‘Safe countries of origin’ in asylum law: the CJEU first interprets the concept

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: viewsridge, via Wikimedia commons

 

Introduction

Along with judgments on Afghan women asylum seekers (discussed here) and the status of Turkey as a ‘safe third country’ (discussed here), the Court of Justice of the European Union recently gave its first judgment interpreting the substance of the concept of ‘safe countries of origin’ in EU law. The judgment addressed a number of important points, interpreting the law in ways that may have broad relevance to EU law on asylum procedures going forward.

EU legal framework

Previous rules

The concept of ‘safe countries of origin’ goes back, at EU-wide level, initially to ‘soft law’ adopted in the early 1990s (one of the ‘London Resolutions’ of 1992). Next, the principle first took on binding legal form at EU level in the first-phase 2005 asylum procedures Directive, which provided for an option for Member States to accelerate considering asylum applications (albeit in accordance with the usual procedural rules), inter alia where the applicant is from a ‘safe country of origin’. The latter concept was then further defined: it applied to countries (as described in Annex II to the Directive) where:  

on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC [the first-phase qualification Directive], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

When ‘making this assessment’, Member States had to take account, ‘inter alia, of the extent to which protection is provided against persecution or mistreatment by’:

	- the relevant laws and regulations of the country and the manner in which they are applied;
	- observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;
	- respect of the non-refoulement principle according to the Geneva Convention;
	- provision for a system of effective remedies against violations of these rights and freedoms.

When applying these tests, Member States had to ‘have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned’, and the ‘assessment of whether a country is a safe country of origin’ had to ‘be based on a range of sources of information, including in particular information from other Member States, the UNHCR, the Council of Europe and other relevant international organisations’.

Furthermore, the Directive expressly provided that Member States could designate ‘part of a country as safe where the conditions in Annex II are fulfilled in relation to that part’. It was also open to Member States to continue in place pre-existing rules that fell short of the standards in the Directive to some extent; these rules could also be applied to part of a country, or to designate a country (or part of it) ‘as safe for a specified group of persons’. There were safeguards for individuals: for the ‘safe country of origin’ concept to apply, they would have to be nationals of the country concerned (or stateless persons who were habitual residents of it), and must not have ‘submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee in accordance with’ the qualification Directive. Also, Member States were obliged to ‘lay down in national legislation further rules and modalities for the application of the safe country of origin concept’ – although there was no indication of what those rules and modalities might concern.

Finally, there was a power for the EU to adopt common lists of ‘safe countries of origin’, by means of a special procedure. But this power was soon annulled by the CJEU, when the European Parliament successfully challenged the prospect of using such a special procedure.

Current rules

The current asylum procedures Directive, adopted in 2013, retains the ‘safe countries of origin’ concept as an option for Member States to apply an accelerated procedure to. There is no longer a reference to potentially treating only part of a country as safe, and the option for Member States to retain pre-existing lower standards on this issue (along with pre-existing rules on designating part of a country as ‘safe’, or as ‘safe’ for groups of people) was dropped. The notion of a common EU list was not revived in the Directive; although the Commission subsequently proposed such a list (consisting of Western Balkans states and Turkey) in 2015, that proposal did not receive enough support and was withdrawn in 2019. An express requirement for regular review of the supposedly ‘safe countries of origin’ by Member States has been added. Otherwise the rules on ‘safe country of origin’, including the core definition of the concept, were not amended.

However, the rules on appeals, elaborated compared to the previous Directive, now address the issue too. Although the 2013 Directive provides that in principle asylum-seekers can remain on the territory pending resolution of their appeal, there is an exception for (inter alia) most accelerated procedures, including the ‘safe country of origin’ rule. In such cases Member States, if they opt not to give an appeal suspensive effect, must at least allow a court to rule on whether or not the asylum-seeker can stay pending the appeal; and the asylum-seeker can at least stay until a court has ruled on this point.

Before the recent judgment, the CJEU has only ruled on these provisions once, and on a purely procedural point: according to the Court, Sweden could not apply a ‘safe country of origin’ rule until it legislated for one in national law. Sweden duly did so. In passing, the Court confirmed the usual understanding that the ‘safe country of origin’ rules set out a ‘rebuttable presumption’.  

Future rules

The 2024 asylum procedures Regulation has amended the ‘safe country of origin’ rules again. This entails: explaining the concept of ‘non-refoulement’; confirming that rebuttal of the presumption by an asylum-seeker must take place ‘in the framework of an individual assessment’; again expressly providing for exceptions for ‘specific parts’ of the non-EU country’s territory and (not only in the context of pre-existing law) for ‘clearly identifiable categories of persons’; and again allowing for the adoption of a common EU list (this time not via a special procedure, so not repeating the previous legal problem with the concept of such a list). There is no longer any reference to national rules providing for further ‘rules and modalities’ of the concept.

In the broader context, the ‘safe country of origin’ concept is still on the list of possible accelerated procedures, but the use of those procedures will now be mandatory for Member States. In practice the concept might cross over sometimes with the new ground of accelerated procedures where the country of origin has an international protection recognition rate below 20%. It will be expressly possible (although arguably it will only be optional) to apply this ground for accelerated procedures to unaccompanied minors. The implications of accelerated procedures are more explicitly harmonised: three months (instead of the usual six months) to decide on the application, and between five and ten days (instead of the usual two weeks to a month) to bring an appeal. The exception to the right to remain pending appeal (subject to a court ruling otherwise) in such cases becomes mandatory, with some harmonised rules added: a time limit of at least five days to request a court to remain on the territory, along with interpretation and legal aid. As before, accelerated procedures are linked to the rules on a border procedure, which have also been heavily amended.    

National practice

The EU asylum agency has produced a useful map of which countries have been designated as ‘safe countries of origin’ (and ‘safe third countries’) by Member States. Furthermore the agency reported on the national application of these concepts at the end of 2022. As regards ‘safe country of origin’, the report indicates that a large majority (although not quite all) Member States apply the concept. The exceptions are Poland, Latvia, Spain, Bulgaria, Lithuania, Portugal and Romania; Finland applies the concept, but without a list.

Several Member States apply geographic exceptions, namely for parts of Armenia, Bosnia and Herzegovina, Georgia, Moldova, the USA and India. Some Member States also apply exceptions for groups of people, in particular LGBT applicants, minorities, criminal cases, political activists, journalists, human rights defenders, victims of discrimination or forced marriage, and women and girls. There is some variation in which countries are listed as ‘safe’, with Western Balkans states being listed most frequently. The report details a number of judgments of national courts concerning both the listing of particular countries and their application to individual circumstances, with mixed results – some judgments uphold the listing or its application to an individual asylum-seeker, but some do not. The recent CJEU judgment is, as we shall see, relevant to the geographic exceptions; and a pending case asks the CJEU about the exceptions for groups of people.   

The judgment

The recent judgment concerned the Czech designation of part of Moldova (except the Russian-occupied Transnistria) as ‘safe’. Faced with an appeal by a Moldovan asylum seeker who was subjected to a ‘safe country of origin’ rule, the national court asked three questions: a) could a country be designated a ‘safe country of origin’ even if it had triggered the derogation from (some) ECHR rights set out in Article 15 ECHR (which Moldova had done after the Russian invasion of neighbouring Ukraine)?; b) could only part of a country be designated as ‘safe’; and c) could a national court raise the legality of the designation of its own motion?

On the first point, the Court ruled that invoking Article 15 ECHR did not automatically prevent or cancel the designation of a country as a ‘safe country of origin’. This was because the ECHR set out guarantees for use of the derogation in Article 15, limiting its use to cases where it was necessary, requiring no conflict with other international law, allowing derogations only from certain rights and remaining subject to review by the European Court of Human Rights. (On the relevant case law, see that Court’s guide to Article 15). Also, it could not necessarily be assumed that invoking Article 15 meant that rights were actually derogated from; nor did use of the derogation as such determine the nature and extent of the derogation.

However, the CJEU pointed out that triggering an Article 15 ECHR derogation must mean that Member States had to review the ‘safe country of origin’ listing, on the basis of the obligation to review the designations in light of developments set out in the Directive. That review should be triggered by significant events likely to affect whether a non-EU country still meets the ‘safe country of origin’ criteria, which include the invocation of a derogation from the ECHR – even though the derogation would affect rights other than Article 3 ECHR (the ban on torture or other inhuman or degrading treatment), because Article 15 ECHR does not allow derogation from Article 3.

The Court did not address the arguments in the Advocate-General’s opinion, concerning the protocol on asylum for EU citizens by analogy. That protocol provides that EU Member States are ‘safe countries of origin’ for each other’s citizens, meaning (in the context of the protocol) that asylum applications from EU citizens cannot be considered at all – unless a Member State either: invokes a derogation under Article 15 ECHR; or the Article 7 TEU process of either sanctioning a Member State for a ‘serious and persistent breach’ of EU values, or warning a Member State that there is a ‘clear risk of a serious breach’ of such values, has been applied (or triggered, as regards a warning; on this point, see the Hungary v European Parliament judgment); or a Member State decides to do so unilaterally for an individual applicant. In the Advocate-General’s view, the protocol could not apply by analogy due to its different context: an expression of mutual trust applicable to EU citizens only.

On the second question – whether a non-EU country could be designated as a ‘safe country or origin’ only in part – the Court first looked at the wording of the Directive, which used the word ‘country’ without indicating that it may be referring to only part of the territory. Secondly, the context of the Directive included the definition of ‘safe country of origin’ in the Annex; that definition did not suggest either that only part of a country could be designated, and the words ‘generally and uniformly’ suggested the opposite.

Next, the ‘safe country of origin’ rule was an ‘exception’ to the normal process of considering asylum applications, and such derogations should have a ‘strict interpretation’ (referring to the case law on inadmissible applications), notably where an interpretation had no support from the text. Also, the Court looked at the historical context, noting that: the 2005 Directive expressly provided for parts of countries to be listed; the 2013 Directive does not; and the proposal for what became the 2013 Directive explicitly stated an intention to remove the possibility. Finally, the Court referred to the objectives of the asylum procedures Directive, taking the view that the EU legislature was trying to balance the objectives of a speedy versus a thorough assessment of asylum applications. This was a discretionary choice that was reversed by the 2024 Regulation; a change of mind was the prerogative of the EU legislature, provided that it complied with the Refugee Convention and the Charter. And the wording of the 2024 Regulation reinforced the point that designation of only part of a country was not provided for in the 2013 Directive.  

Again the Court’s judgment does not discuss a point analysed by the Advocate-General – as to whether the ‘effective territorial control’ principle, which limits the liability of countries (including Moldova, in this context) for breaches of the ECHR on their territory controlled by another State, applies in the context of EU asylum law to allow for the designation of only part of their territory as ‘safe’. In the Advocate-General’s view, the issue of state liability for breaches of international law is distinct from the issue of the listing of ‘safe country of origin’ under EU asylum law; and the EU legislature decided to provide for listing of whole countries only, even being aware of the ‘effective territorial control’ issue.

On the third point – consideration of the designation of ‘safe country of origin’ by a court on appeal, of its own motion – the CJEU ruled that, taking account of its prior case law giving a strong role to courts reviewing asylum decisions, including on procedural issues, such designations have to be reviewed by courts of their own motion even if the asylum applicant does not raise the point. In particular, the courts have to review the invocation of derogations from the ECHR and the territorial scope of the ‘safe country of origin’ designation. Again, the Court did not address an issue raised by the Advocate-General – the analysis, in the alternative, of how the EU law principle of equal and effective remedies would apply in a case like this one.

Comments

The Court’s judgment raises a number of points that could be relevant to EU asylum procedures law more generally. On the first point (the ECHR derogation), the ruling at first sight may only apply to ECHR parties; but logically it applies by analogy also to any derogations from other human rights treaties (including the ICCPR, which is expressly mentioned in the Directive), and/or from national human rights protection – taking into account any relevant differences from the ECHR (the prospects of effective judicial review of the derogation, and the particular rights being derogated from, which were key features of the Court’s judgment). After all, human rights abuses (triggering asylum claims) often take place during supposed states of emergency. 

The judgment also makes clear that reviews of ‘safety’ must be triggered by significant events – not only, as Member States might prefer, taking place at regular prescheduled intervals. It follows that a failure to conduct a review in light of a significant event is a procedural flaw that can be challenged. Moreover, this judgment should logically apply by analogy to the reviews of the EU common list provided for in the asylum pact Regulation – as well as to national and EU reviews of ‘safe third countries’.  

As for the dog that didn’t bark – the comparison with the protocol on asylum for EU citizens – the better argument than in the Advocate-General’s opinion is surely that in addition to the obvious difference in wording, the context of the Directive is hugely different too. Although the protocol uses the phrase ‘safe countries of origin’, unlike the Directive it does not create a rebuttable presumption, but rather a complete ban on considering applications (in principle) from EU citizens; so it makes sense that the conditions for applying the protocol are more stringent, since the key safeguard of the possibility of the individual right to attempt to rebut the presumption is absent.

On the second point – the inability to label part of a country as ‘safe’ – as we can see from the practice above, this would mean changes in a number of Member States. Of course, this is only short term, because the asylum pact legislation will soon allow such designations again. But the Court’s express reference to the new Regulation may give us a broader indication of how it will interpret the pact. It suggests that while the EU legislature has a discretion to choose between prioritising speedy or thorough consideration of applications, that choice must comply with the Charter and the Refugee Convention. Given the reduction in standards in the Regulation – and the further reductions in standards that the Commission and many Member States seem to be gagging to make as soon as possible – the Court’s assessment of whether EU asylum law indeed complies with the Charter and the Refugee Convention is likely to be of increasing importance in the future.

This part of the judgment also confirms that the concept of ‘safe country of origin’ is an exception which must be interpreted strictly, by analogy with the case law on inadmissibility which often finds that Member States’ interpretations of the grounds for inadmissibility have been too restrictive. This logically applies by analogy to all grounds for accelerated procedures, a fortiori after they become mandatory under the 2024 asylum pact.

Finally, the third point – judicial review of the ‘safe country of origin’ designation, on its own initiative – logically applies by analogy too, to other aspects of the principle besides those at issue in this case, and to listings of ‘safe third countries’ also. Although strengthening judicial review may have limited effect in such cases, given the absence of suspensive effect of appeals, confirming the wider power of courts to examine the validity of designating countries in the list on their own motion may make it easier to convince them to grant such suspensive effect, given the wider array of remedies which an applicant can therefore seek.