Professor Steve Peers,
Royal Holloway, University of London
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 intended to be part of a ‘package’ of new or revised EU asylum laws.
I have looked at all these agreements
for new legislation on this blog in a series of blog posts (see the agreed
texts here). 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 planned new qualification
Regulation (part 1), the revised reception
conditions Directive (part 2), the planned 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).
As noted in the other posts in
this series, all of the measures in the asylum package could in principle be
amended or blocked before they are adopted, except for the previous Regulation
revising the powers of the EU asylum agency, which was separated from the
package and adopted already in 2021. I will update this blog post as necessary
in light of developments. (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 two years’
time (so likely in spring 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 within six
months of these Regulations’ entry into force.
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.
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