister shall ensure that his officers obtain accurate and
up-to-date information from a variety of sources, including the AAIB and
UNHCR, on the general situation in the countries of origin of the
persons concerned.
(5) Where information on an individual case is collected for the
purpose of the review of international protection, the Minister shall
ensure that it is not obtained from the perpetrator(s) of the
persecution or serious harm, which would result in the perpetrator(s)
being directly informed of the fact that the person concerned is in
receipt of international protection and that his or her status is being
reviewed, or that it would not jeopardise the physical integrity of the
person or his or her dependants, or the liberty and security of his or
her family members who are still living in his or her home country.
(6) In case of a decision to withdraw international protection, Articles 17 and 24 shall apply.
Section 4. -Conditions for the Minister’s decisions and appeal procedures
Art. 34.
(1)The Minister’s decisions on international protection shall be
communicated to the applicant in writing within a reasonable time.
Reasons shall be given for any negative decision in fact and in law and
the applicant shall be informed in writing of the possibilities for
appeal.
Where the applicant is not assisted or represented by a lawyer, the
applicant shall be informed of the outcome of the Minister’s decision in
a language that the applicant understands or may reasonably be supposed
to understand.
For the purposes of Article 5(2), and where an application is based
on the same grounds, a single decision shall be adopted for all
dependants, unless such action would lead to disclosure of an
applicant’s particular circumstances, which could be detrimental to his
or her interests, in particular in cases of persecution based on gender,
sexual orientation, gender identity or age. In such cases, a separate
decision shall be communicated to the person concerned.
(2)A decision of the Minister shall be deemed to be a return
decision, with the exception of decisions taken pursuant to section
28(1) and (2)(d). The order to leave the country shall contain a time
limit for leaving the country and the country to which the applicant is
to be returned in the event of automatic enforcement. To comply with the
order to leave the territory, the applicant has 30 days from the day
the return order becomes final to apply for an assisted return scheme.
The applicant is obliged to leave the territory without delay from the
day the return decision becomes final if his or her behaviour
constitutes a danger to public order, public safety or national
security.
If necessary, the Minister may grant a period of voluntary departure
longer than 30 days, taking into account the circumstances of each case,
such as the length of stay, the existence of school children and other
family and social ties.
Articles 103, 111(3)(c), 112, 116, 117, 118 and 120 to 132 of the
amended Act of 29 August 2008 on the free movement of persons and
immigration shall apply.
By way of exception to the above, no time limit shall be granted to
an applicant who has already been served with a return decision pursuant
to Article 111 of the aforementioned Act of 29 August 2008.
(3) Appeals for reconsideration do not interrupt the time limits for appeal provided for in Article 35.
Art. 35.
(1) An appeal for review shall be lodged with the administrative
court against decisions to refuse or withdraw international protection
and against the order to leave the territory. The two appeals must be
lodged in a single application, failing which the separate appeal shall
be inadmissible. The appeal must be lodged within one month of the
notification. By way of derogation from the legislation on proceedings
before the administrative courts, there may not be more than one
statement of case from each party, including the application. The
statement of defence must be submitted within two months of service of
the application.
An appeal for reversal is available before the administrative court
against the closure decisions provided for in Article 23 and against the
order to leave the territory. The two appeals must be lodged in a
single introductory application, failing which the separate appeal is
inadmissible. The appeal must be lodged within one month of the date on
which the decision to close the procedure becomes final. By way of
derogation from the legislation on proceedings before the administrative
courts, there may not be more than one statement of case from each
party, including the statement of claim. The statement in response must
be provided within two months of the service of the application.
Against the decision of the administrative tribunal, an appeal may be lodged with the administrative court.
The appeal must be lodged within one month of the notification by the
clerk’s office. By way of derogation from the legislation on
proceedings before the administrative courts, there may not be more than
one statement of case from each party, including the appeal petition.
(2) An appeal to the administrative court for reversal of the
decision of the Minister to decide on the merits of the application for
international protection under an accelerated procedure and the decision
to refuse the application for international protection taken under this
procedure, as well as the order to leave the territory, is available.
The appeal against these three decisions must be the subject of a single
introductory application, failing which the separate appeal is
inadmissible. It must be lodged within fifteen days of notification. The
President of the Chamber or the judge replacing him or her shall give a
decision within one month of the lodging of the application. This time
limit is suspended between 16 July and 15 September, without prejudice
to the judge’s right to give a ruling within a shorter period. There may
be no more than one pleading from each party, including the originating
application. The decision of the President of the Chamber or the judge
replacing him or her may not be appealed.
If the President of the Chamber or the judge replacing him or her
considers that the appeal is manifestly unfounded, he or she shall
dismiss the applicant’s application for international protection. If, on
the other hand, he considers that the appeal is not manifestly
unfounded, he refers the case back to the administrative court to
decide.
An appeal against the decision of the administrative court may be
lodged with the Administrative Court within the time limit and in the
form provided for in subsection (1), paragraph 4.
(3) An appeal for annulment may be lodged with the Administrative
Court against a decision of inadmissibility taken pursuant to section
28(2). The appeal must be lodged within fifteen days of notification.
The administrative court shall give its decision within two months of
the lodging of the application. This time limit is automatically reduced
to one month if the applicant is subject to a placement measure in
accordance with Article 22. By way of derogation from the legislation on
proceedings before the administrative courts, there may not be more
than one statement of case from each party, including the introductory
application. The decision of the administrative court is not subject to
appeal.
(4) An appeal against the transfer decision referred to in section
28(1) shall be lodged with the administrative court. The appeal must be
lodged within fifteen days of notification. The administrative court
shall give its decision within one month of the lodging of the
application. By way of derogation from the legislation on proceedings
before the administrative courts, there may not be more than one brief
from each party, including the introductory application. The decision of
the administrative court is not subject to appeal.
Article 36.
(1)The appeals provided for in section 35(1), (2) and (4) shall have
suspensive effect. The Minister shall authorise the applicant to remain
in the country until the expiry of the time limits set for the exercise
of appeals and, if he finds that this right has been exercised within
the time limit, pending the outcome of the appeal.
(2) The appeals provided for in section 35(3), with the exception of
an appeal against a decision of inadmissibility taken pursuant to
section 28(2)(c), shall not have suspensive effect. Without prejudice to
section 9(2), the applicant may file an application for interim relief
with the president of the administrative court to obtain a stay of
execution or a safeguard measure, and the Minister’s decision shall not
be executed until the interim relief order has been issued.
(3)The applicant requiring special procedural safeguards and the
unaccompanied minor shall have one week to file the application for
interim relief under subsection (2).
Chapter 3. – Regulations on the conditions to be met by third country
nationals or stateless persons in order to be granted international
protection, a uniform status for refugees and persons eligible for
subsidiary protection
Art. 37.
(1)It is the responsibility of the applicant to present, as quickly
as possible, all the elements necessary to support his/her application
for international protection. The Minister shall assess, in cooperation
with the applicant, the relevant elements of the application.
(2)The material referred to in subsection (1) shall consist of the
applicant’s statements and any documents in the applicant’s possession
relating to the applicant’s age, background, including that of relevant
relatives, identity, nationality or nationalities, country or countries
and place or places of previous residence, previous claims for refugee
protection, travel itinerary, travel documents, and the reasons for the
application for international protection.
(3)The Minister shall make an individual assessment of an application for international protection taking into account
(a) all relevant facts about the country of origin at the time of
deciding the application, including the laws and regulations of the
country of origin and how they are applied;
(b) relevant information and documents submitted by the applicant,
including information as to whether the applicant has been or may be
subject to persecution or serious harm
(c) the individual status and personal circumstances of the
applicant, including factors such as background, gender and age, in
order to determine whether, in the light of the applicant’s personal
circumstances, the acts to which the applicant has been or may be
exposed could be considered persecution or serious harm
(d) whether, since leaving the country of origin, the applicant has
engaged in activities the sole or main purpose of which was to create
the conditions necessary to make an application for international
protection, in order to determine whether such activities would expose
the applicant to persecution or serious harm if returned to that country
(e) whether it is reasonable to believe that the applicant would be
able to avail himself or herself of the protection of another country
whose citizenship he or she could claim.
(4)The fact that an applicant has already been persecuted or suffered
serious harm or has been subject to direct threats of such persecution
or harm is a serious indication of the applicant’s well-founded fear of
persecution or real risk of serious harm, unless there are reasonable
grounds for believing that such persecution or serious harm will not be
repeated.
(5) Where certain aspects of the applicant’s statements are not
supported by documentary or other evidence, these aspects do not require
confirmation where the following conditions are met
(a) the applicant has made a genuine effort to support the claim;
(b) all relevant material available to the applicant has been
presented and a satisfactory explanation has been given for the lack of
other evidence
(c) the applicant’s statements are considered coherent and plausible
and are not contradicted by the general and specific information known
and relevant to his or her application
(d) the applicant has made his or her application for international
protection as soon as possible, unless he or she can show good reasons
for not doing so; and
(e) the general credibility of the applicant could be established.
Art. 38.
(1)A well-founded fear of persecution or a real risk of suffering
serious harm may be based on events that have taken place since the
applicant left the country of origin.
(2)A well-founded fear of being persecuted or a real risk of
suffering serious harm may be based on activities carried out by the
applicant since leaving the country of origin, in particular if it is
established that the activities on which this application is based
constitute the expression and continuation of beliefs or orientations
held in the country of origin.
(3) Without prejudice to the Geneva Convention, an applicant who
makes a subsequent application shall not normally be granted refugee
status, if the risk of persecution is based on circumstances which the
applicant has created by his or her own action since leaving the country
of origin.
Art. 39.
The actors of persecution or serious harm may be
- a) The State;
- b) parties or organisations that control the State or a significant part of its territory
(c) non-state actors, if it can be demonstrated that the actors
referred to in (a) and (b), including international organisations, are
unable or unwilling to provide protection from persecution or serious
harm.
Art. 40.
(1) Protection from persecution or serious harm can only be granted by:
- a) the State, or
(b) parties or organizations, including international organizations,
which control the State or a substantial part of its territory, provided
that they are willing and able to offer protection within the meaning
of subsection (2).
(2)Protection from persecution or serious harm must be effective and
not temporary. Such protection is generally afforded where the actors
referred to in paragraph (1) (a) and (b) take reasonable steps to
prevent persecution or serious harm, inter alia, where they have an
effective judicial system for detecting, prosecuting and punishing acts
constituting persecution or serious harm, and where the applicant has
access to such protection.
(3) In determining whether an international organisation controls a
State or a substantial part of its territory and whether it provides
protection within the meaning of subsection (2), the Minister shall take
into account any guidance provided by the relevant acts of the Council
of the European Union.
Article 41.
(1)In assessing an application for international protection, the
Minister may consider that an applicant is not in need of international
protection if, in a part of the country of origin
(a) they do not have a well-founded fear of persecution or a real risk of serious harm; or
(b) they have access to protection from persecution or serious harm
within the meaning of section 40 and can safely and lawfully travel to
and obtain permission to enter that part of the country and can
reasonably be expected to settle there.
(2)In considering whether an applicant has a well-founded fear of
persecution or a real risk of serious harm, or has access to protection
from persecution or serious harm in a part of the country of origin in
accordance with subsection (1), the Minister shall, in determining the
application, take into account the general conditions in that part of
the country and the personal circumstances of the applicant in
accordance with section 37. To this end, the Minister shall ensure that
accurate and up-to-date information is obtained from relevant sources,
such as the United Nations High Commissioner for Refugees and the
European Asylum Support Office.
Art. 42.
(1)The acts considered as persecution within the meaning of Article 1A of the Geneva Convention must:
(a) be sufficiently serious in nature or repeated to constitute a
serious violation of fundamental human rights, in particular of those
rights from which no derogation is possible under Article 15(2) of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms; or
(b) be an accumulation of various measures, including violations of
human rights, which is sufficiently serious to affect an individual in a
manner comparable to that set out in (a).
(2)Acts of persecution within the meaning of subsection (1) may take, inter alia, the following forms
(a) physical or mental violence, including sexual violence;
(b) legal, administrative, police and/or judicial measures which are
discriminatory in themselves or implemented in a discriminatory manner
(c) prosecution or punishment that is disproportionate or discriminatory
(d) the denial of a judicial remedy resulting in a disproportionate or discriminatory sanction;
- e) prosecution or punishment for refusal to perform military service
in the event of a conflict where military service would involve
committing crimes or performing acts falling within the scope of the
grounds for exclusion referred to in Article 45(2)
(f) acts directed against persons on account of their sex or against children.
(3)In accordance with Article 2(f), there must be a link between the
grounds mentioned in Article 43 and acts of persecution within the
meaning of subsection (1) or the lack of protection against such acts.
Section 43.
(1)In assessing the grounds for persecution, the Minister shall take into account the following
(a) the concept of race includes, in particular, considerations of colour, descent or membership of a certain ethnic group
(b) the concept of religion shall include, in particular, holding
theistic, non-theistic or atheistic beliefs, participation in or
non-participation in private or public worship, whether alone or in
community, other religious acts or expressions of religious opinion, and
forms of personal or communal behaviour based on or dictated by
religious beliefs
(c) the concept of nationality is not limited to citizenship or the
lack thereof, but includes, in particular, membership of a group united
by its cultural, ethnic or linguistic identity, its common geographical
or political origins, or its relationship with the population of another
State
(d) a group is considered a certain social group when, in particular
– its members share an innate characteristic or a common history that
cannot be changed, or a characteristic or belief that is so essential
to identity or consciousness that a person should not be required to
renounce it; and
– that group has its own identity in the country in question because it is perceived as different by the surrounding society.
Depending on the conditions in the country of origin, a specific
social group may be a group whose members share a common sexual
orientation. Sexual orientation cannot be understood to include acts
that are deemed criminal under Luxembourg law. Gender aspects, including
gender identity, for the purpose of recognising membership of a certain
social group or identifying a characteristic of such a group shall be
given due consideration;
(e) the concept of political opinion includes, in particular,
opinions, ideas or beliefs in a field related to the potential actors of
persecution and their policies and methods, whether or not those
opinions, ideas or beliefs have been translated into action by the
applicant.
(2)In assessing whether an applicant has a well-founded fear of
persecution, it is immaterial whether he or she actually possesses the
characteristic of race, religion, nationality, membership of a
particular social group or political opinion that is the cause of the
persecution, provided that this characteristic is attributed to him or
her by the actor of persecution.
Art. 44.
(1) A third country national or stateless person shall cease to be a refugee in the following cases
(a) if he has voluntarily re-availed himself of the protection of the country of his nationality; or
(b) He has voluntarily reacquired his nationality after losing it; or
(c) he or she has acquired a new nationality and enjoys the protection of the country of his or her nationality; or
(d) he/she has voluntarily re-established himself/herself in the
country which he/she left or outside which he/she remained owing to fear
of persecution; or
(e) he can no longer continue to refuse to avail himself of the
protection of the country of his nationality, the circumstances in
connection with which he was recognised as a refugee having ceased to
exist;
(f) if, in the case of a stateless person, he is able to return to
the country of his former habitual residence, the circumstances in
connection with which he was recognised as a refugee have ceased to
exist.
(2)For the purposes of subsection (1)(e) and (f), the Minister shall
consider whether the change in circumstances is sufficiently significant
and not temporary that the refugee’s fear of persecution can no longer
be regarded as well-founded.
(3)Subsection (1)(e) and (f) shall not apply to a refugee who is able
to invoke compelling reasons arising out of previous persecution for
refusing to avail himself of the protection of the country of his
nationality or, in the case of a stateless person, of the country in
which he had his habitual residence.
Art. 45.
(1) A third country national or a stateless person is excluded from refugee status
- a) if he/she is covered by Article 1, Section D, of the Geneva
Convention, concerning protection or assistance by a United Nations body
or agency other than the Office of the United Nations High Commissioner
for Refugees. If such protection or assistance ceases for any reason,
without the fate of such persons having been finally settled in
accordance with the relevant resolutions of the General Assembly of the
United Nations, such persons shall ipso facto be entitled to avail
themselves of this Act;
(b) he is considered by the competent authorities of the country in
which he has established his residence as having the rights and
obligations which are attached to the possession of the nationality of
that country, or rights and obligations equivalent thereto.
(2) A third country national or a stateless person is excluded from
refugee status where there are serious reasons for considering that
(a) he has committed a crime against peace, a war crime, or a crime
against humanity within the meaning of international instruments drawn
up to make provision in respect of such crimes;
(b) that he has committed a serious non-political crime outside
Luxembourg before being admitted as a refugee, i.e. before the date on
which he obtained a residence permit issued on the basis of refugee
status; particularly cruel actions, even if committed with an allegedly
political objective, may be classified as serious non-political crimes
(c) he has been guilty of acts contrary to the purposes and
principles of the United Nations as set forth in the Preamble and
Articles 1 and 2 of the Charter of the United Nations.
(3)Paragraph (2) applies to persons who instigate or otherwise participate in the crimes or acts referred to in that paragraph.
Art. 46.
The Minister shall grant refugee status to any third-country national
or stateless person who qualifies as a refugee in accordance with the
foregoing articles.
Art. 47.
(1)The Minister shall revoke the refugee status granted to a
third-country national or a stateless person, where the refugee has
ceased to enjoy such status under Article 44.
(2)Without prejudice to the obligation of the refugee to declare all
relevant facts and to provide any relevant evidence available to him,
the Minister shall prove on a case-by-case basis that the person
concerned has ceased to be or never was a refugee.
(3)The Minister shall revoke the refugee status of any third country
national or stateless person if the Minister establishes, after granting
refugee status, that:
(a) the refugee is or should have been excluded from refugee status under section 45;
(b) any alteration or omission of facts by the Minister, including
the use of false documents, was material to the decision to grant
refugee status.
(4)The Minister may revoke the status of a refugee
(a) where there are reasonable grounds for regarding the refugee as a threat to the security of the country;
(b) where, having been finally convicted of a particularly serious
crime, the person constitutes a threat to the society of the country.
(5)In the circumstances described in subsection (4), the Minister may
decide not to grant refugee status where such a decision has not yet
been made.
(6)Persons to whom paragraphs (4) and (5) apply are entitled to enjoy
the rights provided for in Articles 3, 4, 16, 22, 31, 32 and 33 of the
Geneva Convention or similar rights, as long as they are in Luxembourg
territory.
Art. 48.
Grave breaches are:
(a) the death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in his/her country of origin; or
- c) serious and individual threat to the life or person of a civilian
by reason of indiscriminate violence in internal or international armed
conflict.
Art. 49.
(1)A third-country national or a stateless person ceases to be a
person eligible for subsidiary protection when the circumstances which
justified the granting of such protection cease to exist or have changed
to such an extent that such protection is no longer needed.
(2)For the purposes of subsection (1), the Minister shall take
account of the change in circumstances, determining whether the change
in circumstances is sufficiently significant and not temporary that the
person eligible for subsidiary protection is no longer at real risk of
serious harm.
(3)Subsection (1) does not apply to a beneficiary of subsidiary
protection status who is able to rely on compelling reasons relating to
previous serious harm for refusing to avail himself or herself of the
protection of the country of nationality or, in the case of a stateless
person, the country of former habitual residence.
Art. 50.
(1) A third-country national or a stateless person shall be excluded
from the persons eligible for subsidiary protection if there are serious
grounds for considering that
(a) he or she has committed a crime against peace, a war crime or a
crime against humanity within the meaning of international instruments
drawn up to make provision in respect of such crimes;
(b) that he or she has committed a serious non-political crime;
(c) he or she has been guilty of acts contrary to the purposes and
principles of the United Nations as set forth in the Preamble and
Articles 1 and 2 of the Charter of the United Nations
(d) he represents a threat to the society or security of Luxembourg.
(2)Subsection (1) applies to persons who instigate or otherwise
participate in the crimes or acts referred to in that subsection.
(3)The Minister may exclude any third-country national or stateless
person from the persons eligible for subsidiary protection if, prior to
his or her admission to Luxembourg, he or she has committed one or more
crimes which do not fall within the scope of paragraph (1) and which
would be punishable by imprisonment if committed in Luxembourg, and if
he or she left his or her country of origin only with the aim of
escaping punishment as a result of these crimes.
Art. 51.
The Minister shall grant subsidiary protection status to a
third-country national or a stateless person who qualifies as a person
eligible for subsidiary protection in accordance with the preceding
articles.
Art. 52.
(1)The Minister shall revoke the status conferred by subsidiary
protection when the person concerned has ceased to be a person eligible
for subsidiary protection under Article 49.
(2)The Minister may revoke refugee status where it is found, after
the grant of subsidiary protection status, that the person concerned
should have been excluded from being a person eligible for subsidiary
protection.
(3)The Minister shall revoke subsidiary protection status if:
(a) after the granting of such status, it is found that the person
concerned is or should have been excluded from persons eligible for
subsidiary protection under section 50(1) and (2);
(b) alterations or omissions of facts on his part, including the use
of false documents, were a determining factor in the decision to grant
subsidiary protection status.
(4) Without prejudice to the obligation of any third-country national
or stateless person to declare all relevant facts and to provide any
relevant evidence available to him or her, the Minister shall prove, on a
case-by-case basis, that a person has ceased to be or is not eligible
for subsidiary protection under subsections (1), (2) and (3) of this
Article.
Chapter 4. – Content of international protection
Art. 53.
(1)This chapter, which deals with the content of international
protection, is without prejudice to the rights enshrined in the Geneva
Convention.
(2) This Chapter applies to both refugees and persons eligible for subsidiary protection, unless otherwise specified.
(3) In the application of this Chapter, account shall be taken of the
specific situation of vulnerable persons such as minors, unaccompanied
minors, disabled persons, elderly persons, pregnant women, single
parents with minor children, victims of trafficking in human beings,
persons with mental disorders and persons who have been subjected to
torture, rape or other serious forms of psychological, physical or
sexual violence. The best interests of the child shall be a primary
consideration.
(4)Subsection (3) shall only apply to persons whose special needs
have been determined after an individual assessment of their situation
in accordance with section 19.
Section 54.
(1)The Minister shall respect the principle of non-refoulement in accordance with his or her international obligations.
(2)Where the Minister is not prohibited from doing so by virtue of
the international obligations referred to in subsection (1), the
Minister may return a refugee, whether or not he or she is formally
recognized as such, where
(a) where there are serious grounds for considering that he is a threat to the security of Luxembourg; or
(b) having been finally convicted of a particularly serious crime, he constitutes a threat to Luxembourg society.
(3)The Minister may refuse to grant a residence permit to a refugee
who falls within the scope of paragraph (2), revoke it, or refuse to
renew it.
Art. 55.
The Minister shall provide beneficiaries of international protection,
as soon as possible after they have been granted refugee status or
subsidiary protection status, with access to information specifying, in a
language they understand or may reasonably be presumed to understand,
the rights and obligations pertaining to the respective protection
status.
Art. 56.
(1)The Minister shall ensure that the family unit can be maintained.
The Minister may decide that the provisions of this section shall apply
to other close relatives who were living in the family of the
beneficiary at the time of departure from the country of origin and who
were wholly or mainly dependent on the beneficiary.
(2)The Minister shall ensure that family members of the beneficiary
of refugee or subsidiary protection status who individually do not
qualify for such status may claim the benefits referred to in sections
57 to 66, insofar as this is compatible with the personal legal status
of the family member.
(3)Subsections (1) and (2) shall not apply where the family member is
or would be excluded from the benefit of international protection.
(4)Notwithstanding subsections (1) and (2), the Minister may refuse,
limit or withdraw the benefits referred to therein for reasons of
national security or public order.
Section 57.
(1) As soon as possible after international protection has been
granted, beneficiaries of refugee status and beneficiaries of subsidiary
protection status shall be issued with a residence permit valid for a
period of at least three years and renewable, unless compelling reasons
of national security or public order prevent this.
(2)A residence permit issued in accordance with subsection (1) shall
constitute a residence permit issued by the Minister to a third-country
national or a stateless person to reside in his territory. It is drawn
up in the form provided for by Council Regulation (EC) No 380/2008 of 18
April 2008 amending Regulation (EC) No 1030/2002 laying down a uniform
format for residence permits for third-country nationals. It shall
contain the words “international protection – refugee status” or
“international protection – subsidiary protection”. The residence permit
automatically lapses when the Minister revokes the refugee status or
the status conferred by the subsidiary protection.
Art. 58.
(1) Beneficiaries of refugee status shall obtain a travel document
drawn up in accordance with the Annex to the Geneva Convention and
intended to enable them to travel outside Luxembourg territory, unless
compelling reasons of national security or public order prevent this.
(2) Beneficiaries of subsidiary protection status who are unable to
obtain a national passport shall be issued with documents allowing them
to travel, unless there are compelling reasons of national security or
public order.
Art. 59.
(1)Beneficiaries of international protection shall be allowed to
engage in employed or self-employed activities, subject to the rules
generally applicable in the sector of activity concerned and in the
public services, immediately after the protection has been granted.
(2)Activities such as employment-related training opportunities for
adults, vocational training, including skills training, practical
workplace experience and counselling services provided by the employment
agency are offered to beneficiaries of international protection under
conditions equivalent to those applicable to Luxembourg nationals.
(3) Luxembourg legislation applies with regard to remuneration,
access to social security schemes related to employed or self-employed
activities, and other conditions of employment.
Art. 60.
(1) Minors who have been granted international protection shall
obtain full access to the education system under the same conditions as
Luxembourg nationals.
(2) Adults who have been granted international protection have access
to the general education system as well as to further training or
retraining under the same conditions as third-country nationals legally
residing in Luxembourg territory.
(3) The State guarantees equal treatment between beneficiaries of
international protection and Luxembourg nationals in the context of
existing procedures for the recognition of diplomas, certificates or
other formal qualifications.
(4) Full access of beneficiaries of international protection who are
unable to provide documentary evidence of their qualifications to
appropriate systems of assessment, validation and accreditation of their
previous training is facilitated.
Articles 4 and 5 of the Law of 19 June 2009 transposing Directive
2005/36/EC as regards a) the general system for the recognition of
training qualifications and professional qualifications; b) the
temporary provision of services shall apply to them.
Art. 61.
Beneficiaries of international protection shall receive the same
necessary social assistance as that provided for Luxembourg nationals.
Art. 62.
(1) Beneficiaries of international protection shall have access to
health care under the same conditions of access as Luxembourg nationals.
(2) Appropriate health care, including the treatment of mental
disorders that may be required for beneficiaries of international
protection who have special needs, such as pregnant women, disabled
persons, persons who have a mental disability, and persons who have a
mental illness, shall be guaranteed under the same conditions of access
as for Luxembourg nationals, persons with disabilities, persons who have
been victims of torture, rape or any other serious form of moral,
physical or sexual violence or minors who have been victims of any form
of abuse, neglect, exploitation, torture, cruel, inhuman and degrading
treatment or armed conflict.
Art. 63.
(1) As soon as possible after the granting of international
protection, the representation of unaccompanied minors shall be ensured,
by an ad hoc administrator or, if necessary, by an organisation
responsible for the care and welfare of the minors, or by any other
appropriate form of representation.
(2)The needs of unaccompanied minors shall be given due consideration by the appointed ad hoc administrator or representative.
(3)Unaccompanied minors shall be accommodated
(a) with adult relatives; or
(b) with a foster family; or
(c) in centres specialised in accommodation for minors; or
(d) in other accommodation suitable for minors.
In this context, the views of the child should be taken into account, depending on his or her age and maturity.
(4) As far as possible, siblings shall not be separated, having
regard to the best interests of the juvenile concerned and in particular
to his or her age and maturity. In the case of unaccompanied minors,
changes of residence shall be kept to a minimum.
(5) If an unaccompanied minor is granted international protection,
family members whose tracing has not yet started shall be traced as soon
as possible after the granting of international protection, while
protecting the best interests of the minor. If the search has already
begun, the search operations shall be continued, if necessary. In cases
where the life or physical integrity of a minor or his or her relatives
would be at risk, in particular if they have remained in the country of
origin, the collection, processing and dissemination of information
concerning these persons shall be kept confidential.
(6) Staff dealing with unaccompanied minors have had or are receiving appropriate training regarding their needs.
Art. 64.
Beneficiaries of international protection have access to housing
under conditions equivalent to those enjoyed by nationals of other third
countries legally residing on Luxembourg territory.
Art. 65.
Persons enjoying international protection may move freely within Luxembourg territory.
Art. 66.
In order to facilitate the integration of beneficiaries of
international protection into society, the Government shall guarantee
them access to integration programmes that it deems appropriate in order
to take into account the specific needs of beneficiaries of refugee
status or subsidiary protection status, or shall create the
preconditions for access to such programmes.
Chapter 5. – Temporary protection
Art. 67.
The purpose of this chapter is to grant temporary protection in the
event of a mass influx of displaced persons from third countries who
cannot return to their country of origin.
Art. 68.
Temporary protection does not prejudge the recognition of the status conferred by international protection.
Art. 69.
The temporary protection regime is triggered by a decision of the
Council of the European Union taken under the conditions defined by
Articles 4 to 6 of Directive 2001/55/EC of 20 July 2001 on minimum
standards for giving temporary protection in the event of a mass influx
of displaced persons and on measures promoting a balance of efforts
between Member States in receiving such persons and bearing the
consequences thereof.
Art. 70.
(1) The criminal investigation department shall carry out any checks
necessary to establish the identity of the person applying for temporary
protection. It may, if necessary, carry out a body search of the
applicant and a search of his belongings, it being understood that this
search shall be carried out with respect for human dignity. He may take
fingerprints and photographs of the person concerned. He shall conduct a
hearing of the person concerned and draw up a report.
(2) The identity documents of persons applying for temporary
protection shall be kept, against receipt, at the Ministry for the
duration of the temporary protection.
Art. 71.
(1)Persons may be excluded from temporary protection if
- a) for whom there are serious reasons to believe that:
- i) they have committed a crime against peace, a war crime or a crime
against humanity, within the meaning of the international instruments
drawn up to make provision in respect of such crimes;
(ii) that they have committed a serious non-political crime outside
the Grand Duchy of Luxembourg before being admitted as beneficiaries of
temporary protection. The seriousness of the persecution to be expected
must be considered in relation to the nature of the crime of which the
person concerned is suspected. Particularly cruel actions, even if
committed with an allegedly political objective, can be classified as
serious non-political crimes. This applies both to the participants in
the crime and to the instigators of the crime;
(iii) they have been guilty of acts contrary to the purposes and principles of the United Nations;
(b) there are reasonable grounds for believing that they represent a
danger to national security or, having been convicted by a final
judgement of a particularly serious crime, that they constitute a threat
to the Luxembourg community.
(2) The grounds for exclusion referred to in paragraph (1) are based
exclusively on the individual conduct of the person concerned. Exclusion
decisions shall respect the principle of proportionality.
Article 72.
The Minister shall issue a specific certificate to the beneficiary of
the temporary protection regime. This certificate allows the holder to
remain on Luxembourg territory, but does not confer a right to residence
in accordance with the legislation on the entry and residence of
foreigners.
The certificate specifies its period of validity, which will only be
extended if it has been endorsed by the municipal administration of the
place of actual residence of the beneficiary of temporary protection. It
is issued until the temporary protection regime has ended.
The beneficiary of temporary protection is obliged to make a
declaration of arrival to the municipality in which he/she establishes
his/her habitual residence. Any change of residence within the
municipality or the transfer of the usual residence to another
municipality must be declared to the municipality of the new residence.
Art. 73.
Beneficiaries of temporary protection shall receive a document in a
language that they can understand, in which the provisions relating to
temporary protection that apply to them are clearly set out.
Art. 74.
If a person enjoying temporary protection in Luxembourg stays
illegally, during the period of temporary protection, on the territory
of another Member State of the European Union, he or she will be
readmitted to the territory of Luxembourg at the request of the Member
State concerned.
Art. 75.
(1) The beneficiary of temporary protection may apply for family
reunification in favour of one or more members of his or her family if
the family was already constituted in the State of origin and has been
separated due to circumstances surrounding the mass influx.
(2)The following shall be regarded as family members within the meaning of this Article
(a) the sponsor’s spouse
(b) the unmarried minor children of the applicant or his or her spouse, whether born in lawful wedlock or adopted
(c) other close relatives who were living in the family unit at the
time of the events leading to the mass influx and who were wholly or
mainly dependent on the sponsor at that time.
(3) The Minister shall grant family reunification to separated family
members who are granted temporary protection in one or more other
Member States of the European Union and who he or she is satisfied fit
the description in subsection (2)(a) and (b), in agreement with the
other Member State(s) concerned, taking into account the wishes of the
family members.
(4) The Minister may grant family reunification to separated family
members who are granted temporary protection in one or more other Member
States of the European Union and who he or she is satisfied meet the
description in subsection (2)(c), in agreement with the other Member
State(s) concerned, taking into account, on a case-by-case basis, the
extreme difficulties they would face if reunification did not take
place.
(5) The Secretary of State shall grant family reunification to
separated family members who are not yet present in the territory of a
Member State, who are in need of protection and whom the Secretary of
State is satisfied fit the description in subsection (2)(a) and (b).
(6) The Minister may grant family reunification to separated family
members who are not yet present in the territory of a Member State, who
are in need of protection and whom the Minister is satisfied fall within
the description in subsection (2)(c), taking into account, on a
case-by-case basis, the extreme hardship they would face if
reunification did not take place.
(7)The Minister shall have regard to the best interests of the child in making the decision.
(8)The Minister shall issue to the family members who have benefited
from a reunification measure the certificate referred to in section 72.
(9)Where persons are granted the benefit of a temporary protection
regime in another Member State, whether on a personal basis or for
family reunification, they shall automatically lose the benefit of the
temporary protection regime in Luxembourg and their certificate referred
to in Article 72 shall lapse.
(10)The Minister shall provide, at the request of another Member
State, the information and documents relating to a beneficiary of
temporary protection deemed necessary to process a case under this
Article.
Section 76.
The representation and placement of unaccompanied minors enjoying
temporary protection shall be provided in accordance with the provisions
of Article 63.
Art. 77.
(1) Beneficiaries of temporary protection may at any time apply for international protection.
(2) The benefit of temporary protection cannot be combined with the
status of applicant for international protection during the examination
of this application.
(3)If, after the examination of the application for international
protection, such protection is not granted to the beneficiary of
temporary protection, the benefit of the temporary protection shall
remain with the beneficiary for the remaining duration of the
protection.
(4) The examination of applications for international protection,
which have not been processed before the expiry of the temporary
protection period, shall be completed after the expiry of this period.
Art. 78.
The criteria and mechanisms for determining the EU Member State
responsible for examining an asylum application shall apply. In
particular, the Member State responsible for examining an asylum
application lodged by a person enjoying temporary protection shall be
the State which has accepted the transfer of the said person to its
territory.
Art. 79.
(1) Persons enjoying temporary protection may at any time renounce
this protection with a view to voluntary return to their country of
origin. As long as the temporary protection regime has not ended, the
Minister shall, taking into account the situation in the country of
origin, give favourable consideration to applications for return to
Luxembourg submitted by persons who have benefited from temporary
protection and who have voluntarily returned to their country of origin.
(2)Persons whose temporary protection has ended will be invited by
the Minister to return voluntarily to their country of origin.
(3)The Minister shall ensure that persons referred to in subsections
(1) and (2) make an informed decision to return to their country of
origin.
(4) A programme for voluntary return to the country of origin may be
set up, if necessary in cooperation with the relevant international
organisations.
(5) Persons who have not returned voluntarily to their country of
origin after a period of time specified by the Minister shall be removed
from the territory in accordance with the legislation on the entry and
stay of foreigners.
(6) Forced return shall be carried out with respect for human
dignity. The Minister shall consider compelling humanitarian reasons
that may make return impossible or unreasonable in specific cases.
(7)The Minister shall take the necessary measures concerning the
conditions of stay of persons who have been granted temporary protection
and who, due to their state of health, cannot reasonably be expected to
travel. As long as this situation persists, these persons shall not be
removed.
The Minister may authorise families whose minor children are studying
in the country to benefit from residence conditions that allow the
children concerned to complete the current school term.
Chapter 6. – Amending and repealing provisions
Art. 80.
Article 37-1, paragraph (1), subparagraph 4, first sentence of the
amended Act of 10 August 1991 on the legal profession shall be amended
as follows”
The benefit of legal aid may also be granted to any other foreign
national whose resources are insufficient, for procedures relating to
access to the territory, residence, establishment and removal of
foreigners and for procedures relating to applications for international
protection within the limits of Article 17 of the Act of 18 December
2015 on international protection and temporary protection.”
Art. 81.
The amended Act of 29 August 2008 on the free movement of persons and immigration is amended as follows
1° Article 100 is supplemented by a paragraph (3) reading as follows:”
(3)In accordance with Regulation (EU) No 603/2013 of the European
Parliament and of the Council of 26 June 2013 concerning the
establishment of Eurodac for the comparison of fingerprints for the
effective application of Regulation (EU) No 604/2013 establishing the
criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of
the Member States by a third-country national or a stateless person and
concerning requests for comparison with Eurodac data by Member States’
law enforcement authorities and Europol for law enforcement purposes,
and amending Regulation (EU) No 1077/2011 establishing a European Agency
for the operational management of large-scale IT systems in the area of
freedom, security and justice, the criminal investigation department
may take fingerprints of an illegally staying alien of at least 14 years
of age in order to determine whether that person has previously lodged
an application for international protection in another Member State and
which Member State is responsible for examining the application.”
2° Article 120(1), first sentence, is amended as follows:
“Article 120.
(1)In order to prepare for the execution of a removal order pursuant
to Articles 111, 116 to 118 or a request for transit by air pursuant to
Article 127, or when the detention in the waiting area exceeds the
forty-eight hour period provided for in Article 119, the foreign
national may, by decision of the Minister, be placed in detention in a
closed structure, unless other less coercive measures as provided for in
Article 125(1) can be effectively applied.”
3° Article 125, paragraph (1), is amended as follows:
” Article 125.
(1) In the cases provided for in Section 120, the Minister may also
decide to apply another, less coercive measure to a foreigner for whom
the enforcement of the obligation to leave the country, while remaining a
reasonable prospect, is postponed only for technical reasons and who
presents effective guarantees of representation to prevent the risk of
absconding as provided for in Section 111(3).
Less coercive measures shall mean
(a) the obligation for the alien to report regularly, at intervals to
be determined by the Minister, to the services of the latter or another
authority designated by him, after handing over the original passport
and any document proving his identity in exchange for a receipt valid as
proof of identity;
(b) house arrest for a maximum of six months in the places determined
by the Minister; the house arrest may be accompanied, if necessary, by
an electronic surveillance measure which entails a ban on the foreigner
leaving the area determined by the Minister. The execution of the
measure is monitored by means of a process that allows the presence or
absence of the foreigner within the said perimeter to be detected at a
distance. The implementation of this process may lead to the imposition
on the foreigner of a device incorporating a transmitter for the entire
duration of his or her placement under electronic surveillance. The
process used is approved for this purpose by the Minister. Its
implementation must guarantee respect for the dignity, integrity and
privacy of the person.
The implementation of the technical device allowing remote monitoring
and the remote monitoring itself may be entrusted to a private person;
- c) the obligation for the foreigner to deposit a financial guarantee
of five thousand euros to be transferred or paid either by himself or
by a third party to the Caisse de consignation, in accordance with the
relevant provisions of the Act of 29 April 1999 on deposits with the
State. This sum is acquired by the State in the event of the escape or
removal by force of the person in whose favour the deposit was made. The
guarantee is returned by a written decision of the Minister ordering
the Caisse de Consignation to do so in the event of voluntary return.
Decisions ordering less coercive measures shall be taken and notified
in the manner provided for in Articles 109 and 110. Article 123 shall
apply. The measures provided for may be applied jointly. In the event of
failure to comply with the obligations imposed by the Minister or in
the event of a risk of absconding, the measure shall be revoked and
detention ordered.”
- In Article 125a, the last sentence of paragraph (1) is replaced by the following:
“The decision to postpone removal may be accompanied by other less coercive measures as provided for in Article 125(1)”
5° Following Article 142, a Section 3 entitled “Section 3 –
Unauthorised crossing of external borders” is inserted containing a new
Article 143, which reads as follows:
“Article 143.
The crossing of the external borders of the European Union in breach
of Article 4 of Regulation (EC) No 562/2006 of the European Parliament
and of the Council of 15 March 2006 establishing a Community Code on the
rules governing the movement of persons across borders (Schengen
Borders Code) shall be punishable by a fine of EUR 1 500. The fine is
imposed by the Minister. The amount shall be paid to the Treasury. “
6° Article 89 is amended as follows:
“Article 89.
(1) Provided that his presence is not likely to constitute a danger
to public order, public security or public health, and provided that he
has not used false or misleading information relating to his identity,
has resided in the territory for at least four years prior to the
submission of the application, shows a genuine desire to integrate and
has not evaded a removal order, a residence permit shall be granted by
the Minister to a third-country national
- if they exercise parental authority over a minor child who lives
with them in their household and has been continuously attending school
in the Grand Duchy of Luxembourg for at least four years and if they can
prove that they can support themselves and their family members; or
- if they have been continuously and successfully educated for at
least four years in an educational establishment in the Grand Duchy of
Luxembourg and submit their application before the age of 21, proving
that they have sufficient resources to meet their needs.
(2) Persons authorised to reside under paragraph (1) shall be issued
with a residence permit for employed persons if they fulfil the
conditions of Article 42(1)(3) and (4) and the residence permit provided
for in Article 79 if they are pursuing studies or vocational training.”
Art. 82.
Article 6 of the Act of 28 May 2009 on the creation and organisation of the Detention Centre shall read as follows:
“Art. 6.
(1) The Centre is divided into several units, one of which has
increased security and surveillance measures specifically reserved for
detainees with risky behaviour. As a rule, detained applicants for
international protection are separated from other third-country
nationals who have not applied for international protection.
(2) Detainees of the opposite sex shall be separated, unless they are family members and all persons concerned consent.
(3) Persons or families accompanied by minors placed at the Centre
for removal shall be kept in a separate unit reserved for them. The
duration of their placement shall not exceed 72 hours.”
Art. 83.
The amended Act of 5 May 2006 on the right of asylum and complementary forms of protection is repealed.
Art. 84.
Reference to this Act may be made in abbreviated form using the
following title: “Act of 18 December 2015 on international protection
and temporary
protection”.