High Trust Arrangements in a Low Trust Context: The Rwanda Policy’s impact on the Common Travel Area

 

 

Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via Wikimedia Commons

Introduction

The latest spat between the UK and Ireland over the knock-on consequences of the UK’s Rwanda policy exposes the tangled web of EU law and Common Travel Area (CTA) arrangements which now cover the interactions between both countries’ immigration policies. This post considers these interactions and proposals of the Irish Government to legislate in light of the Irish High Court decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has been a remarkably durable feature of relations between the UK and Ireland for over a century. In the immediate aftermath of a bloody war of independence, both countries recognised the mutual benefits of facilitating people moving across their new borders. And even at the height of the Brexit referendum campaign, pro-Brexit campaigners lined up to downplay any concerns around the land border because the CTA would continue after Brexit. Even if it was not, of itself, capable of ensuring an open border on the island of Ireland, the CTA was generally accepted as providing an important ongoing element of UK-Ireland relations. This always underplayed how difficult it was going to be to make these arrangements work post Brexit.

The CTA arrangement has been operable for so long on the basis that it works on two levels; unrestricted movement can take place between the parts of the CTA because each part enforces broadly comparable external rules of entry. For decades, the two states aligned their immigration policy and enforced a shared list of excluded individuals. After both joined the EEC at the same time, these arrangements were augmented by a range of EU law, but Ireland and the UK continued to jointly operate opt outs to let them maintain distinct elements of immigration policy and to provide more legal entitlements to each other’s citizens than they did to other EU citizens (see here).

Post Brexit, the immediate concern was over the UK’s commitment to the CTA. Once Brexit happened, the common external arrangement would no longer be operative, because EU citizens could continue to move freely into Ireland (whereas they would face new restrictions on moving directly to the UK). They could, however, then use the CTA to move into the UK, thereby circumventing the UK’s new immigration policy.  UK ministers, however, remained confident that they could deal with this issue by immigration enforcement away from the border (by requiring banks, landlords, etc to require individuals provide proof of status before accessing services). They therefore signed up to a new CTA deal with Ireland in 2019.

The latest spat in post-Brexit relations between the UK and Ireland, however, involves the necessary corollary of some of the concerns being raised before Brexit took effect. Once the UK set about tightening its restrictions on immigration, and particularly abandoning safeguards around refugees that it had implemented under EU law, would there be a displacement effect as people turned to Ireland instead to process asylum claims. This led to the claims by Ireland’s Justice Minister, Helen McEntee, that not only was there a sharp rise in asylum applications in Ireland in recent months, that 80% of new applicants were now crossing the land border from Northern Ireland. There has not been any evidence published to support this figure (a fact emphasised by some coalition government ministers from other parties, perhaps more alive to the consequences of ramping up these tensions for the CTA).

Groups like the Irish Refugee Council have pointed out that simply because the number of in-country applications has risen, this does not mean that all of those individuals have crossed the land border (people in the country on a different immigration status can make decisions to apply for asylum on the basis of a change in the circumstances of their home country, for example). But the impression that the UK Government’s Rwanda policy has had a direct knock on impact on Ireland, which needs to be addressed, has become central to ministerial thinking.

The position in Ireland

EU asylum law framework

The problem for Ireland is how to enforce returns to the UK, especially in light of the legislation closing off of routes to claim asylum in the UK. The starting point is that Ireland is bound by aspects of EU asylum law, having exercised the possibility to opt in to parts of it. In particular, Ireland opted into the first phase asylum procedures Directive, adopted in 2005, but not the second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’), both of which contain slightly different rules (optional for Member States) on ‘safe third countries’ – ie countries that asylum seekers could arguably make their applications in instead, other than their countries of origin or the country where they are applying now.

The ‘safe third country’ rules in the Directives refer to non-EU countries. If the argument is that the asylum seeker should have applied in an EU Member State or a Schengen associate (Norway, Iceland, Switzerland, Liechtenstein), a different set of rules (the ‘Dublin rules’) apply instead, which determine in detail which Member State is considered responsible for the application, how transfers of asylum-seekers to give effect to the responsibility rules work, and what rights asylum-seekers have to challenge the potential transfers. Ireland has opted in to the current version of those rules – the 2013 version of the Dublin Regulation, known as ‘Dublin III’ – which states that rather than apply those rules to transfer an asylum seeker to another Member State which is responsible, a Member State can choose (as an option) to send an asylum seeker to a non-EU country instead, in accordance with the ‘safe third country’ rules in the 2013 Directive. (One way for Ireland to get around difficulties sending asylum seekers back to the UK would be to revert to the Dublin rules and try to send more of them back to other Member States under those criteria; but that will not always work, for instance because there may not be enough evidence to apply those rules, or the responsibility for the Member State which they first entered illegally to deal with the asylum-seeker may have timed out).

Ireland intends to opt in to the 2024 versions of the Dublin Regulation and the procedures law – which will now become a Regulation – after they are formally adopted, which is scheduled for May 14 (on the details of the new Regulations, see here and here). The procedures Regulation will change the ‘safe third country’ rules again. However, this will not have an immediate impact, since these new Regulations will not apply until mid-2026. So the focus here is the current law.

According to the recent Irish High Court judgment, Ireland had ‘safe third country’ rules at several points previously, but reintroduced the possibility in 2020, when an omnibus law on Brexit amended the International Protection Act 2015 to provide again for ‘safe third countries’ to be designated. Obviously this legal change had the UK in mind – given that the Dublin rules ceased to apply to the UK at the end of 2020, when the Brexit transition period expired. Indeed, the Irish government promptly used these new powers to designate the UK as a ‘safe third country’.

EU ‘safe third country’ rules

The 2005 ‘safe third country’ rules, which apply to Ireland as such, state that a Member State can apply the concept ‘only’ if ‘the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:’

a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

b) the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected;

c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The Directive goes on to state that ‘[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:’

a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant’, which must ‘include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’;

c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

Next, Member States must:

a) inform the applicant accordingly; and

b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

Finally, if the non-EU country concerned ‘does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in’ the Directive.

The 2013 Directive is similar, except for adding ‘there is no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status] to the list of principles that must apply in the non-EU country, and providing that the applicant must be permitted to argue that the non-EU country ‘is not safe in his or her particular circumstances’ and ‘to challenge the existence of a connection between him or her and the third country in accordance with’ the Directive.

The impact of designating a country as a ‘safe third country’ is that the application is inadmissible on the merits – on the assumption that it will be considered on the merits in the other country instead, because it is presumed that the asylum-seeker will apply for asylum in that country after being expelled there. The case will be fast-tracked, and it may be harder to stay on the territory in the event of an appeal against the decision than in some other cases.

The Court of Justice has ruled several times on the interpretation of the ‘safe third country’ rules in the 2013 Directive: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries, and that Hungary had not fully provided for the guarantees related to the ‘safe third country’ concept’ required by the Directive in its national law.

The High Court judgment

The Irish High Court judgment ruled that the Irish government’s designation of the UK as a ‘safe third country’ was unlawful; but it did not rule on whether or not the UK was actually safe. This apparent paradox stems from the nature of administrative law, which often concerns itself with whether the public administration followed the correct procedure, rather than the merits of the decision – in part because courts are often more willing to review the procedure which a government applied to take a decision than the merits of that decision, which are seen as to some extent a matter of political discretion. So it’s possible that after a court quashes a government measure as unlawful on procedural grounds, the government could back and lawfully adopt the same decision again, provided that it now does so following the correct procedure. (And to knock on the head another common misconception: a minister taking an unlawful decision does not mean that the minister has committed a crime)

So why was the designation of the UK as a ‘safe third country’ unlawful? Mainly because the Irish law from 2020 providing the powers to designate such countries was not fully consistent with EU law, particularly because it did not provide the guarantees required in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (As noted above, the CJEU came to a very similar conclusion regarding Hungary’s lack of full application of those guarantees, but oddly the High Court judgment makes no reference to this case law). Also, there had not been a continual review of the position in the UK.

However, this did not mean – despite a popular misconception on this point – that the High Court judgment ruled that the UK was unsafe because of the UK’s Rwanda policy. In fact the judgment is at pains to point out that it was not reaching any conclusion on the Rwanda policy one way or another.

The Irish government’s response

The Irish government has announced plans to adopt legislation to designate the UK as a ‘safe third country’. Depending on the content, this may be sufficient to address the specific reasons why the High Court found that the previous designation was unlawful. But this is not the end of the story, because, as we have seen, the High Court did not get into the merits of whether the UK was ‘safe’ or not, particularly in light of the Rwanda policy, which has moreover developed since. Any fresh legislation could be challenged on those grounds. It’s even possible, if fresh challenges are brought, that an Irish court may want to send questions to the CJEU on this or other aspects of interpretation of the ‘safe third country’ rule. (Incidentally, as the Irish High Court did not rule on the merits of whether or not the UK was 'safe', the Irish government - unlike the UK recently - is not legislating to overturn a court judgment on whether another country is 'safe').

Furthermore, there are other elements to the EU rule, not discussed much in the High Court ruling. As noted above, there must be a ‘connection’ between the asylum seeker and the non-EU country (a point notably missing from the Rwanda policy, on the UK side), and the case law says that mere transit is not enough to create a connection. The two asylum-seekers concerned by the previous High Court judgment had been deemed to have spent enough time in the UK to have a ‘connection’, but that will arguably not be the case for all asylum-seekers who might make their way via the UK to Ireland.

Another point – also scrapped on the UK side in the Rwanda policy – is that the asylum-seeker must be readmitted by the non-EU country. The EU rules thus aim to avoid the very limbo that thousands of asylum-seekers are subject to in the UK, where their cases are inadmissible but with no country willing or obliged to decide their applications on the merits. While the High Court judgment refers to UK willingness to readmit asylum seekers previously (see para 44), the UK has now announced that it is not willing to do so, perhaps because it views the CTA arrangements as not binding. This obviously creates a further issue on the EU side (on the readmission/’safe third country’ nexus in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

As well as the Irish dimension to this argument, there is also a Northern Irish aspect. Notwithstanding the current wrangling, many question marks hang over the UK’s policy under the Illegal Migration Act 2023, as extended by the Rwanda Act 2024, and particularly over how they apply in the context of Northern Ireland. As part of the EU-UK Withdrawal Agreement the UK committed to ensuring no diminution of rights and equality protections operative in Northern Ireland law as a result of EU law because of Brexit (Windsor Framework, Article 2). It did so to avoid any claim that Brexit jeopardised the rights provisions of the Belfast/Good Friday Agreement 1998, some of which had come to rely upon EU law in practice. This concession headed off a lightning-rod argument for opposition to Brexit in the Northern Ireland context, and enabled the deal to proceed.

But now that these arrangements are in place, and operative, it means that Northern Ireland has a separate (and higher) floor of rights protections than the remainder of the UK. It is arguable that many aspects of EU law applicable to asylum seekers, and providing protections for them (including the Trafficking Directive), continue in full effect in Northern Ireland post Brexit. As pointed out in previous posts (here and here) the courts have the ability to disapply statutes insofar as they conflict with the Windsor Framework arrangements. In other words, this casts doubt on whether the UK Government’s flagship policy on asylum seekers can apply equally in all parts of the UK. The issue has already been argued before the Northern Ireland High Court with regard to the Illegal Migration Act (judgment is pending). Even if the Rwanda Act closes off many legal challenges, asylum seekers within Northern Ireland are therefore likely to try to use the Windsor Framework to challenge any deportations under these measures for the foreseeable future. 

Conclusions

Amid the tangle post-Brexit arrangements, both countries appear to be talking at cross purposes. For the UK Government, Brexit removed its obligations to comply with the Dublin III regulations and the arrangements thereunder for return of asylum seekers to other EU countries (and it cites the restrictions on it being able to enforce the return of individuals to France post Brexit as evidence of this). For the Irish Government, the Dublin III process might have been used when both countries were EU Member States, but the underlying CTA relationship sprang back into full effect (although conditioned by its own EU obligations) once the overlaying EU law was removed post Brexit. In reality, so much of the CTA relies on shared understandings and reciprocal nods, that there is considerable scope for misinterpretation. Indeed, two countries which were engaging with each other in the close collaborative relationship that the CTA requires might well have been expected to publicly make the appropriate arrangements in advance of Brexit taking effect (but that, alas, is not where UK-Ireland relations are at – see Professor Bernard Ryan here).

Elections loom in both Ireland and the UK, and many politicians in both countries have decided that there are votes to be won in looking tough on immigration. When refugees and asylum-seekers are at issue, however, it is difficult to ignore the fact that both countries process a relatively low number of asylum claims on a European level. But both countries are at loggerheads over policies which increasingly put the CTA arrangements in jeopardy and which seek to ignore the fact that conflict and persecution necessarily create more refugees. Both, it has to be concluded, would like this to be someone else’s problem.

The new EU asylum laws, part 8: the ‘crisis’ Regulation – and conclusions

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Sam Zidovetski, via Wikimedia Commons

(Last amended June 18 2024: amendments marked by asterisks)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws comprise a ‘package’ of new or revised EU asylum laws, which was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*

I have looked at all the new legislation on this blog in a series of blog posts, which are a preview of a forthcoming article.* This is the eighth and final post in the series, on the Regulation on derogations in the event of a crisis, which derogates from the asylum procedures Regulation and the revised Dublin Regulation. It also includes discussion of the ‘crisis’ rules in the Regulation on a borders return procedure, and conclusions on the asylum package as a whole. 

The previous blog posts in the series concerned the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the revised Dublin Regulation/AMMR (part 6), and the procedures Regulation (part 7).*

The new package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The crisis Regulation

The existence of a free-standing Regulation on exceptions in the event of a crisis situation is new, although there is also a Directive on temporary protection in the event of a mass influx (invoked after the Russian invasion of Ukraine) and some derogations to address large numbers of asylum applications in other EU asylum laws. There were also emergency laws on relocation of asylum seekers, to deal with the perceived refugee crisis in 2015, but they expired in 2017.

Ireland has opted out of the crisis Regulation, and the Regulation does not apply to Denmark, although Denmark (and non-EU Schengen associates) will be covered by the crisis rules in the border returns procedure Regulation.

The legislative process leading to the 2024 Regulation began with a proposal in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact.

Like most of the rest of the new package, the Regulation will not apply for two years - on 1 July 2026.* The rationale of the Regulation is that ‘[t]he EU and its Member States may be confronted with migratory challenges that can vary greatly, in particular with regard to the scale and the composition of the arrivals. It is therefore essential that the Union be equipped with a variety of tools to respond to all types of situations’, which are ‘complementary’ to the provisions in the 2024 Dublin Regulation and the temporary protection Directive, ‘which may be used at the same time’. (The original proposal would have repealed the temporary protection Directive)

General Provisions and Scope

Among other things, as noted already, the crisis Regulation provides for derogations from the Dublin Regulation and the Procedures Regulation. However, it ‘shall not affect the fundamental principles and guarantees’ in those Regulations, and the ‘[t]emporary measures’ it provides for are subject to necessity and proportionality, must ‘be appropriate to achieving their stated objectives’, ensure the rights of asylum-seekers and those with international protection, ‘and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis.’ It ‘shall be applied only to the extent strictly required by the exigencies of the situation, in a temporary and limited manner and only in exceptional circumstances’

The preamble emphasises that besides the derogations, other EU asylum law applies fully. Furthermore, the exceptions in the Regulation cannot be invoked by Member States unilaterally: Member States can apply the provisions of the Regulation ‘only upon request and to the extent provided for in’ the Council Decision triggering it.  

As for its scope, the Regulation applies to two types of ‘crisis’ and to ‘force majeure’, as further defined. The first type of crisis is a ‘mass arrival’:

an exceptional situation of mass arrivals of third-country nationals or stateless persons in a Member State by land, air or sea, including of persons that have been disembarked following search and rescue operations, of such a scale and nature, taking into account, inter alia, the population, GDP and geographical specificities of the Member State, including the size of the territory, that it renders the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional, including as a result of a situation at local or regional level, such that there could be serious consequences for the functioning the Common European Asylum System

The second type of crisis is an ‘instrumentalisation’ crisis, ie Belarus shoving people across the border:

where a third country or hostile non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security.

The preamble qualifies this definition: non-state actors ‘involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’; and ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

In this context, Member States can ask to trigger the Regulation ‘in particular where there is an unexpected significant increase in the caseload of applications for international protection at the external borders’. And they can ‘only’ use the derogations in any Council decision triggering the Regulation to people ‘who are subject to instrumentalisation and who are either apprehended or found in the proximity of the external border’ – as distinct from internal borders – ‘in connection with an unauthorised crossing by land, sea or air, or who are disembarked following search and rescue operations or who have presented themselves at border crossing points’. But the preamble to the Regulation also states that in this context, ‘effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter and the [Refugee] Convention.’

Finally, ‘force majeure’ means ‘abnormal and unforeseeable circumstances outside a Member State’s control, the consequences of which could not have been avoided notwithstanding the exercise of all due care, which prevent that Member State from complying with obligations under’ the procedures and Dublin Regulations. The preamble gives the examples of pandemics and natural disasters.

Process

The process of triggering the Regulation starts with a request from a Member State, which believes it is in a crisis or force majeure situation and so sends a request to the Commission. Following this request, the Commission has two weeks to assess it and adopt a decision determining whether that Member State is indeed in a crisis or force majeure situation. Next, at the same time as adopting that decision, the Commission must, ‘where appropriate’, propose a further Council implementing decision to benefit that Member State; the Council must also act within two weeks.

The Council decision must set out some combination of derogations from EU asylum law, a ‘solidarity response plan’, or an identification of which non-EU citizens are being ‘instrumentalised’.  Also, the Commission can adopt a recommendation urging that Member State to apply an expedited procedure for applications likely to be well-founded, in which case the Member State must decide on those applications within four weeks, derogating from the usual time limits in the procedures Regulation (see part 7).

The Council decision will not apply indefinitely. It can apply only for a year in total: initially three months, with a three month extension confirmed by the Commission; then another Council decision amending it or prolonging it for three months, again with a possible three month extension if the Commission agrees. It is not clear how soon afterwards the Member State could ‘go back to the well’ to ask for another Council decision. The Commission and Council must monitor whether the situation of crisis or force majeure continues to exist, and the Commission ‘shall pay particular attention to the compliance with fundamental rights and humanitarian standards’. The EU Solidarity Coordinator, whose post was set up by the 2024 Dublin Regulation, also plays a role.

Solidarity Measures and Derogations

A Member State facing a crisis situation can request any of the various solidarity measures defined in the 2024 Dublin Regulation (see part 6): relocation (including of recent beneficiaries of international protection), financial contributions (including to non-EU states), and alternative measures. If the relocation pledges fall short, there are a number of rules on offsets (ie other Member States taking responsibility for applicants that they would otherwise have transferred to the Member State in crisis).

As for derogations from other EU asylum laws, the first potential derogation is from the procedures Regulation (see part 7), in any crisis or force majeure situation: Member States can have up to four weeks to register asylum applications, instead of five days. Next, there are a series of possible derogations from the borders procedure in the procedures Regulation: an extra six weeks to apply the procedure (on top of the usual 12 week maximum); an exemption from the obligation to apply the procedure to applicants from countries with low recognition rates; a change to the threshold of the ‘low recognition rate’ rule (either a reduction or an increase to the threshold); or deciding on the merits of all ‘instrumentalisation’ cases in the border procedure, subject to detailed safeguards for minors and families and those with special procedural or reception needs, and protection of ‘the basic principles of the right to asylum and the respect of the principle of non-refoulement as well as the guarantees’ in Chapters I and II of the procedures Regulation.

Third, in the event of force majeure or ‘mass arrival’ crises, the beneficiary Member State can extend a number of deadlines in the Dublin rules, accompanied by a delay in Dublin transfers to that Member State. Finally, in the case of ‘mass arrival’ crises, a Member State may be relieved from certain obligations to take back asylum applicants under the Dublin rules.

Border Return Procedure Regulation

The Regulation on a border return procedure provides that in the event of a crisis, as defined in the crisis Regulation, those who are subject to the border return procedure in that Regulation, because their applications were rejected in the border procedure in the procedures Regulation, and they have no right to remain, can be kept in the border return procedure for an additional six weeks – on top of the ordinary 12 weeks allowed for in the border return procedure Regulation. But as with the ordinary application of that Regulation, if they are not expelled before this extra time runs out, any detention during this period counts toward the detention time limits in the Returns Directive (see further part 7).

The procedural rules in the main crisis Regulation apply – ie a Member State cannot extend the border returns procedure unilaterally, but needs a Council decision authorising it. In that event, though, the extension of the border returns procedure can apply even to those whose asylum application was rejected before that extension was authorised.

Assessment of the crisis Regulation

To what extent, as some seem to believe, can Member States simply end the right to asylum in the event of a crisis or force majeure? In principle, not at all. The derogations in the exceptions and border return procedures Regulations are for a limited time, and only permit delays in registering applications, extensions of the Dublin deadlines, and longer periods to apply the border procedure or border return procedure – neither of which terminate the right to asylum as such. This is reinforced by the provisions of the Regulation that emphasise that other provisions of EU law, along with human rights obligations, still apply when the derogations are used. This is, of course, consistent with the Charter rights and Treaty obligations relating to human rights and asylum, including non-refoulement.

Moreover, the wording of the Regulation suggests that Member States can only derogate from EU asylum law to the extent provided for in this or other EU measures, confirming the prior case law of the CJEU (Case C-72/22 PPU; the Court has also ruled in that and many other cases that the ‘law and order’ clause in Article 72 TFEU does not give Member States carte blanche to derogate from EU asylum law). In particular, the Court ruled that, in situations of instrumentalization, Member States could not simply detain asylum-seekers on the grounds of illegal entry (as it is not a ground for detention under the reception conditions Directive, which remains the case: see part 2) or refuse to consider their asylum applications. The crisis Regulation does not provide for either of those measures as such; but Member States may attempt similar measures indirectly – by detaining people on border procedure grounds, and by closing border posts pursuant to the amendments to the Schengen Borders Code – although that and other measures regarding ‘instrumentalisation’ in the recent Borders Code amendments are subject to human rights safeguards.

Overall assessment of the asylum package

Taken as a whole, the 2024 EU asylum laws are obviously not a shift towards a more liberal legal framework for asylum and migration control. Still less are they a shift toward a radical abolition of border control, as some on the populist right are likely to claim. But nor can they plausibly be characterised, as some on the opposite side of the political spectrum claim, as a de facto abolition of the right to asylum in the EU – at least on paper. Yet it is possible that having been given an inch, Member States will take a mile; and given the record of its approach to the EU/Turkey and Italy/Albania agreements, the EU Commission may do more to help Member States in this goal than to hinder them. In that context, the role of national courts, including their requests for preliminary rulings from the CJEU, may continue to be crucial as regards the interpretation and application of EU asylum law.

Analysing the letter of the new laws (as distinct from how Member States might try to apply them), the moves towards sanctions for secondary movements and greater harmonisation of the law – rationalised as an indirect method of dissuading secondary movements – are consistent across the package. This is a reversal of the usual EU paradigm, which justifies harmonisation of law as a measure to facilitate movement across borders, not deter it.

The sanctions for secondary movement (alongside applying the Dublin rules for longer, and simply locking more people up to prevent any movement at all) entail the (conditional) loss of benefits and access to employment, the reset of the clock on obtaining EU long-term residence status, and (crucially) the deemed withdrawal of asylum applications. There is a deep inconsistency between encouraging greater negative mutual recognition of asylum refusals, while doing very little to promote positive mutual recognition (transfer of protection, mobility of international protection beneficiaries), despite the Treaty commitment to a uniform asylum status ‘valid throughout the Union’. As for harmonisation, it is not complete, but it has gone a long way, with the bonfire of most options for Member States and a lot of additional detail added to ensure that decision-making diverges less.

From the human rights perspective, it is the harmonisation of procedural standards that raises the biggest concerns. As we have seen, the restriction of appeals against Dublin transfers, a number of the deadlines to apply for appeals, and the curtailment of automatic suspensive effect of appeals are all problematic – depending on how the CJEU might approach them in light of its case law on effective remedies. On the merits, there are various default protections against non-refoulement, but it is uncertain how they will work in practice. And while the multiple fast track procedures are all subject to the observance of basic standards on paper, there are doubts about whether that is true in practice – leaving the possibility that the protections of EU asylum law will for many be a form of Potemkin village.

There is nonetheless the risk that, since NGOs have asserted that the new package destroys the right to asylum, some governments may interpret it as a licence to do just that. In this area, the problem with ‘crying wolf’ may not be so much that people stop believing your warnings – but rather that people use your cries as an inspiration to develop a wolf-based asylum policy.

The new EU asylum laws, part 7: the new Regulation on asylum procedures

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

(last updated 18 June 2024: changed text marked by asterisks)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws, which was formally adopted on May 14 2024, and published in the EU Official Journal on 22 May 2024.*

I have looked at all the new legislation on this blog in a series of blog posts, which are a preview of a forthcoming article.* This is the seventh post in the series, on the asylum procedures Regulation, along with the parallel Regulation on a borders return procedure. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the revised Dublin Regulation/AMMR (part 6), and the crisis Regulation plus general comments (part 8).*

The new package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The asylum procedures Regulation

The EU’s development of a Common European Asylum System in multiple phases has included a first phase asylum procedures Directive, adopted in 2005, and a second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’). The case law on the 2013 Directive is presumably still relevant to the 2024 Regulation, except where the latter has changed the text of the rules.

The UK and Ireland both opted into the first phase Directive, but not the second, although the UK is no longer bound by EU law due to Brexit. Ireland has also opted out of the 2024 Regulation (update, April 29 2024: Ireland has announced an intention to opt in to the Regulation).* Denmark has opted out of all the procedures laws.

The legislative process leading to the 2024 Regulation began with a proposal in 2016, which was supplemented by a revised proposal tabled in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact. The parallel Regulation on a border return procedure was carved out of the proposal; the reason for a separate law on this is that unlike the main procedures Regulation, the border return procedure Regulation will also apply to Denmark and Schengen associated countries. 

Substance of the Regulation

Like most of the new asylum laws (except the resettlement Regulation, which will apply almost immediately), the new procedures and border returns procedure Regulations will apply in about two years’ time - namely applications made after 12 June 2026.* But certain provisions (on the revised borders procedure) will have some effect earlier than that, as discussed below. Furthermore, the Commission must produce a ‘common implementation plan’ to the Council within three months of the entry into force of the procedures and border return procedure Regulations (it is planning to issue this early, in June); Member States must produce national implementation plans by December 12 2024.*

The objective of the procedures Regulation, according to the preamble, is ‘to streamline, simplify and harmonise the procedural arrangements of the Member States by establishing a common procedure for international protection in the Union’. Instead of the ‘current disparate procedures’, applications ‘should be examined in a procedure, which is governed by the same rules, regardless of the Member State where the application is lodged to ensure equity in the treatment of applications for international protection, clarity and legal certainty for the individual applicant’; this ‘should limit the secondary movements’ of asylum seekers.

To examine what the Regulation does to achieve these goals, this blog post will examine in turn: the general provisions of the Regulation; the basic guarantees for applicants; the start of the administrative procedure; the examination of applications; the border procedure (including the separate Regulation on a border returns procedure); other special procedures (accelerated applications and repeat applications); ‘safe country’ concepts (first country of asylum, ‘safe third country’, and ‘safe country of origin’); withdrawal procedures; appeals; and an overall assessment. It will focus in particular on the various ‘fast-track’ rules (borders, inadmissibility, repeat applications, accelerated cases, ‘safe’ countries) – many of which have been significantly amended – as well as the key rules on time limits and appeals.

General Provisions

As before, the Regulation applies to applications made on the territory or at the external border, including the territorial sea and transit zones, and to withdrawal of international protection, but not to applications made in consulates – although Member States can choose to apply it to applications for national forms of protection if they wish to. Conversely, one fundamental change is that unlike the 2013 Directive, the Regulation is no longer a minimum standards measure: it fully harmonises the law except where it leaves specific flexibility to Member States. This parallels the changes made to EU law on qualification for asylum (see part 1).

Guarantees for Applicants

Crucially, there is still a right for asylum-seekers to remain on the territory until the first instance decision on their application, subject to limited exceptions: the previous exceptions for repeat applications, European Arrest Warrants, or (subject to non-refoulement, ie no removal to an unsafe country) extradition to a non-EU country, plus a new exception for public security. The previous rules on personal interviews, legal assistance, special guarantees, and medical examinations are also retained with amendments (for instance, it is now mandatory to record interviews); and there is a new provision on age assessment.

Start of the Procedure

The Regulation elaborates upon the process of starting the asylum process, retaining also the key rule that asylum seekers should have an ‘effective opportunity’ to lodge an application for asylum (on the equivalent provision in the 2013 Directive, see, for example, Cases C-808/18, C-823/21, C-72/22 PPU, and C-392/22: ruling out various national measures restricting access to the asylum process, such as limitations on the numbers allowed to cross the border to apply, obligations to apply abroad in advance, pushbacks, and a refusal to consider applications in ‘instrumentalisation’ cases, ie where Belarus shoved people across the border).

Examination of Applications

The Regulation’s rules on examination of asylum applications include more harmonisation of deadlines to make decisions on asylum applications. The general deadline to decide on applications remains six months, with a further six months (rather than nine months, as previously) in three scenarios (somewhat revised: ‘complex issues of fact or law’, ‘disproportionate’ numbers of applications at around the same time, and the applicant’s non-compliance), and (as before) a possible extension to a total of 21 months after lodging the application where there is an ‘uncertain’ situation which is ‘expected to be temporary’. A previous possible general extension for three months has been dropped.

There are also deadlines in other cases now too: two months for admissibility decisions (and only ten working days for one ground of inadmissibility, relating to returns procedures); three months for accelerated proceedings; and an unspecified time limit (which must be shorter than the normal deadlines) where a court has referred a case back to the administration for a new decision.

Another big change is an important new obligation to issue return decisions pursuant to the Returns Directive alongside (or as part of) rejections of asylum applications. If a return decision has previously been issued, there is no need to issue a new one. If the return decision is separate from the asylum refusal, it must either be issued simultaneously or ‘without undue delay’ afterwards.  

Changes have also been made to the rules on inadmissibility of asylum applications – which are primarily applications which the EU believes have been, or should have been, dealt with already. As before, applications must be found inadmissible if they are repeat applications, with a slightly reworded exception: if there are ‘no new relevant elements’ (replacing ‘no new elements or findings’). Applications may be ruled inadmissible (also as before) in the event of the ‘first country of asylum’ or ‘safe third country’ principles applying, or another Member State granting international protection. However, unlike the Dublin rules as regards asylum seekers (see Part 5), there is no recognition of the CJEU case law providing that in exceptional cases a beneficiary of international protection in one Member State may request it from another Member State, if there are systematic deficiencies or an individual risk in the other Member State (see, for instance, Ibrahim).

There are also new possibilities for optional inadmissibility: an ‘international criminal court has provided relocation’, under certain conditions; or the application was filed more than a week after a return decision was issued to the person concerned, if the applicant was aware of the consequences of missing that deadline, and there are ‘no new relevant developments’ since that date. Furthermore, an application which another Member State is responsible for under the Dublin rules is still not examined on the merits (other than by the Member State responsible). Withdrawn applications are still not examined on the merits either.

Finally, the rules on withdrawal of applications now require Member States to provide for both explicit and implicit withdrawal, along with many more procedural rules than before – although the safeguard of having another opportunity to apply in cases of implied withdrawal has been dropped. Also, as noted in part 6, parallel changes to the Dublin rules mean that in some cases asylum seekers who move to another Member State will in some cases no longer have the right to have their applications considered after being transferred back to the responsible Member State.

Border Procedure

A key feature of the Regulation compared to the 2013 Directive is its approach to border procedures – which were previously an option for Member States to decide on cases subject to inadmissibility or accelerated procedures at the border or transit zones. Where there was no decision within four weeks, the applicant had to be released from detention and allowed entry into the territory of the Member State to continue with the application (see Cases C-808/18 and C-924/19 and C-925/19 PPU); and there were special rules for a large number of applicants at the border.

Under the 2024 Regulation, the scope of the border procedure is defined first, as an option – consisting of people who are not yet authorised to enter the territory. But the border procedure cannot be applied if neither inadmissibility or accelerated procedures apply, or if there is insufficient support for people with special reception or procedural needs at the border locations, or for medical reasons, or if detention standards in accordance with the reception conditions directive cannot be applied at the border. In that case the asylum-seekers must be allowed to enter the territory, and a regular procedure must apply. Also, the border procedure can only be applied to unaccompanied minors in cases of national security or public order. The purpose of the border procedure is to decide on inadmissible cases or some accelerated cases.

What is the impact of the border procedure in practice? First of all, Member States must not allow those subject to the border procedure to enter their territory, ‘without prejudice’ to the exceptions from the border procedure or to the time limits on application of the border procedure; but in the latter case, there are several exceptions where the asylum-seeker still cannot be allowed to enter the territory and the border returns Regulation must apply instead. Moreover, Member States must ensure human rights monitoring of the border procedure equivalent to that in the Screening Regulation (see part 5).

But as with that Regulation, the ban on entering the territory is a legal fiction, as the locations of the border procedure could be either at or near the borders or transit zones or on the territory; yet this still does not count as authorisation to enter the territory. Even travel for health care or legal proceedings does not count; the Regulation maintains its legal fiction even inside courtrooms. However, as with the screening process, this legal fiction does not mean that the borders procedure is a law-free zone. Far from it: the Regulation itself applies a corpus of law to the procedure, and makes other law applicable too, referring to the detention conditions standards under the reception conditions Directive (see Part 2) and the basic procedural guarantees in the procedures Regulation itself – which include the right to remain until the first instance decision. The absence of a right to enter may, however, make it easier to justify detention from an ECHR perspective, given the ground to detain to prevent unauthorised entry in Article 5(1)(f) ECHR; and in any event, the revised reception conditions Directive provides that being subject to the borders procedure is a ground for detention as such.

Secondly, there is a 5-day deadline to lodge applications, and a 12-week deadline to decide on them. Member States must derogate from the usual administrative and judicial deadlines in the Regulation to ensure that the 12 week deadline is met – although this can be extended to 16 weeks in relocation cases. If the deadline is not complied with, then the asylum seeker can enter the territory, unless the border return procedure applies. Note that the 12 week deadline covers both administrative and judicial procedures – whereas the usual three months for accelerated cases and two months for inadmissibility cases only cover the administrative phase. Presumably, in line with the prior case law, detention (at least, detention solely on border procedure grounds) must still end when the time limit for the border procedure expires (again, see Cases C-808/18 and C-924/19 and C-925/19 PPU); but that procedure (and therefore detention) can apply for much longer than the 4 weeks under the previous Directive.

The most fundamental change from the previous Directive is that the border procedure is now mandatory, for three categories of accelerated cases: misleading statements or bad faith behaviour; national security or public order; and the new category of applicants from countries with low recognition rates (below 20%). However, this obligation applies to a limited number of asylum-seekers: the ‘adequate capacity’ for the mandatory border procedure is set at 30,000 people across the EU, and the Commission is to determine the allocation of that capacity for each Member State, with the numbers that each Member State is obliged to assess in a border procedure rising to a total of 120,000 annually by 2028. The Commission must adopt the first of these allocation decisions within two months of the Regulation’s entry into force, then will adopt further such measures on October 15 for subsequent three-year periods.

For those whose application is rejected while in the borders procedure, the parallel Regulation on a border return procedure applies. This Regulation provides that those rejected in the border procedure still do not have a right to enter the territory. Instead, Member States must require them to reside for up to 12 weeks ‘in locations at or in proximity to the external border or transit zones’; but if Member States cannot accommodate the refused asylum seekers there, they can resort to using other locations on their territory – exacerbating the legal fiction of non-entry. A swathe of provisions of the Returns Directive apply during this process. In fact, the Returns Directive fully applies if the rejected asylum seeker is not returned within the 12 week period. However, the rules on the prospect of voluntary departure are stricter than under that Directive.

The borders return procedure Regulation also includes rules on detention. There is a general provision that detention is a ‘last resort if it proves necessary on the basis of an individual assessment of each case and if other less coercive measures cannot be applied effectively’, but that is then undercut by more specific provisions. These provide for continued detention (post refusal of asylum) of those detained already, ‘for the purpose of preventing their entry into the territory of the Member State concerned, of preparing their return or of carrying out the removal process’. Rejected asylum seekers who were not detained before can be detained too, on partly different grounds: ‘risk of absconding’ as defined in the Returns Directive, or ‘if they avoid or hamper the preparation of return or the removal process or they pose a risk to public policy, public security or national security’. But there are time limits to detention under the border return procedure: either the 12-week maximum in this Regulation, or (if detention is ordered under the Returns Directive after that period expires) the detention under the Regulation counts towards the time limits on detention in that Directive. Logically, by analogy with the case law on the border procedure, detention under the border returns procedure must end when this time limit is up – unless there is another ground for detention.

Accelerated Procedures and Repeat Applications

Besides the radically overhauled rules on the border procedure, there are two other types of special procedures retained in the new Regulation: for accelerated applications and repeat applications. Both of these special procedures have also been amended.

First of all, the rules on accelerated procedures are now mandatory (‘shall’), rather than optional (‘may’). As before, there are ten grounds for accelerated procedures, although some of them have changed:

a) the claim is irrelevant to the grounds of international protection;

b) obviously false or contradictory claims;

c) the asylum seeker has been misleading or acted in bad faith destroying documents (now subject to a ‘good cause’ justification, and a requirement of intention);

d) the asylum seeker has brought the claim to frustrate an expulsion order;

e) the rules on ‘safe country of origin’ apply;

f) national security or public order;

g) the application is a repeat application that is not inadmissible (ie it has new elements);

h) the asylum-seeker entered or stayed ‘unlawfully’ and ‘without good reason’ did not present themselves to the authorities ‘as soon as possible, given the circumstances of’ their entry (similar to the provisions of Article 31 of the Refugee Convention, on the conditions for non-application of penalties to refugees who entered unlawfully);

i) (new) the applicant entered lawfully, but ‘without good reason’ did not apply ‘as soon as possible, given the grounds of his or her application’, although this is ‘without prejudice’ to applications sur place (ie applications for asylum due to new circumstances after entry on the territory; see part 1);

j) and finally (also new) the applicant is a national or a stateless habitual resident of a country with a recognition rate below 20% or below, according to annual Eurostat data – unless there has been a ‘significant change’ in that country, or the asylum seeker ‘belongs to a category of persons for whom the proportion of 20% or lower cannot be considered as representative for their protection needs, taking into account, among others, the significant differences between first instance and final decisions.’

This move to a mandatory accelerated procedure for a potentially large proportion of applications – with an apparently absolute obligation to decide cases within three months – is watered down by the new possibility that the determining authority may simply decide that the case is ‘too complex’, so the ordinary procedure must apply. Obviously the interpretation of the various grounds for applying accelerated procedures will be crucial. Furthermore, for unaccompanied minors, only five of the ten grounds can be applied; and the obligation to apply accelerated procedures is ‘without prejudice’ to the rules on vulnerable persons, which state that an authority must not apply (or cease applying) an accelerated procedure if it believes that ‘the necessary support cannot be provided within the framework’ of that procedure, ‘paying particular attention to victims of torture, rape or other serious forms of psychological, physical, sexual violence or gender-based violence’.

In contrast, fewer changes have been made to the rules on repeat applications. As before, an application made before the previous application has been decided does not count as a repeat application, and repeat applications made in any Member State after a final decision was taken must be considered by the Member State responsible under the Dublin rules. It remains to be seen whether an application in a second Member State counts as a repeat application under the 2013 Directive (see Khan Yunis, pending; an application following a decision in Norway (Case C-8/20) or Denmark (Case C-497/21) does not count as a repeat application, because those countries are not bound by EU asylum law other than Dublin); and the point might be relitigated under the Regulation.

In the event of a repeat application, there is still an initial examination, although it now looks solely at whether there are new elements (rather than new elements or findings) which ‘significantly increase the likelihood of the applicant to qualify’ for international protection (see interpretation of this rule in the 2013 Directive by the CJEU: it can apply to CJEU judgments (Cases C-924/19 and C-925/19 PPU and C-216/22), and to new documents (Case C-921/19)). If there are new elements as defined, then the repeat application has to be considered on the merits, unless another ground of inadmissibility applies. Otherwise, there is an obligation to consider the repeat application inadmissible. Finally, as before Member States have an option to remove the right to remain on the territory during repeat applications, or the suspensive effect of appeals, if there are no new elements and the asylum seeker has made a first repeat application ‘merely in order to delay or frustrate the enforcement of a decision which would result in the applicant's imminent removal from that Member State’, or if they have made multiple repeat applications. But this is still subject to the principle of non-refoulement, although it is no longer clear how that should be assessed. And as noted already, those repeat applications which are not inadmissible (because they do not raise new elements) are anyway (ie even if they do raise new elements) still subject to the rules on accelerated procedures – which are now also mandatory.

‘Safe’ Country Concepts

As before, there are three types of ‘safe country’ concepts (‘first country of asylum’, ‘safe third country’, and ‘safe country of origin’), but there are a number of changes to them.

First of all, there is a new overarching definition of ‘effective protection’, which is relevant to the first two of the three rules. If a non-EU country ‘has ratified and respects’ the Refugee Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’. But in other cases, and where a non-EU country has applied a geographical limit to the Convention, that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care, and education, and ‘effective protection remains available until a durable solution can be found’. In practice, the point is most obviously relevant to Turkey, where the invocation of the geographical limit in Article 1.B of the Convention means that only those fleeing Europe can claim refugee status – leaving African or Asian people unable to claim refugee status in Turkey, despite its position as a transit country. The new provision has presumably been inserted to confirm the practice of the EU institutions and Member States of assuming that Turkey meets the definition of ‘safe third country’ – a point not tested before the CJEU. But the new law means that even countries which have not ratified the Convention at all can be covered by the ‘effective protection’ concept.

This brings us to the ‘first country of asylum’ notion as such: the idea that the asylum seeker (supposedly) already had protection elsewhere. The concept is elaborated upon, compared to the previous Directive: it can ‘only’ apply if the person enjoyed refugee status or ‘effective protection’ as already defined, and is not threatened on Refugee Convention grounds, does not face a subsidiary protection risk as defined in the Qualification Regulation, and is protected against refoulement under the Convention and removal to face an Article 3 ECHR risk. The Regulation also includes specific protections for unaccompanied minors, and builds upon previous requirements that the asylum seeker must be readmitted to that country and can challenge the determination.

Secondly, the concept of ‘safe third country’ – the idea that the asylum seeker (supposedly) already could have sought protection elsewhere – is retained, with some amendments: not threatened on Refugee Convention grounds; not facing a subsidiary protection risk as defined in the Qualification Regulation; protected against refoulement under the Convention and removal to face an Article 3 ECHR risk (of torture or other inhuman or degrading treatment); and (as revised) able to enjoy ‘effective protection’ in the non-EU country (as defined by the Regulation), in place of (previously) being able to obtain refugee status under the Refugee Convention. Another change is that it is possible to exempt parts of a country or certain groups of people from that country from the designation, or even (bizarrely) to target it on individual applicants. The previous variation on this rule – sarcastically dubbed the ‘super-safe third countries’ rule – has been dropped.

Crucially, the Regulation retains key safeguards: asylum-seekers can still challenge the application of the concept in their individual circumstances, and it is still necessary to have a ‘connection between the applicant and the third country in question on the basis of which it would be reasonable for him or her to go to that country’. The preamble still suggests a high threshold to find a ‘connection’ with the non-EU country (‘[t]he connection between the applicant and the safe third country could be considered established in particular where members of the applicant’s family are present in that country or where the applicant has settled or stayed in that country’), consistently with the case law on the 2013 Directive (see Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries), apparently still ruling out a ‘Rwanda’ policy (like the UK’s) of expelling asylum-seekers to countries they have nothing to do with – although as the example of the Italy/Albania deal suggests, the EU institutions may take a different view (the CJEU has not been asked yet whether it agrees with that view, and the Italy/Albania deal has significant differences from the UK’s Rwanda policy).

There is also a new safeguard for unaccompanied minors, and retained safeguards as regards information for the asylum-seeker and the third country, and if the asylum-seeker is not readmitted (on how this safeguard – notably not applicable to the UK’s Rwanda policy – works, see pending Case C-134/23). Finally, a new provision provides that a presumption of safety ‘may be considered fulfilled’ if the EU and a non-EU country agree in a treaty that ‘migrants admitted under this agreement will be protected in accordance with the relevant international standards and in full respect of the principle of non-refoulement’. But this is ‘without prejudice’ to the safeguards on individual assessment, unaccompanied minors, and – crucially again, and unlike the UK/Rwanda treaty – a connection with the country concerned, thus ruling out a Rwanda scenario in this context too.

Thirdly, the concept of ‘safe country of origin’ – ie, the asylum seeker was (supposedly) obviously never in danger to begin with – is retained, based (as before) on whether there is no risk of persecution or serious harm in a country, based on the legal and political situation there, taking account of the law, human rights record, non-refoulement and availability of effective remedies in that country. As with ‘safe third country’, it is now possible to exempt parts of a country or certain groups of people from that country from the designation. But as before, the concept can only to apply to nationals, or formerly resident stateless persons, of the country in question; and the presumption can be rebutted in an individual assessment. Furthermore, the preamble states (applying also to ‘first country of asylum’ cases) that these concepts should not apply where the asylum-seeker is covered by the family reunion Directive, or is the family member of an EU citizen with free movement rights.

For both the ‘safe third country’ and ‘safe country of origin’ notions (but not the ‘first country of asylum’ notion), there is a more fundamental step towards harmonisation: the prospect of common EU lists. This is the latest attempt at providing for such lists, and it implicitly assumes that they will be adopted by the ordinary legislative procedure (ie a Commission proposal, qualified majority in the Council and negotiation with the European Parliament). Such lists must comply with the general criteria which apply to the designation of such ‘safe’ countries, although the Commission must review the designations regularly; a comparable safeguard was notably rejected as regards the recent UK legislation on the supposed safety of Rwanda. And unlike in the UK, if the CJEU ruled that a designation of a country as ‘safe’ was in breach of the Charter, it would not be possible for the EU’s political institutions to simply pass a law saying that they considered it safe regardless of that judgment – because as primary EU law, the Charter takes precedence over EU legislation.

However, due to the potential for sudden developments in those non-EU countries, there is a potential fast-track process to amend the lists. In the event of ‘significant’ changes in a country on the list, the Commission must ‘conduct a substantiated assessment of the fulfilment by that country of the conditions’ in the Regulation, and can adopt a delegated act suspending the ‘safe’ status of that country for a period of six months if it believes that the conditions are no longer met. Within three months of that delegated act being adopted, the Commission has to decide whether or not to propose legislation to the Council and Parliament to make that suspension permanent. If it does not make such a proposal within three months, the suspension lapses, and the country returns to the list; if it does make a proposal, it can extend the suspension of the country from the list for two further six-month periods. But if the proposed legislation on permanent suspension is not adopted within 15 months, the country returns to the list.  

As for national lists, Member States can in principle adopt their own lists supplementing any EU list. However, they cannot put a country on a national list while the delegated act suspending that country from an EU list is in force. After a country is removed from the list by EU legislation, a Member State can potentially add that country back to a national list; but for a two-year period after the removal from the list, the Commission can block a Member State from doing that.

While all three types of ‘safe’ country rules remain optional in principle (‘may’), it is not clear whether the adoption of EU lists, which appears to be mandatory (‘shall’) changes that. Arguably, the real issue is the link with other parts of the Regulation: the ‘first country of asylum’ and ‘safe third country’ rules link to the inadmissibility rules, which remain optional (except as regards repeat applications with no new elements), while the ‘safe country of origin’ rules link to accelerated procedures, which have become mandatory. And both those types of procedures link to the borders procedure, albeit not being grounds for the mandatory use of that procedure; some of the ‘safe country’ rules also entail no automatic suspensive effect of an appeal.

Withdrawal Procedure

There is still an obligation to start the process of withdrawing international protection if evidence emerges suggesting ‘reasons to reconsider’ that status. The rules on the procedure in such cases have been further developed, in particular providing for obligations upon the beneficiary of international protection to cooperate.

Appeals

As before, the right to an appeal has a broad scope, although it is redrafted in light of the revised terminology in the Regulation. In particular, while there is a right of appeal against the new prospect of a return decision issued in connection with a refusal of an asylum application, the return decision can be appealed separately if it was issued separately. Conversely, where a return decision is part of an asylum refusal, it must be appealed jointly (see the preamble). Subsidiary protection beneficiaries who were refused refugee status have a stronger right to appeal the refusal of refugee status. The right to a full ex nunc examination of facts and law, at least in the first instance of appeal, is retained (there is extensive case law on the equivalent provision of the 2013 Directive; see, for instance, Case C-406/18, trying to squelch the Hungarian government’s attempts at non-compliance with judgments). There are still provisions on interpretation and translation during appeals.

However, there is an important change as regards time limits: the Regulation now details deadlines for applicants to bring appeals, which must be between five and ten days as regards implicitly withdrawn, inadmissible, or accelerated cases, and between two weeks and a month in all other cases. There is also now an obligation for Member States to lay down deadlines on courts issuing judgments – although note that the CJEU case law on the 2013 Directive (where such deadlines were an option) said that the national courts should simply ignore those time limits if necessary to take enough time to consider the appeal sufficiently (Case C-406/18).

Finally, a crucial issue as regards appeals in asylum cases is their suspensive effect. As before, the Regulation grants the right to stay on the territory pending or during the exercise of the right to appeal (now extended to linked return decisions) – but subject to wide exceptions, ‘[w]ithout prejudice to the principle of non-refoulement’, which are now mandatory. The exceptions are: accelerated cases; border procedure cases (except for unaccompanied minors); most inadmissibility cases; implied withdrawals; repeat applications; and most withdrawals of status. Compared to the 2013 Directive, the lack of suspensive effect is broader for accelerated cases (the previous exception for unlawful entry cases was dropped, as were the additional safeguards in border procedure cases), different for inadmissible cases (automatic suspensive effect is still dropped for ‘first country of asylum’ and repeat applications; this now also applies to international court cases and last minute ‘frustration of return’ cases; it is no longer dropped for ‘other Member State’ cases), and new for implied withdrawals and withdrawals of status. Of course, many of these procedures are also now broader in scope, as discussed above.

However, there is still a safeguard applying to the exceptions: the national court hearing an appeal may decide to let the asylum-seeker stay anyway, in individual cases; and there are further safeguards pending that decision: as before, the right to stay as long as this interim decision could be or has been requested, plus new safeguards (a time limit of at least five days to request to remain during appeal; interpretation; legal aid; and being informed of the right). But there is now an option to drop the most important safeguard (the right to stay pending the decision on whether there is a longer right to stay) for repeat applications ‘if the appeal has been made 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’, although this is again ‘without prejudice to the respect of the principle of non-refoulement’, begging the question again of how that principle can be upheld if it is at risk in such cases. Integrating the prior case law, the Regulation provides that whether there is a further level of appeal, and whether the asylum-seeker gets to stay in that case, is up to Member States.

Assessment

The procedures Regulation does not simplify the rules, as claimed in the preamble: one special process is removed, but the remaining special procedures are made more complex, especially the borders procedure. If the EU really wanted to simplify asylum procedures, it could have cut the size of this Regulation by about two-thirds, by dropping all of the special procedures and simply setting out basic procedural guarantees and (uncomplicated) appeal rights. But obviously that is the last thing that Member States want to do.

Although the Regulation has not actually been simplified, it certainly entails significantly more harmonisation, not only by means of detailing the law further but also by means of making some provisions fully mandatory (accelerated procedures), or mandatory for a significant number of people (border procedures). And this move towards harmonisation does not only aim to deter secondary movements by the fact of harmonisation per se, but also (in conjunction with the Dublin rules) by providing that those who make an application then move between Member States will be regarded as having implicitly withdrawn their application. Furthermore, as with the revised Dublin Regulation and the amended reception conditions Directive, it prevents secondary movement by locking more people up – an implicit likely consequence of the greater use and longer duration of the borders procedure, which is a ground for detention per se.

To what extent does this threaten human rights protection? One issue here is the limited time periods to challenge a decision (which parallels the limited time periods to challenge a Dublin transfer decision). On this point, the CJEU case law on effective remedies in asylum cases is something of a dog’s dinner: a 15-day deadline in one context breached the principle of effectiveness of EU law (Danqua); a 15-day time limit in another context did not (Diouf); a 10-day deadline to challenge an inadmissibility decision was not a breach in one case (Case C-651/19), but a more general eight-day deadline in inadmissibility cases was (Case C-564/18); as was a three-day deadline in an accelerated procedure (Abboudnam). The most that can be gleaned from these cases is that if Member States choose the shortest possible deadlines available to bring challenges under the Procedures and Dublin Regulation, that short deadline may breach the Charter, depending on the details of the procedural circumstances.

As for (in effect) not allowing an asylum application at all because of secondary movements, this is fundamentally problematic, going beyond the logic of the Dublin system (applicants must have a chance to apply for asylum somewhere in the EU), or even the ‘safe third country’ principle (applicants should have applied for asylum somewhere else ‘safe’) – because it can apply regardless of whether someplace else is ‘safe’. It is submitted that this is a breach of the right to seek asylum in Article 18 of the Charter that cannot be justified on the basis of Article 52 of the Charter, because it breaches the essence of that right.

Finally, the new Regulation attempts to let itself ‘off the hook’ for low standards at several points, by saying that these low standards are without prejudice to the principle of non-refoulement. The best approach to these vague provisions is to interpret them by analogy to the case law on non-refoulement under the Returns Directive and as a back-up to the withdrawal of international protection – a right to stay on the territory and, where relevant, the suspensive effect of an appeal.