Pyrrhic victory for the Greek government: the CJEU rules on Turkey as a “safe third country”

Professor Steve Peers, Royal Holloway University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

Hamster idiom credit: Adam Sharp

(Thanks to Zoe Gardner for discussion of the case; the following analysis is my own)

 

Introduction

Remember the ‘refugee crisis’ of 2015-16? One part of the EU’s response to it was to negotiate a ‘joint statement’ with Turkey (see comments and criticism here, here and here) that, among other things, led to Turkey agreeing to take back asylum-seekers from the Greek islands. Greece facilitated the application of this process by determining that Turkey was a ‘safe third country’ (ie that asylum-seekers could and should have applied there instead, given that this other country is ‘safe’) under EU asylum law, initially for Syrian asylum-seekers in the eastern Greek islands. Faced with a legal challenge to this determination, the Greek Council of State ruled in 2017 that the determination was legal, deciding by a 13-12 vote not to ask the CJEU to interpret the issue of EU law at stake. For its part the EU General Court (upheld on appeal by the CJEU) rejected legal challenges to the joint statement, on the frankly bizarre ground that the European Council had nothing to do with the EU/Turkey joint statement (which referred to EU law issues such as visa waivers).

Subsequently in 2020, Turkey decided to refuse all readmission of asylum-seekers from Greece, stating that (as quoted in note 10 of the Advocate-General’s opinion):

 Responding to repeated requests from the Greek authorities and the European Commission regarding the resumption of return operations, [the Republic of Türkiye] has stated that no return operation would take place unless the alleged pushbacks along the Turkish-Greek border stop and [the Hellenic Republic] revokes its decision to consider [the Republic of Türkiye] a Safe Third Country.

Greece nevertheless decided to list Turkey as a ‘safe third country’ more broadly in 2021, for asylum-seekers from Syria, Afghanistan, Pakistan, Bangladesh or Somalia; it added Albania and North Macedonia to its ‘safe third country’ list soon afterwards. In light of the EU law rules on ‘safe third country’ (discussed further below), two NGOs (the Greek Council for Refugees and Refugee Support in the Aegean) decided to challenge the Greek government decision to list Turkey, resulting this time in the view of the Council of State in February 2023 (by an 18-4 vote) that the listing of Turkey was invalid, on the grounds that EU law precluded designating a country which refused to readmit asylum-seekers as a ‘safe third country’. (Other EU law arguments against the designation of Turkey were rejected by the national court and not referred to the CJEU: see the analysis by Minos Mouzourakis).  But unlike in 2017, there was great deference to the view of the (much smaller) minority (two judges apiece argued that the issue of readmission was relevant instead when ruling applications inadmissible, or when enforcing that decision). So the national court decided to ask the CJEU questions about the interpretation of EU law on the readmission point before giving its final ruling. The CJEU delivered its judgment last Friday.

This is not only the first time that the CJEU has been asked about an aspect of the EU/Turkey asylum relationship. Remarkably, despite the huge number of asylum seekers that have come to Greece over the last decade and more, this is also the first time that the CJEU has been asked any questions about EU asylum law by any Greek court.

 

EU legal framework

Legislation

The definition of ‘safe third country’ for the EU is currently set out in Article 38 of the EU’s asylum procedures Directive. (This is about the ‘safety’ of non-EU countries, ie it is distinct from the EU Member States regarding each other as ‘safe’ countries, under the Dublin rules) First, Article 38(1) provides that the (optional) ‘safe third country’ concept can ‘only’ be applied if Member States are satisfied that certain ‘principles’ are ensured for asylum-seekers in that country: (a) ‘life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion’; (b) ‘there is no risk of serious harm as defined in’ the EU qualification Directive; (c) ‘the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected’; (d)  ‘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 (e) ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

Secondly, Article 38(2) requires Member States to subject the application of the ‘safe third country’ rule to national law rules, including: (a) ‘requiring a connection between the applicant 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. Such methodology shall 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’; and (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 the third country is not safe in his or her particular circumstances’. Also, an asylum-seeker must ‘be allowed to challenge the existence of a connection between him or her and the third country’, as referred to in point (a).

Next, Article 38(3) requires Member States to inform the applicant that the principle is being applied to them, and also to give the asylum-seeker a document informing the supposedly ‘safe’ third country that the merits of their asylum claim have not been examined.

Crucially for this case, Article 38(4) then provides that:

Where the third country does not permit the applicant 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 Chapter II. [ie an ‘ordinary’ examination of the merits of an asylum claim]

Finally, Article 38(5) obliges Member States to inform the Commission of their use of the concept.

The practical relevance of applying the ‘safe third country’ notion is (among other things) that it is a ground of (optional) inadmissibility under Article 33 of the Directive. And if the case is inadmissible, the asylum application is not further considered on the merits and has failed in that Member State (subject to an appeal of the inadmissibility decision, or the limited prospect of a ‘repeat application’, discussed further below). The failed asylum-seeker can then deprived of support as an asylum seeker under the reception conditions Directive and detained and removed under the Returns Directive. Of course, the impact of this is in theory ameliorated in ‘safe third country’ cases because the supposedly ‘safe’ country will readmit the person concerned and consider their asylum application properly. In practice, as we have seen, Turkey was explicitly and unambiguously refusing to readmit asylum-seekers from Greece in the context of the ‘safe third country’ concept.

Case law

The CJEU had interpreted the ‘safe third country’ rule in some prior case law, all concerning Hungary. First of all, in Case C‑564/18 (paras 29-51 of the judgment), the CJEU confirmed that the grounds of inadmissibility listed in the Directive were exhaustive (‘only’), and ruled that a national law applying a ‘safe third country’ principle to non-EU States where the asylum-seeker ‘as not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed’ was not consistent with the requirements of Article 38(1) of the Directive, in particular because it omitted the ‘non-refoulement’ requirement. Moreover, mere transit through the non-EU country was not enough for there to be a ‘connection’ with that country as required by Article 38(2).

Next, the Court reiterated these points in its judgment in Joined Cases C-924/19 and C-925/19 PPU (paras 148-165); but questions about what happens when the non-EU State refuses to readmit the asylum-seekers – the issue since addressed in last week’s judgment – were ruled inadmissible (paras 166-174). However, the Advocate-General’s opinion in that case discusses the issue (paras 107-127), taking the view that the refusal of readmission is only relevant at the point of enforcement of a decision based on the principle.  

Finally, in Commission v Hungary (Case C‑821/19), along with ruling on the criminalisation of assistance to asylum seekers, the Court again reiterated that the Hungarian law breached Article 38(1) and (2) of the Directive. The existence of a (then) pending proposal to amend the Directive on this point (since adopted as part of the 2024 asylum pact – but without some of the changes originally proposed) was irrelevant in determining whether a Member State was in breach of EU law at the time of the alleged breach.

 

Greek practice

As noted above, Greece had listed Turkey as a ‘safe third country’ despite Turkey’s refusal to readmit anyone in that context. While the CJEU judgment says nothing about the practice of the authorities, and the Advocate-General’s opinion says little (paras 65-68 of the opinion), one can find rather more information at the bottom of the ivory tower, in the recent Pro-Asyl report on the ‘safe third country’ principle in Greece, and in the annual AIDA report on Greece (‘safe third country’ section).

The reports state that over 10,000 asylum claims have been found inadmissible on the basis of the Greek listing of Turkey as a ‘safe third country’, although around 12,000 asylum claims have been found admissible (in some cases because the asylum-seekers argued that Turkey had not allowed them to make an asylum claim, or due to past exposure to refoulement, ie return to an unsafe country, or because they lacked a sufficient ‘connection’ with Turkey, on the basis of the national law implementing Article 38(2) of the Directive). Also, the reports are highly critical of the conclusion that Turkey is ‘safe’ – although the recent CJEU judgment does not address this issue, because the national court did not ask the CJEU about it.

Like the Advocate-General’s opinion, the Pro-Asyl study reports that Greek authorities apply the readmission test at the point of enforcement of a ‘safe third country’ decision. When Turkey then refuses readmission, the Greek bodies refuse to withdraw their prior decisions, leaving asylum-seekers to make a ‘repeat application’. But there are delays in registering these applications, and the authorities often reject them because they do not believe that the refusal of readmission is a ‘new element or finding’ (as required for a repeat application to be admissible under the EU Directive). But at least some courts rule against detention in such cases, given that there is no reasonable prospect of return (as required by the Returns Directive).

 

The judgment

The CJEU’s judgment began by answering the first question referred by the national court, rephrasing it as asking ‘in essence, whether’ the ‘safe third country’ rule in the Directive, ‘read in the light of Article 18 of the Charter’ on the right to asylum, ‘must be interpreted as precluding legislation of a Member State classifying a third country as generally safe for certain categories of applicants for international protection where, despite the legal obligation to which it is subject, that third country has generally suspended the admission or readmission of those applicants to its territory and there is no foreseeable prospect of a change in that position’.

First, the Court reiterated its case law that the grounds for inadmissibility of asylum applications in the procedures Directive (including ‘safe third country’ as defined in the Directive) are ‘exhaustive’, ie the Member States cannot add more grounds of their own (such as a divergent national definition of ‘safe third country’). It pointed out that the EU law definition ‘is subject to compliance with the cumulative conditions laid down’ in Article 38 of the Directive, as summarised above. But as the national court had already ruled that Greek law complied with the basic principles in Article 38(1), the CJEU did not examine that point. But it summarised the requirements for national law set out in Article 38(2) and the information obligations in Article 38(3), then recalled the Article 38(4) rule that ‘where the third country concerned does not permit the applicant for international protection to enter its territory, the Member States are to ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II of that directive’.

In the CJEU’s view, it followed from this first from the wording of the Directive that a Member State can designate a country as ‘generally safe’ by ‘an act of general application’. The references to national law in Article 38(2) referred to such a designation, as did the preamble to the Directive. Also, the Directive did not make the validity of such a general act ‘subject to the condition that it be proved that the applicants for international protection concerned will actually be admitted or readmitted to the territory of that third country’. This was not among the national law rules in Article 38(2); and the wording of Article 38(4) implied that the designation of the third country as ‘safe’ preceded the consideration of the issue of whether that country actually readmitted asylum seekers.

The CJEU also believed that this followed from the context of the Directive, in particular by comparison with the wording of the rules on ‘first country of asylum’ (ie where the asylum seeker already had protection, as distinct from where they could have sought it) on the readmission issue.

Finally, in the CJEU’s view, this interpretation also did not conflict with the objective of the Directive, as set out in the preamble, that in the interests of asylum-seekers in particular, asylum applications ‘should be made as soon as possible, without prejudice to an adequate and complete examination being carried out’. This objective was addressed by Article 38(4), requiring that a Member State ‘ensure’ access to an asylum decision on the merits, in accordance with the usual rules, if the ‘safe third country’ refused readmission. And then a key point:

54      It follows that, where it is established that the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of Directive 2013/32. Furthermore, that Member State may not unjustifiably postpone the examination of those applications and must, inter alia, ensure that that examination is conducted on an individual basis, in accordance with Article 10(3)(a) of that directive and in compliance with the time limits set out in Article 31 thereof.

This interpretation, in the Court’s view, ‘is likewise not such as to deprive of any practical effect the right of an applicant for international protection, as enshrined in Article 18 of the Charter and given specific expression by that directive, to obtain the status of beneficiary of international protection, provided that the conditions required by EU law are met.

Having ruled, in effect, that the designation of Turkey was valid, the CJEU felt it was unnecessary to answer the second and third questions referred by the national court, on whether the refusal of readmission was a factor to be considered at the admissibility or the enforcement stage. But as we have seen, the Court had already de facto answered the second question: if it is ‘established’ that the ‘safe’ third country ‘does not in fact’ readmit the asylum seekers concerned, a Member State ‘cannot’ find their applications admissible, and must consider those applications on the merits (moreover, without ‘unjustifiable’ postponement, and subject to the deadlines in the Directive). And that renders the third question moot.

 

Comments

Greece can have a dog; but it will be wagged by its Turkish tail. That is the effect of the Court’s judgment: in more technical legal language, Turkey can remain on Greece’s ‘safe third country’ list, but the practical impact of this is zero as long as Turkey refuses to readmit asylum-seekers from Greece, because asylum applications cannot be found inadmissible on this ground. The wheel of designation of Turkey as a ‘safe third country’ keeps spinning, but the hamster of inadmissibility of asylum applications is dead. Let’s unpack this further, examining first the reasoning of the judgment and then its potential consequences.  

Judicial reasoning

The CJEU begins by, with respect, answering a ‘straw man’ question that it had not been asked.  The national court did not ask the CJEU if it was possible to designate ‘safe third countries’ at all; rather it asked if those countries could be designated if they failed to readmit asylum-seekers. The references to common principles on ‘safe third countries’ in the preamble to the Directive do not answer the question as to what those common principles are; a rule that failure to readmit precludes listing a country would be a ‘common principle’ too. However, the Court’s points that Article 38(2) on national law and (especially) Article 38(4) on readmission presume that the country concerned is already on a list are more convincing.

Most importantly, the Court’s finding that applications cannot be inadmissible on ‘safe third country’ grounds where the country concerned refuses to readmit, requiring a Member State to consider the merits of such applications, is particularly convincing.  Given that between Greece and Turkey the readmission will not take place, and in light of the evidence that repeat applications are difficult to make and are often rejected, this is the best way to ensure that the obligations set out in Article 38(4), coupled with the principle of considering applications as soon as possible, are met.

Unlike some judgments, this is not so much a ‘liberal’ or ‘activist’ interpretation of EU asylum law by the CJEU, but rather the overdue termination of conservative activism by the Greek authorities and lower courts. In light of the clear obligation in Article 38(4) to consider the merits of an asylum application if the asylum seeker is not readmitted to a ‘safe third country’, in the context of the absolute refusal of Turkey to readmit, the failure of the authorities to consider the merits of many of those applications, and of the courts to require them to do so, is unjustifiable and frankly shocking.

Consequences in practice

First and foremost, what happens to the 10,000 plus asylum seekers whose applications were already rejected as inadmissible? As noted above, some had previously tried to make repeat applications, but faced the difficulty that they had to invoke ‘new elements or findings’ in order to do so, which was often difficult to do. But their ability to invoke the ‘repeat applications’ clause in the Directive has now, as a consequence purely of the Court of Justice’s recent judgment, undergone a Copernican revolution. This is because the CJEU has previously ruled (see Joined Cases C-924/19 and C-925/19 PPU, paras 175-203, confirmed in Case C-216/22) that its own judgments on EU asylum law are a new element or finding in filing a repeat application, where those judgments are relevant and add significantly to the likelihood of an asylum application being successful. For those asylum-seekers whose application was found inadmissible on ‘safe third country’ grounds despite Turkey’s refusal to readmit them, last week’s judgment is obviously highly relevant; and overturning the finding that their applications were inadmissible equally obviously significantly increases the odds that their application will be successful. (Moreover, the judgment in Joined Cases C-924/19 and C-925/19 PPU is especially relevant by analogy here, since the prior national judgments which conflicted with a later CJEU judgment in that case also concerned an unlawful application of the ‘safe third country’ rules).

Therefore, if the rejected asylum-seekers apply again, the Greek asylum system will now have to decide on the merits of thousands of asylum applications that it wrongly ruled were inadmissible in the first place. A pending CJEU case referred from Ireland may be relevant by analogy in establishing whether Greece has to pay damages too. Finally, if any Afghan women asylum-seekers were among those whose applications were considered inadmissible, they can also rely on another CJEU judgment from the same day (discussed here) as a ‘new element or finding’, supporting the merits and fast-tracking of their gender-based persecution claims.

As for current or future applicants, their applications cannot be rejected as inadmissible on the grounds that Turkey is a 'safe third country' at all. Nor can they be rejected on the grounds that Turkey is a ‘first country of asylum’ for them: without even looking at the substance of that concept, the CJEU judgment explicitly stated that this principle cannot even get off the ground if the country concerned will not readmit the asylum seeker.

What about applicants after the asylum pact takes effect? The Court of Justice judgment from last week only mentions the new asylum procedures Regulation (discussed here) in passing, but as the Advocate-General’s opinion pointed out (in para 64), the interpretation of the Directive ultimately followed by the Court is explicitly set out in the Regulation, now being built into the definition of inadmissibility – also as regards the ‘first country of asylum’ principle (these grounds of inadmissibility can be invoked for either principle ‘unless it is clear that the applicant will not be admitted or readmitted to that country’). (See also recital 53 in the preamble to the Regulation). Whether the planned review of the ‘safe third country’ rules in the Regulation in 2025 affects these issues remains to be seen.

Finally, the Court’s judgment understandably only dealt with situations where the refusal of readmission is certain at the time of considering the possible application of the ‘safe third country’ rule. It did not deal with the scenario where refusal was merely a possibility – as that was hypothetical on the facts. How should such cases be dealt with?

The starting point is that the current Directive (recital 44 in the preamble) implies the possibility of an inadmissibility decision in that scenario: Member States do not have to examine the merits of an application where ‘there are grounds for considering that the applicant will be admitted or readmitted to that [‘safe’ third] country’. The inadmissibility rule in the new Regulation points in the same direction: it can’t be applied if ‘it is clear that’ readmission is not going to happen (see also recital 43 in the preamble to the Regulation). But this implies that the inadmissibility rule can be applied if it is not clear that readmission is ruled out. On the other hand, the recent judgment points to the importance of deciding on applications as soon as possible, without unjustifiable postponements, while ensuring the application of the Charter right to asylum. How best to reconcile the possibility of the adoption of inadmissibility decisions with the need to take decisions speedily and afford an effective prospect of having an asylum application decided on the merits, if there is uncertainty about whether readmission will actually take place?

The 2024 procedures Regulation already expressly provides (in recital 53 in the preamble) that access to the Member State’s asylum system must be offered again if readmission does not take place:

…if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation

How should that principle apply in concrete terms? The best approach is to infer an obligation upon the Member State to act with due diligence to attempt to secure the readmission, starting as soon as it takes the inadmissibility decision (after any appeals, or the prospect of appeals, against that decision are spent). From that point, the Member State should have a reasonable time frame to request readmission from the non-EU country concerned. By analogy with the procedures Regulation time limit for deciding on inadmissibility, two months should be sufficient. If the non-EU country refuses readmission, or does not reply within the time limit set out in the readmission arrangements in force, or accepts readmission in principle but does not carry it out in practice within the relevant time limit, then the Member State’s obligation to consider the application on the merits where readmission does not take place must be triggered. Procedurally either the inadmissibility decision must be considered as withdrawn from that point (it makes sense to consider it as only provisional until readmission is actually carried out), or a repeat application must be considered – the requirement of new developments being satisfied by the inability, subsequent to the inadmissibility decision, to ensure readmission in practice within a reasonable time frame. The inadmissibility decision was based on the presumption that readmission would be secured within a reasonable period; that presumption has since been rebutted.

The final word on the impact of last week’s judgment should go to the asylum NGOs who brought the case:

…the CJEU’s judgment is of major importance because it overturns an arbitrary and abusive practice of the Greek authorities which has been in force for many years, of wholesale rejecting asylum applications as inadmissible under the safe third country principle, and puts an end to the denial of the rights of thousands of applicants, by prohibiting their rejection when there is no possibility of their readmission to Türkiye and dictating their individual examination in accordance with the Directive.