Right to legal counselling and legal assistance and representation
1. Applicants shall have the right to consult, in an effective manner, a legal adviser or other counsellor on matters relating to their applications at all stages of the procedure.
2. Without prejudice to the applicant’s right to choose his or her own legal adviser or other counsellor at his or her own cost, an applicant may request free legal counselling in the administrative procedure provided for in Chapter III, in accordance with Article 16, and free legal assistance and representation in the appeal procedure provided for in Chapter V, in accordance with Article 17.
The applicant shall be informed as soon as possible and at the latest when registering the application in accordance with Article 27 of his or her right to request free legal counselling or free legal assistance and representation.
3. Member States may provide for free legal assistance and representation in the administrative procedure in accordance with national law.
4. Member States may organise the provision of legal counselling and legal assistance and representation in accordance with their national systems.
Free legal counselling in the administrative procedure
1. Member States shall, at the request of the applicant, provide free legal counselling in the administrative procedure provided for in Chapter III.
For the purposes of the first subparagraph, effective access to free legal counselling may be assured by entrusting a person with the provision of legal counselling in the administrative stage of the procedure to several applicants at the same time.
2. For the purposes of the administrative procedure, free legal counselling shall include the provision of:
(a)
guidance on and an explanation of the administrative procedure including information on rights and obligations during that procedure;
(b)
assistance on the lodging of the application and guidance on:
(i)
the different procedures under which the application may be examined and the reasons for the application of those procedures;
(ii)
the rules related to the admissibility of an application;
(iii)
legal issues arising in the course of the procedure, including information on how to challenge a decision rejecting an application in accordance with Articles 67, 68 and 69.
3. Without prejudice to paragraph 1, the provision of free legal counselling in the administrative procedure may be excluded where:
(a)
the application is a first subsequent application considered to have been lodged merely in order to delay or frustrate the enforcement of a return decision which would result in the applicant’s imminent removal from the Member State;
(b)
the application is a second or further subsequent application;
(c)
the applicant is already assisted and represented by a legal adviser.
4. For the purpose of implementing this Article, Member States may request the assistance of the Asylum Agency. In addition, financial support may be provided through Union funds to the Member States, in accordance with the legal acts governing such funds.
Free legal assistance and representation in the appeal procedure
1. In the appeal procedure, Member States shall, at the request of the applicant, ensure that he or she is provided with free legal assistance and representation. Such free legal assistance and representation shall include the preparation of the procedural documents required under national law, the preparation of the appeal and, in the event of a hearing, participation in that hearing before a court or tribunal.
2. The provision of free legal assistance and representation in the appeal procedure may be excluded by the Member States where:
(a)
the applicant, who shall disclose his or her financial situation, is considered to have sufficient resources to afford legal assistance and representation at his or her own cost;
(b)
it is considered that the appeal has no tangible prospect of success or is abusive;
(c)
the appeal or review is at a second level of appeal or higher as provided for under national law, including re-hearings or reviews of appeal;
(d)
the applicant is already assisted or represented by a legal adviser.
3. Where a decision not to grant free legal assistance and representation is taken by an authority which is not a court or tribunal on the grounds that the appeal is considered to have no tangible prospect of success or to be abusive, the applicant shall have the right to an effective remedy before a court or tribunal against that decision. For that purpose, the applicant shall be entitled to request free legal assistance and representation.
Scope of legal counselling and legal assistance and representation
1. A legal adviser who legally represents an applicant under the terms of national law shall be granted access to the information in the applicant’s file on the basis of which a decision is or shall be taken.
2. Access to the information or to the sources in the applicant’s file may be denied in accordance with national law where the disclosure of information or sources would jeopardise national security, the security of the organisations or persons providing the information or the security of the persons to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised or where the information or sources are classified under national law. In those cases, the determining authority shall:
(a)
make access to such information or sources available to the courts or tribunals in the appeal procedure; and
(b)
ensure that the applicant’s right of defence is respected.
As regards point (b) of the first subparagraph, Member States shall grant access to information or sources to a legal adviser who legally represents the applicant and who has undergone a security check, in so far as the information is relevant for examining the application or for taking a decision to withdraw international protection.
3. The applicant’s legal adviser or the person entrusted with providing legal counselling, who counsels, assists or represents an applicant shall have access to closed areas, such as detention facilities and transit zones, for the purpose of counselling, assisting or representing that applicant, in accordance with Directive (EU) 2024/1346.
Conditions for the provision of free legal counselling, assistance and representation
1. Free legal counselling, assistance and representation shall be provided by legal advisers or other counsellors, admitted or permitted under national law to counsel, assist or represent the applicants or by non-governmental organisations accredited under national law to provide legal services or representation to applicants.
2. Member States shall lay down specific procedural rules concerning the arrangements for filing and processing requests for the provision of free legal counselling, assistance and representation in relation to applications for international protection or they shall apply the existing rules for domestic claims of a similar nature, provided that those rules are not more restrictive or do not render access to free legal counselling or free legal assistance and representation impossible or excessively difficult.
3. Member States shall lay down specific rules concerning the exclusion of the provision of free legal counselling, assistance and representation in accordance with Article 16(3) and Article 17(2), respectively.
4. Member States may also impose monetary limits or time limits on the provision of free legal counselling, assistance and representation, provided that such limits are not arbitrary and do not unduly restrict access to free legal counselling, assistance and representation. As regards fees and other costs, the treatment of applicants shall not be less favourable than the treatment generally given to their nationals in matters pertaining to legal assistance.
5. Member States may request from the applicant the total or partial reimbursement of the costs incurred in relation to the provision of legal assistance and representation where the applicant’s financial situation considerably improves in the course of the procedure or where the decision to provide free legal assistance and representation was taken on the basis of false information supplied by the applicant. For that purpose, applicants shall immediately inform the competent authorities of any significant change in their financial situation.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
