Steve Peers
Among the large number of new initiatives taken by the EU Commission regarding immigration and asylum
last week, three of them are proposals for binding measures: a second temporary
measure relocating asylum-seekers; a permanent system of relocation
for asylum-seekers; and a Regulation setting out a common list of ‘safe
countries of origin’ – which would consist of the Western Balkans countries and
Turkey. I will be commenting on the relocation proposals in future, but for now
I want to examine the ‘safe country of origin’ rules.
It should be noted that the UK,
Ireland and Denmark have an opt-out from all of these measures, and the
European Parliament (EP) is only consulted on the temporary relocation
proposal. However, the EP has its usual joint decision-making role on the
proposals for a permanent relocation system, and for the ‘safe country of
origin’ list.
Background: the ‘safe country of origin’ idea
Two central misconceptions about
the ‘safe country of origin’ concept must be dispelled at the outset. First of
all, designating a country as a ‘safe country of origin’ doesn’t mean that all asylum applications from that country’s citizens
are automatically refused. Rather it creates a presumption of safety – but that presumption is rebuttable. It will likely be harder to rebut that
assumption, since such applications are usually fast-tracked (more on the
details below). But it is not absolutely impossible.
Secondly, the ‘safe country of
origin’ concept is different from a
‘safe third country’ concept. A ‘safe country of origin’ is a country where
its own citizens are generally not
persecuted, whereas a ‘safe third country’ is a country where an asylum-seeker
who came from a different country
should (in the view of the country applying that rule) have applied for asylum instead.
The two rules have different
consequences: the ‘safe country of origin’ rule goes to the heart of the
definition of refugee, because it concerns the treatment of the asylum-seeker
in the country of origin. But the ‘safe third country’ rule doesn’t address the
question of whether the asylum-seeker was safe in the country of origin: it
simply asserts that the asylum seeker should have applied for asylum somewhere else. It’s for that other
State to decide whether or not the asylum-seeker has sufficient grounds to be
considered a refugee, or to get another form of protection. For that reason, EU
asylum law classifies the ‘safe third country’ rule as a rule determining the
admissibility of an asylum
application, not its merits.
Are the two groups of countries
the same? Not necessarily. It may sound odd to say that a country can be ‘safe’
in one context, but not ‘safe’ in another. But let’s put it another way: can we
imagine that a State might treat its own citizens reasonably well, but treat
asylum-seekers badly? I’ll return below to the question of whether some of the
key Western Balkans states can in fact be considered ‘safe third countries’ as
well as ‘safe countries of origin’.
Even before EU asylum law was
first adopted, some countries had their own national version of the ‘safe
country of origin’ concept. The first-phase EU asylum procedures Directive,
adopted in 2005, put in place a minimum degree of harmonization for the
concept. It specified (in an Annex) that these were countries where there was:
“generally and consistently no
persecution as defined in Article 9 of Directive 2004/83/EC [the first-phase qualification Directive, defining refugee and subsidiary protection status], no torture
or inhuman or degrading treatment or punishment and no threat by reason of
indiscriminate violence in situations of international or internal armed
conflict.
In making this assessment,
account shall be taken, inter alia, of the extent to which protection is
provided against persecution or mistreatment by: (a) the relevant laws and
regulations of the country and the manner in which they are applied; (b)
observance of the rights and freedoms laid down in the European Convention for
the Protection of Human Rights and Fundamental Freedoms and/or the
International Covenant for Civil and Political Rights and/or the Convention
against Torture, in particular the rights from which derogation cannot be made
under Article 15(2) of the said European Convention; (c) respect of the
non-refoulement principle according to the Geneva Convention; (d) provision for
a system of effective remedies against violations of these rights and
freedoms.”
The Directive also allowed Member
States to designate part of a country
as safe, or to maintain pre-existing national rules which had a lower standard.
It also specified that to apply a ‘safe country of origin’ rule, Member States
had to ‘have regard to the legal situation, the application of the law and the
general political circumstances in the third country concerned’. Their
‘assessment of whether a country is a safe country of origin’ had to ‘be based
on a range of sources of information, including in particular information from
other Member States, the UNHCR, the Council of Europe and other relevant
international organisations’.
As noted above, the list could
only create a presumption of safety. More precisely, the Directive stated that
the presumption could only apply if the asylum-seeker ‘has not submitted any
serious grounds for considering the country not to be a safe country of origin
in his/her particular circumstances and in terms of his/her qualification as a
refugee in accordance with Directive 2004/83/EC’. Member States were also
obliged to ‘lay down in national legislation further rules and modalities for
the application of the safe country of origin concept’.
The Directive allowed (but did
not require) ‘safe country of origin’ applications to be fast-tracked. In that
case, while all the basic procedural rights still applied in principle, Member
States had an option to skip a personal interview, and there were deadlines for
decision-making and appeals in national law which made it much harder for
applicants to make their case. It was more likely that appeals would not have
suspensive effect (allowing the asylum-seeker to stay on the territory during
the appeal) in such cases.
At the last minute while
negotiating this Directive, a group of larger Member States decided it would be
a good idea to have a common list of ‘safe countries of origin’ – over ten
years ahead of the Commission’s recent proposal. But they then squabbled
for 18 months over which States should be on this common list (EU asylum law
decision-making then had to be unanimous). They eventually gave up agreeing the
list straight away, but left a clause in the Directive allowing for the
possibility of adopting a common list in future. That clause was in turn challenged
successfully by the EP before the CJEU; the Court struck down the clause on the
grounds that any such common list could only be adopted by means of a
legislative or ‘comitology’ procedure, not the ad hoc procedure that the
Council had made up.
When it came to the second-phase
procedures Directive, which was adopted in 2013 and has applied to all
asylum applications made since July 20 2015, there was no interest
in returning to the concept of a common list. The basic criteria for
designating a ‘safe country of origin’ remain the same, but the possibilities
of keeping pre-existing lower standards, or of designating part of a country as
‘safe’, were dropped. (However, it’s still possible, under the qualification
Directive, to argue that an asylum-seeker could have fled to safety within his
or her own country). The safeguards for individuals to rebut the presumption
were retained. It’s still possible to fast-track a ‘safe country of origin’
application, but the option to skip the personal interview was dropped.
Finally, although the second-phase Directive now allows applicants in principle
to stay pending the outcome of an appeal, it’s also possible for Member States
to derogate from this rule in ‘safe country of origin’ cases (as well as some
others), as long as the applicant has the right to challenge his or her removal
before a court first.
The Commission proposal
The Commission suggests that all
Western Balkans states and Turkey be listed as ‘safe countries of origin’. This
would apply nearly immediately (twenty days after publication of the
Regulation). Member States would still have the option to list other countries
as ‘safe countries of origin’ pursuant to the procedures Directive, which would
only be amended in order to insert cross-references to the new Regulation. The
individual safeguard (the possibility of rebutting the presumption) would
remain. Member States would not explicitly be required to fast-track
applications from these countries as a consequence, but it’s likely that most
or all of them would.
The Commission has made this
proposal because there has been a sharp increase in the number of
asylum-seekers from the Western Balkans in the last couple of years, and there
has been a high rate of refusals of applications from these countries. Further
evidence of concern about this issue is a report from the European Asylum
Support Office (EASO) on applications from the Western Balkans, recently
updated here, and the conclusions of the JHA Council in July,
which urged all Member States to consider listing Western Balkans states as
‘safe countries of origin’. However, it’s obvious that this concern did not
extend to applications from Turkish nationals; the idea of including Turkey on
the list of ‘safe countries of origin’ emanates from the Commission.
Are these countries actually
‘safe’? That’s the million-dollar question. The Commission answers it in part
by generally assessing the existence of human rights protections in the
national legal order. It also quotes statistics about the success rate of
asylum applications, and the number of times that the country concerned has
been condemned by the European Court of Human Rights in 2014 for breaches of
human rights. For comparison’s sake, here are those statistics in one place:
Albania: 4/150 ECHR applications;
7.8% asylum success rate, or 1040 successful applications
Bosnia: 5/1196 ECHR applications;
4.6% asylum success rate, or 330 successful applications
FYROM (Macedonia): 6/502 ECHR
applications; 0.9% asylum success rate, or 70 successful applications
Kosovo: not party to ECHR; 6.3%
asylum success rate, or 830 successful applications
Montenegro: 1/447 ECHR
applications; 3.0% asylum success rate, or 40 successful applications
Serbia: 16/11490 ECHR
applications; 1.8% asylum success rate, or 400 successful applications
Turkey: 94/2899 ECHR
applications; 23.1% asylum success rate, or 310 successful applications
It’s obvious at first sight that
one of these States is not like the others. Turkey has over five times the
number of ECHR breaches as the next-highest State (Serbia). This can arguably
be accounted for by Turkey’s bigger size – although in fact there are more ECHR
applications against Serbia, so the gap in the rate of breaching the ECHR is even bigger in percentage terms. More significantly (because not every breach
of the ECHR is an indication of persecution), the rate of successful asylum
claims from Turkish nationals is three times the rate of the next-highest State
(Albania). Moreover, the number of asylum claims from Turkey (just over 1000 in
the whole year) does not indicate a systemic problem.
It follows that Turkey manifestly
does not belong on the common list of countries which all Member States can
consider ‘safe’. In fact, it probably doesn’t belong on any Member State’s
national list either. Indeed, Turkey isn’t
on any national list, according to the recent report on EU asylum policy from
AIDA, a database on asylum policy (see page 78). Leaving Turkey off the list
does not mean that its application for EU membership should be shelved: the EU
should make clear that this process is a long one during which would-be Member
States can improve their human rights records.
As for the other countries on the
proposed list, the Western Balkans States indeed have an overall low rate of
successful applications, as well as a high number of applications (Turkey has
neither). According to the EASO report, only 4% of applications out of nearly
100,000 were successful in 2014. In the context of very high pressure on many
Member States’ asylum systems as a whole, it’s easy to see why the idea of a
common list makes sense in terms of efficiency.
But there is a need to balance
efficiency with humanity: the statistics show that there are still thousands of
applicants from these States who demonstrated a genuine need for protection.
The Commission’s explanatory memorandum notes that in all the States concerned, there was persecution on LGBTI grounds,
as well as persecution in some States against Roma, women or children (among
others). So the best way forward is to strengthen the individual safeguards to
ensure that those with genuine needs for protection don’t have their
application simply ignored. I have suggested some amendments to this effect in
the Annex.
Furthermore, the proposal could
go further in ensuring harmonisation, in two ways. First of all, in light of
the length of procedures referred to in the EASO report, it could introduce
deadlines to decide on applications and appeals from the nationals of the
countries concerned, subject to two procedural safeguards: setting out a minimum time to appeal as well as a
maximum time, and exempting those who have submitted some evidence to rebut the
presumption from any fast-track process.
Secondly, as we say in English,
what’s sauce for the goose is sauce for the gander. Greater harmonisation in
the interest of the efficiency of asylum systems should be balanced with
greater harmonisation to ensure that Member States do not breach the EU’s
minimum standards, and to ensure that the standards themselves do not breach
human rights law. I have therefore suggested amendments in the Annex to that
effect, so that the Commission can overrule Member States which have applied
the concept of ‘safe third country’ or ‘safe country of origin’ to cases where
it is clearly not justified. (It would still be possible for national courts to
overturn such decisions too). Such decisions are also likely to divert asylum
applicants toward Member States other than the one which would be responsible
for their application, distort recognition rates of asylum-seekers, and risk
harm for the persons concerned. In particular, the AIDA report raises questions
about whether Serbia could be considered a ‘safe third country’, and concludes
that ‘international asylum standards are not currently met in FYROM’.
Annex
Proposed amendments to the asylum
procedures Directive
Amend Article 25(6)(a)(i):
“the applicant comes from a
country which satisfies the criteria to be considered a safe country of origin
within the meaning of this Directive, except where Article 36(3) applies”
This exempts genuine claims by unaccompanied minors from the countries
concerned from being fast-tracked (new text underlined).
Amend Article 25(6)(a)(ii):
“the applicant comes from a
country which satisfies the criteria to be considered a safe country of origin
within the meaning of this Directive, except where Article 36(3) applies”
This exempts genuine claims by unaccompanied minors from the countries
concerned from being rejected in a special border procedure (new text
underlined).
Amend Article 31(8)(b):
“the applicant is from a safe
country of origin within the meaning of this Directive, except where Article
36(3) applies”
This exempts genuine claims from the countries concerned from being
fast-tracked in general (new text underlined).
Add a new Article 31(10):
“In the case of an application
made by a national of a country listed in the Annex to Regulation xxx/2015,
they shall decide on the application within three months of the decision to
apply the ‘safe country of origin’ concept, unless the applicant has submitted
evidence that he or she is part of a group that faces persecution or serious
harm pursuant to Article 36(3)”.
This fast-tracks a decision, except for ‘safeguard’ cases.
Add a new Article 36(3):
“Member States shall not make a
decision to apply the ‘safe country of origin’ concept to an application until
they have considered all evidence submitted by the applicant, including any
evidence that the applicant is part of a group that faces persecution or
serious harm according to the sources of information referred to in Article
37(3).”
Article 39 should be repealed
The idea of a ‘super-safe third country’ from which applications are
not considered at all is incompatible with human rights law.
New Article 39:
“If a Member State has listed a
third country as a ‘safe country of origin’ pursuant to Article 37 and Annex I,
or a ‘safe third country’ pursuant to Article 38, but an organisation concerned
with the protection of human rights submits evidence to the Commission that the
designation is not compliant with the relevant criteria, the Commission shall
examine the issue. It may also examine such an issue on its own initiative.
The Commission shall inform the
relevant Member State, and ask it for its observations. Within one month of the
start of the assessment, the Commission shall decide on the compatibility of
the Member State’s decision with the criteria in this Directive. If the
Commission’s view is negative, the Member State shall withdraw the relevant
measure.”
This sets out controls of Member State abuse of the ‘safe’ country
concepts.
Add a new sub-paragraph to
Article 46(4):
“In the case of an application
made by a national of a country listed in the Annex to Regulation xxx/2015,
Member States shall set a time limit of between one week and one month to lodge an appeal. Member States shall decide on the appeal within three months, unless the
applicant has submitted evidence that he or she is part of a group that faces
persecution or serious harm pursuant to Article 36(3)”.
This fast-tracks an appeal, except for ‘safeguard’ cases.
Add the following words to the
end of Article 46(6)(a):
“…or Article 36(3)”.
This ensures a right to stay during an appeal for ‘safeguard’ cases.
Barnard & Peers: chapter 26
Photo credit: internationalliving.com
Bosnia is probably THAT country who is NOT respecting the court desitions MOST (also EU justice court and Human rights court, or what it is called). If somebody doesn´t soon help to Bosnias citizens against their own corrupted politicians in Bosnia- there will very soon be another civil war on Bosnian territory, unfortunatelly... People who have SURVIVED THE WAR and were starving hungry during the war, have now been waiting for 20 years in order to get FOOD/ HEALTH PROTECTION/ HOME/ JOB/ EARNED PENSION/ ETC- and they are not getting it yet. Now, those citizens who have been starved during the Bosnias war because they stayed in Bosnia, now those citizens are getting refusal on asylum from EU countries, it means suffering is continuing for those citizens while EU is lying about "country of safe origin". Citizens of Bosnia are getting very very desperat, all of politicians from all of 3 nations in Bosnia- are corrupted and became VERY RICH (check Izetbegovic and Covic and Dodik hidden money) because they steal the money which is ment to go for citizens.
ReplyDeleteThe most UNFAIR is, those people who have not fled the country during the war, either because they were very poor to buy a ticket or because they were loyal to the soil they were born on or just full of hope for their country- they are even now and yet not getting any protection. While people who HAD MONEY DURING THE WAR- they got protection from the international community through asylum industry, and it is those more rich so called "war refugees" EU is feeling sorry for, even though so called "war refugees" have personally not at all that much war experiance because they left early. Is THAT fair, that people with money who were not even present during the war because they fled early before war ended- are the ones who got asylum protection in EU???
Where is the JUSTICE in this world?
Adult people from Bosnia, who are NOW seeking the asylum protection in EU- should get the same protection as war refugees have got it many years ago. These adult people who have personally experianced the WHOLE WAR because they had no money to flee during the war- they are even more traumatised than those refugees who have got asylum protection in 90íes...
ReplyDeleteAdult refugees from Bosnia who today are seeking the asylum in EU, are ALSO "WAR refugees" because NOBODY can DENY them the EXPERIANCE OF WAR IN HOME COUNTRY. They DO have experiance of war and starvation, either as children or as adults in 90íes...
ReplyDeleteBosnia is a "safe country" ONLY for criminals and corrupted ones as: Radoncic, Izetbegovic, Covic, Dodik...
ReplyDeleteBosnia is NOT safe country for ordinary citizens.