Steve Peers, Professor of Law, Royal Holloway
University of London
Photo credit: Paula Reister, via Wikimedia
Commons
Introduction
The EU has finally adopted
two amendments to the EU’s asylum pact, entailing significantly more stringent
rules as regards ‘safe countries’ of origin’ (adopted text here)
and particularly ‘safe third countries’ (adopted text here).
This blog post summarises the new
laws in their context, and then examines how much they impact upon the ability
to claim asylum in the EU in practice – in particular the introduction of a
‘Rwanda clause’ in EU law, mirroring the last UK government’s attempt to
designate that country as ‘safe’ even for asylum-seekers who had not travelled
through it.
Background
The history of the two ‘safe
countries’ concepts in EU law goes back initially to 1992, in the form of the
London Resolutions of Member States’ ministers (see here and here). The concepts
then appeared in the initial 2005 asylum procedures
Directive, since replaced by the current 2013 asylum procedures Directive. The 2013 law will be replaced,
as from 12 June 2026, by a new Regulation on asylum
procedures, adopted in 2024 (the ‘2024 Regulation’, which I
previously discussed here), part of the
EU’s asylum pact. While the 2024 Regulation already makes the rules more
stringent than in the 2013 Directive, the 2026 amendments now make those rules
more restrictive again.
(For earlier blog posts on the
2026 amendments, see my analysis of the Commission proposal here, and my
analysis
of the Council and Parliament positions).
‘Safe countries of origin’
2024 Regulation
The 2024 asylum pact Regulation
retains the definition of ‘safe country of origin’ from the 2013 Directive,
referring to a list of human rights standards. As in the 2013 Directive, the
rule can only apply if an asylum-seeker is a national of the country concerned,
or is a stateless person formerly habitually resident there; and the principle
remains a presumption, which the applicant can rebut in individual cases.
However, there are several
changes. First of all, the rule will become mandatory for Member
States, instead of an option. Secondly, it will be possible to designate a
non-EU country of origin as ‘safe’ in part, either geographically
(exceptions for ‘specific parts of its territory’) or for some groups of people
(‘clearly identifiable categories’). Recent Court of Justice judgments have
confirmed that such designations are not possible under the 2013 Directive (see
here and here).
Thirdly, the 2024 Regulation
makes it possible for the EU to adopt a common list of ‘safe countries of
origin’, alongside Member States’ designation of such countries.
Countries can be taken off the common EU list in the event of ‘significant
changes’ there, initially by means of a delegated act adopted by the
Commission, then via legislation. Member States cannot put the country back on
their national list of ‘safe countries of origin’ while a delegated act
suspending it from the list applies; and for two years after the country is
dropped from the common EU list via legislation, Member States need the
Commission’s approval to reinstate it on their national lists.
Fourth, in place of a general
reference to speeding up consideration of ‘accelerated’ cases (including ‘safe
country of origin’ cases) in the 2013 Directive, there will be a three-month
deadline to decide on such cases, although if an authority considers
the asylum application to be too complex, it can default to the usual six-month
deadline to decide on the merits. (This general deadline has not been amended,
although the possibilities of extending it have been partly curtailed).
Fifth, a new ground for
accelerated procedures, overlapping with the ‘safe third country’
ground, has been added: Member States must also fast-track cases where the most
recent annual recognition rate for asylum claims for the asylum-seekers’
nationality is below 20% EU-wide at first instance (ie before appeals), ‘unless the determining authority assesses
that a significant change has occurred in the third country concerned
since the publication of the relevant Eurostat data or that the applicant
belongs to a category of persons for whom the proportion of 20 % or
lower cannot be considered to be representative for their protection needs,
taking into account, inter alia, the significant differences between first
instance and final decisions.’ It is also mandatory, and subject to the same
deadlines.
Sixth, while the ‘safe country of
origin’ concept remains a ground for applying special border procedures,
as under the 2013 Directive, those border procedures have been changed. They
are now mandatory in principle (for a specific number of asylum-seekers per
Member State) and can now last for up to twelve weeks (including both the
administrative and judicial phase of the case), instead of four weeks.
Presumably the Court of Justice case law, requiring
that asylum-seekers be released from detention (if that was the only ground for
it) and admitted on to the territory at the end of the border procedure
deadline, still applies. Unaccompanied minors will be exempt from the revised border
procedure, unless they are ‘national security’ or ‘public order’ risks.
Finally, it will be mandatory,
instead of optional, for Member States to deny automatic suspensive effect
to appeals in ‘safe country of origin’ cases, and several safeguards
related to the lack of automatic suspensive effect are dropped. However, it will
still be possible for asylum-seekers to ask a court for permission to stay
during the appeal. On appeals, there is nothing to suggest that the case law of
the Court of Justice on the 2013 Directive (Alace) has been overturned.
In that case, the Court said that: a Member State’s designation of a ‘safe
country of origin’ has to be subject to judicial review; the sources of
information used for the designation must be provided to the applicant and to
courts; and courts must be able to examine other sources of information.
2026 amendments
First of all, the new Regulation allows
(as an option) the early application (ie before June 2026, from the day after publication
of the new law in the EU Official Journal) of the possibility of partial
designation of a country as a ‘safe country of origin’ (either geographically
or for certain groups of asylum-seekers), as well as the new ‘20% recognition
rate’ rule. In particular, this is intended to allow for the earlier
application of the Italy/Albania arrangements on processing asylum-seekers on
Albanian territory, which were in effect frustrated by the Court of Justice’s
interpretation of the current Directive. Of course, other Member States might
have a use for earlier application of the rules too.
Furthermore, the 2026 amendments similarly
allow for early application of the partial designation of countries as ‘safe
third countries’.
The early application of the 2024
version of these rules can also be applied at the borders, in the current
version of the border procedure. This means that, among other things, the 2024
exclusion of most unaccompanied minors from the border procedure will not apply
until the 2024 Regulation fully enters into force in June.
Secondly, the 2026 Regulation
sets out a common EU list of ‘safe countries of origin’, as from the entry into
force of the Pact: Bangladesh, Colombia, Egypt, India, Kosovo, Morocco and
Tunisia, plus candidates for EU accession (Serbia, Montenegro, Albania, North
Macedonia, Bosnia-Herzegovina, Turkey, Ukraine, Moldova and Georgia).
The accession candidates are,
however, subject to special rules: they cannot be regarded as ‘safe’ if they
have been subjected to EU foreign policy sanctions due to their actions ‘affecting
fundamental rights and freedoms that are relevant to’ the definition of ‘safe country
of origin’; or if their recognition rate is above 20% at first instance; or if
there is a ‘serious threat to a civilian’s life or person by reason of
indiscriminate violence’ in that country (which is an amended version of one of
the grounds for ‘subsidiary protection’ in EU law; the requirement that the
threat also be ‘individual’ does not apply in this context). The preamble draws
the obvious conclusion that ‘Member States should not apply the concept of safe
country of origin to applicants from a candidate country during the period in
which the circumstances provided for by this Regulation persist.’
It appears that in place of the
usual rules on suspending a country from the list, the accession candidates
will be removed following a notification from the Commission to the Council,
European Parliament and Member States. However, to trigger the ‘serious threat’
ground for removal from the list, the Commission will need approval from the
Council first. Presumably the default voting rule of qualified majority in the
Council will apply. According to the preamble, the Council’s role is necessary ‘in
view of the potential implications for the external relations of the Union and
the Member States’ in this scenario.
Several of these points (dropping
the ‘individual’ criterion, qualifying the sanctions point, and creating a role
for the Council) were changes from the Commission’s original proposal, made at
the Council’s behest. The European Parliament’s proposed amendment (removing a
country from the list if the temporary protection Directive applied – obviously
referring to Ukraine) was not agreed, although the final version of the
preamble says that the application (or termination) of temporary protection
under that Directive should be taken into account when assessing whether a ‘serious
threat’ exists. Moreover, the Parliament’s proposal to use delegated acts (ie
the usual process) to remove candidate countries from the common list was not
agreed either.
The Regulation also now provides
for the possibility (again, at the Council’s behest) that a country on the
common EU list can be de-listed in part, ie using the exceptions for parts of a
country or groups of people which Member States can use.
Finally, at the behest of the
Parliament, a clause in the preamble to the 2026 amendment appears to hint at
limiting judicial review in individual cases:
[a ‘safe
country of origin’] designation reflects the general situation in that country
and is not affected by the individual circumstances, which may only be assessed
for the purposes of determining whether the concept of safe country of
origin should exceptionally not be applied in a specific case. Therefore, in
the context of national judicial review, the detailed evidence regarding an
applicant’s individual situation justifying the applicability of the concept of
safe country of origin should be the main purpose of that assessment. In
accordance with the Treaties, the Court of Justice of the European Union is
competent to rule on any doubts on the validity of a designation of a third
country as a safe country of origin at Union level.
This is slightly more equivocal than
the EP’s proposed amendment on this point, which had read:
…national
judicial review should examine the detailed evidence regarding an applicant’s
individual situation justifying, in his or her case, the inapplicability of the
concept of safe country of origin and not the designation as such.
‘Safe third countries’
2024 Regulation
The 2024 Regulation (before the
2026 amendments) makes a number of changes to the rules on this issue as
compared to the 2013 Directive. First of all, it will be simpler to designate a
country as a ‘safe third country’ in one respect: there need not be an
opportunity to request and receive Refugee Convention refugee status there.
Instead, if a non-EU country ‘has ratified and respects’ the Convention, within
the limits of any reservations and limitations, that country ‘shall be
considered to ensure effective protection’; but if has not ratified the
Convention, or applies a geographical limit to it (ie Turkey), 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’.
Secondly, as with ‘safe countries
of origin’, it will now be possible to regard a country as a ‘safe third
country’ only partly, ie ‘with exceptions for specific parts of
its territory or clearly identifiable categories of persons’. A country can
even be a ‘safe third country’ for an individual applicant.
Thirdly, there will be new safeguards
for unaccompanied minors: a ‘best interests’ test and a prior assurance
that the non-EU country will take them in charge and give them immediate access
to effective protection.
Fourth, there will now be a two-month
deadline for deciding ‘safe third country’ applications (and most other
inadmissible applications), with a possible extension of up to two months in
certain circumstances.
Fifth, there will also now be a
new prospect of a common EU list, which works the same way as the
possible common list of ‘safe countries of origin’ (and removals from it)
described above.
Sixth, the revised border
procedure in the Regulation (described above), will also apply to ‘safe
third country’ cases.
Several elements have not
changed, though. It is still necessary that, in the country concerned,
there is: no threat to [life or liberty’ on any of the grounds set out in the
Refugee Convention; ‘no risk of serious harm’ as defined in EU law as regards
subsidiary protection; respect of the non-refoulement principle in the
Refugee Convention (ie not sending the asylum seeker to an unsafe country); and
respect for ‘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’.
Also, the principle will still
only be optional for Member States; and the rule still cannot be applied unless
the asylum-seeker will be admitted to the country concerned. Also, the rule can
only apply if the asylum-seeker has a ‘connection’ with the other country, ‘on
the basis of which it would be reasonable’ for the asylum-seeker to go there;
it must still be possible for the asylum-seeker to challenge the alleged safety
of the country concerned for them, as well as their supposed connection with
it. Finally, as before, appeals in ‘safe third country’ cases will still have
automatic suspensive effect.
2026 amendments
First and foremost, the new
Regulation (which will apply from June, along with the rest of the asylum pact)
has dropped the requirement that the ‘safe third country’ principle
can only be applied in the event of a ‘connection’ to the supposedly ‘safe’
third country. There are further explanations of that principle in the
preamble:
Member States
should, while fully respecting the parameters set out in the case law of the
Court of Justice of the European Union, be able to apply the concept of safe
third country on the basis of a connection as defined in conformity with
national law or practice, in so far as specifically defined therein. The
connection between the applicant and the third country could be considered
established in particular where members of the applicant’s family are present
in that third country, where the applicant has settled or stayed in that third
country, or where the applicant has linguistic, cultural or other similar ties
with that third country.
It will now also be possible to
apply the ‘safe third country’ principle in two other cases. First, it can be
applied where the asylum seeker had transited through that
country on the way to the EU, as further explained in the preamble:
…transit
through a third country could include a situation where an applicant has passed
through or stayed on the territory of a third country on the way to the Union,
or where the applicant has been at the border or in a transit zone of a third
country, where that applicant has had the possibility to request effective
protection from the authorities of the third country concerned.
Secondly, the ‘safe third country’
principle can now apply to a Rwanda-type deal with a country that
the asylum-seeker had neither a connection with nor transited through: ‘there
is an agreement or an arrangement [with the non-EU country concerned]…requiring
the examination of the merits of any requests for effective protection made in
the third country concerned by applicants subject to that agreement or
arrangement’.
Such an agreement or arrangement can
either be negotiated by the EU or one or more Member States; the Member States
might even negotiate it alongside non-EU countries (say the UK, or the US?).
There are detailed rules on how any EU negotiations relate to Member State
treaties on the issue.
However, the new ‘Rwanda’ criterion
will not apply to unaccompanied minors, although the Parliament had argued that
it should apply to children who were security threats. The new transit
criterion will apply to unaccompanied minors though, although the current
safeguards for them in ‘connection’ cases (best interests of the child, certain
assurances from the country concerned) in the 2024 Regulation will apply to ‘transit’
cases too. The preamble also refers to considering the family unity principle.
Finally, the new Regulation has
altered the rules on appeals, so that there will no longer be
automatic suspensive effect in ‘safe third country’ appeals, except for
unaccompanied minors subject to the border procedure. The amendments also (at
the Council’s behest) drop automatic suspensive effect in cases where the
asylum seeker has international protection from another Member State, even though
Court of Justice case law provides
for the possibility of applying for international protection in another Member
State to avoid harsh conditions in the Member State which granted such
protection, where the latter Member State treats the beneficiaries of
international protection so badly that it amounts to a breach of the EU Charter
of Fundamental Rights. Nevertheless, it will still be possible to request a
court to grant suspensive effect.
Other features of the ‘safe third
country’ principle have not changed: it will remain optional for Member States,
and the rules will not change as regards criteria defining the ‘safety’ of a
country as such, the applicable deadlines, the related rules on the border
procedure, or the requirement that Member States must consider the merits if
the third country concerned refuses to admit the asylum seeker. Nor does it use
the power to adopt a common EU list of ‘safe third countries’.
Assessment
The ‘safe country of origin’
amendments in particular are partly aimed at overturning case law of the CJEU,
not only as regards allowing geographical and group exceptions from the principle,
but also (on a more lasting basis, given that those exceptions would be allowed
from June anyway) as regards limiting national judicial review of the national lists
of such countries.
However, this apparent attempt to
limit judicial review would, if the provision is interpreted as such, breach the
EU Charter of Fundamental Rights. The Court of Justice’s Alace judgment
refers several times to Article 47 of the Charter (the right to an effective
remedy and a fair trial), when ruling that it must be possible to challenge the
designation of countries as ‘safe countries of origin’ (underlining and bold
text added):
…it should be
noted that the obligation imposed on Member States by Article 46(1) of
Directive 2013/32 to provide for a right to an effective judicial remedy for
applicants for international protection, the scope of which is defined in
Article 46(3) of that directive, corresponds to the right to an effective
remedy guaranteed by Article 47 of the Charter… [para 53]
…although, in
the absence of EU rules on the matter, it is for the national legal order, in
accordance with the principle of procedural autonomy of Member States and
subject to the observance of the principles of equivalence and effectiveness,
to lay down the detailed procedural rules governing remedies for ensuring that
individual rights derived from the EU legal order are safeguarded, Member
States nevertheless have the responsibility to ensure observance in every case
of the right to effective judicial protection of those rights as guaranteed
by Article 47 of the Charter, the scope of that right being clarified,
in the present case, by Article 46 of Directive 2013/32… [para 64]
…the choice,
by a Member State, of the competent authority and the legal instrument
effecting the designation, at national level, of safe countries of origin, in
accordance with Articles 36 and 37 of Directive 2013/32, cannot affect its
obligations under that directive. It is thus for each Member State, inter alia,
to ensure respect for the right to an effective judicial remedy which
Article 46(1) of that directive confers on applicants for international
protection against decisions taken on their applications, the scope of which is
defined by Article 46(3) of that directive. [para 65]
In that
regard, the Court has held that, in accordance with Article 46(3) of
Directive 2013/32, read in the light of Article 47 of the Charter,
where an action is brought before a national court or tribunal against a
decision taken on an application for international protection – examined
in the context of the special scheme applicable to applications lodged by
applicants from third countries designated, in accordance with Article 37
of that directive, as safe countries of origin – that court or tribunal
must, as part of the full and ex nunc examination required by
Article 46(3) of that directive, raise, on the basis of the
information in the file and the information brought to its attention during the
proceedings before it, a failure to have regard to the material conditions
for such designation, set out in Annex I to that directive… [para 66]
Consequently,
and having regard to the case-law referred to in paragraphs 62 and 63 above,
the fact that a Member State has chosen to designate safe countries of origin
by means of a legislative act cannot be such as to preclude the national
court or tribunal seised in the circumstances set out in the preceding
paragraph of the present judgment from reviewing, even if only indirectly,
whether the designation of the third country in question as a safe country of
origin complies with the material conditions for such a designation, set
out in Annex I to Directive 2013/32. [para 67]
In the light
of the foregoing, the answer to the first questions is that Articles 36
and 37 and Article 46(3) of Directive 2013/32, read in the light of
Article 47 of the Charter, must be interpreted as not precluding a
Member State from designating third countries as safe countries of origin by
means of a legislative act, provided that that designation can be subject to
judicial review as regards compliance with the material conditions for such a
designation, set out in Annex I to that directive, by any national court
or tribunal hearing an action brought against a decision taken on an
application for international protection, which had been examined under the
special scheme applicable to applications lodged by applicants who are from
third countries designated as safe countries of origin. [para 68]
As the Charter has the same legal
value as the Treaties (Article 6 TEU), any EU law adopted in breach of it would
be invalid.
In any event, the litigation has
not stood still. There are further cases referred from the Italian courts as regards
aspects of the Italy/Albania arrangements, including Sedrata
on detention issues, and Comeri (fast-tracked
by the Court) on the external relations aspects of such arrangements. These pending
cases may limit the possible application of the Italy/Albania agreement in the
meantime, although it remains to be seen whether the changes to the law (including
the 2024 version of the reception
directive), might be relevant to the issues in these disputes post June. Of
course, further legal challenges can be expected as the 2024 Regulation is
partly rolled out early on the basis of the 2026 amendments, and applied fully
from June.
The removal of automatic suspensive
effect from ‘safe third country’ cases, while widening the scope of such cases
in principle, may mean that it is harder to obtain an effective remedy in such
cases – although the possibility of requesting suspensive effect from the
national court will now become crucial. The same will be true of cases where a
Member State is allegedly breaching the Charter rights of recognised refugees –
an issue separate from ‘safe third (non-EU) countries’ where the legislators
decided to carry out a ‘drive-by hit’ on appeal rights nonetheless.
As for the ‘Rwanda clause’
itself, at first sight it leaves open the possibility that (apart from unaccompanied
minors) literally everyone who applies for asylum in the EU could be removed
to such a country. In practice, though, this depends upon there being enough countries
willing to admit the asylum-seekers. The EU’s current and planned leverage (via
the visa
code, recent visa
waiver suspension rules, agreed amendments to trade
policy laws, proposed changes to development
aid and planned further
changes to the visa code) relates to countries taking back their own
citizens and those who transited through them. While the transit point is
relevant to the widening of the ‘safe third country’ concept to include transit
states, it does not cover the introduction of the Rwanda clause.
Even for those who are subject to
the wider application of the ‘safe third country’ principle after the 2026
amendments, it will still be necessary to show that they will be admitted to
the country concerned, and still possible to argue that the country is ‘unsafe’
in their particular situation. Moreover, it could be argued that – in parallel
with the CJEU case law on challenging the listing of ‘safe countries of origin’,
quoted from above – the EU Charter of Rights necessarily confers the possibility
of challenging the listing of the country in question itself, comparable to the
UK Supreme Court ruling
that Rwanda was ‘unsafe’ as such. And since the EU Charter has a higher legal status
than EU legislation, it would not be possible for the EU or its Member States
to overturn such a ruling merely by passing legislation – unlike the ‘Safety’ of Rwanda Act
passed under the previous UK government.
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