Professor Steve Peers, Royal Holloway University of London
Photo credit: Home Office,
via Wikimedia
Commons – the former Home Secretary meets Rwanda’s foreign minister
Introduction
An unlawful attempt to remove
asylum-seekers to an unsafe country that they had no connection with, in breach
of basic human rights – as confirmed by the Supreme Court. A
desperate attempt to overturn the Supreme Court ruling by an Act of Parliament
(the ‘Safety’ of Rwanda
Act), declaring the dodgy country to be ‘safe’, regardless of reality. Ultimately,
the cancellation of the policy by a new government, the previous government
having squandered hundreds
of millions of pounds on its unlawful obsession.
The flaws with the UK’s Rwanda
policy were so huge, they must have been visible from outer space. But were
they visible to the European Union?
Yesterday’s proposal
from the EU Commission to amend EU asylum law would provide, in effect, for the
development of a form of Euro-Rwanda policy, by widening the concept of ‘safe
third country’ to include countries that asylum-seekers have no link with
whatsoever. We don’t know yet whether EU Member States and the European Parliament
will agree to it, but even tabling the proposal raises fundamental questions.
Has the EU learned the lessons of the UK’s failed policy? Or is it poised to
follow the previous UK government, lemming-like, by leaping into the same
financial, legal and moral abyss?
EU legal framework
Current 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). It’s only an option for Member States to apply these rules, not a
requirement; the Commission’s staff
working document alongside the new proposal details which Member
States use the concept, and how they use it.
First, Article 38(1) defines
what makes a country ‘safe’. The ‘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’. According
to the CJEU, Hungarian law breached the Directive, as it did not set out these
guarantees fully (Cases C‑564/18,
paras 29-51 of the judgment; Joined Cases C-924/19 and
C-925/19 PPU, paras 148-165; and Case C‑821/19).
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). According to the CJEU in the cases mentioned above, mere
transit through a country was not sufficient to create a ‘connection’.
Next, Article 38(4) addresses
what happens if the supposedly ‘safe’ country does not readmit the asylum-seeker:
Where the
third country does not permit the applicant to enter its territory, Member
States shall ensure that access to [the asylum] 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]
Interpreting this guarantee, last
year the
CJEU ruled that asylum applications could not be found inadmissible where
the supposedly ‘safe’ country was refusing to readmit the asylum-seekers.
There are also special rules for unaccompanied
minors: Article 25(6) of the Directive permits Member States to apply the
current version of the special border procedure to unaccompanied minors in ‘safe
third countries’ cases (among others); but in any case, they may only apply the
‘safe third country’ rule to unaccompanied minors if that is ‘in the minor’s
best interests’.
The practical relevance of
applying the ‘safe third country’ notion in the current law is (among other
things) that it is a ground of 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, which has suspensive effect in ‘safe third
countries’ cases). If any appeal fails, 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 – although this
does not always happen in practice. ‘Safe third country’ cases can also be
dealt with in the current version of the special border procedure, subject to
further conditions.
Future rules: the asylum pact
The ‘safe third country’ rule in
EU asylum law is already set to be amended once the asylum
procedures Regulation, which is a major part of the asylum pact, becomes
applicable, to applications made from June 2026. Yesterday’s proposal would
amend that asylum pact law, but we can only understand the proposal’s impact in
light of what the asylum pact law provides for.
First of all, although the 2024
Regulation overall entails more harmonisation of national law on asylum procedure,
it leaves the ‘safe third country’ rule optional for Member
States.
Secondly, Article 59(1) of that
Regulation retains essentially the same definition as in the current Directive
about the ‘safety’ of the country concerned, except that there is no
longer a requirement that the country ensure the possibility of obtaining status
under the Refugee Convention; it is sufficient that the asylum-seeker could
seek ‘effective protection’ as further defined in the Regulation (Article 57):
this means that either the Refugee Convention applies, or at least the person
concerned has the chance to remain on the territory with subsistence support,
health-care, education and ‘effective protection’ until a ‘durable solution’ is
found.
The preamble clarifies the
meaning of ‘effective protection’:
access to
means of subsistence sufficient to maintain an adequate standard of living
should be understood as including access to food, clothing, housing or shelter
and the right to engage in gainful employment, for example through access to
the labour market, under conditions not less favourable than those for
non-nationals of the third country generally in the same circumstances.
Next, in place of a reference to
national law as regards the methodology of defining ‘safe third
countries’, there is a standard rule (Article 59(3)):
The assessment
of whether a third country may be designated as a safe third country in
accordance with this Regulation shall be based on a range of relevant and
available sources of information, including information from Member States, the
Asylum Agency, the European External Action Service, the United Nations High
Commissioner for Refugees, the Council of Europe and other relevant
international organisations.
The application of the ‘safe third
country’ rule is still limited by the requirement of an individual examination
and showing a connection with the country, ie it ‘may only be applied
provided that’ (Article 59(5)):
a)
the applicant cannot provide elements justifying
why the concept of safe third country is not applicable to him or her, in the
framework of an individual assessment;
b)
there is 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.
As regards a ‘connection’, the preamble
states that:
The 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.
Furthermore, the preamble goes on
to state that the ‘safe third country’ principle should not be applied to
anyone with rights under EU free movement law, or the EU’s family reunion
Directive.
The applicant must still be given
access to the procedure if the supposedly ‘safe’ country does not admit or
readmit them (Article 59(9); Article 38(1)(b) likewise says that the
application cannot be inadmissible on ‘safe third country’ grounds, if ‘it is
clear that’ they will not be admitted or readmitted to that country’). The
current information and documentation requirements are maintained (Article 59(8)).
As for unaccompanied minors,
they are still not exempted from ‘safe third country’ rules, but there are additional
conditions before the rule can apply to them (Article 58(6)):
A third
country may only be considered to be a safe third country for an unaccompanied
minor where it is not contrary to his or her best interests and where the
authorities of Member States have first received from the authorities of the
third country in question the assurance that the unaccompanied minor will be
taken in charge by those authorities and that he or she will immediately have
access to effective protection as defined in Article 57.
The preamble states that when
considering applying the rule to unaccompanied minors, authorities should ‘in
particular’ examine ‘the availability of sustainable appropriate care and
custodial arrangements’. Interpreting a similar provision in the Returns
Directive, the CJEU
has ruled that unaccompanied minors cannot be removed unless these guarantees
are provided for. Moreover, it should be noted that under the asylum pact it
will not be possible to subject unaccompanied minors to the new version
of the borders procedure on ‘safe third country’ grounds.
In addition to retaining or amending
the existing ‘safe third country’ rules, there are several new relevant elements
in the asylum procedures Regulation. First of all, Article 59(2) now provides
that a non-EU country can be designated as ‘safe…with exceptions for
specific parts of its territory or clearly identifiable categories of persons’.
On this point, the CJEU has recently
confirmed that, as regards the principle of ‘safe countries of origin’,
the current law does not allow exceptions for parts of a country; conversely an
Advocate-General’s opinion
in a pending case (Alace) argues that the current law does allow
for that principle to apply with exceptions for groups of people. We do not yet
have a judgment in the latter case; but presumably the interpretation in the
former judgment (and the latter judgment, when we have it) applies by analogy
to the ‘safe third country’ rule. So to allow Member States to use these
exceptions already as regards both ‘safe country’ rules, the Commission has separately
already proposed
the early application of these provisions of the Regulation. It remains to
be seen if this proposal is agreed. The asylum procedures Regulation also allows
the ‘safe third country’ rule to be applied to an individual applicant
(Article 59(4)(b)); the Commission has not proposed to apply this bizarre rule
early.
Next, the Regulation now provides
that the EU and a particular non-EU country can agree a treaty which provides
that ‘migrants admitted under that agreement will be protected in accordance
with the relevant international standards and in full respect of the principle
of non-refoulement’. In that case the existence of a ‘safe third country’ will
be presumed – but this is ‘without prejudice’ to the guarantees for
unaccompanied minors, a ‘connection’ requirement and an individual examination.
It will also be possible to have
a common EU list of ‘safe third countries’, adopted by means of a further
legislative amendment (Article 60); but removals of countries from that common
list due to changes in circumstances can be fast-tracked (Article 63), and such
removals from the list will limit Member States from designating that country as
‘safe’ for two years (Article 64).
As for the broader impact of the ‘safe
third country’ rule in the asylum pact, such applications remain inadmissible;
but the 2024 Regulation now specifies a time limit to make decisions on inadmissible
cases (two months). Appeals in ‘safe third country’ cases still have suspensive
effect. The revised version of the special border procedure (including a new deadline
to decide on applications within 12 weeks, including appeals) will apply to ‘safe
third country’ cases (except for unaccompanied minors, as noted already); and
the asylum pact explicitly provides that being subject to the border procedure
is a ground for detention.
The new proposal
When negotiating the asylum
procedures Regulation, the more liberal MEPs fought off attempts to make the ‘safe
third country’ rules broader – but there was a catch. The trade-off was a clause
providing for a review of these rules by June 2025, by which point the European
Parliament had moved to the right after its 2024 election. Hence yesterday’s (slightly
early) proposal.
The new proposal will not apply
to Denmark (so Denmark’s own Rwanda policy is irrelevant). Ireland can choose
whether to opt in or out; for Ireland, the proposal is particularly relevant to
its designation
of the UK as a ‘safe third country’.
As for the content, first of all,
the proposal leaves a number of provisions of the asylum pact ‘safe third
country’ rules unchanged. The principle is still optional for Member States;
there are no changes to the definition of ‘safety’; the procedure to designate
countries as ‘safe’ is the same; there must still be an individual examination;
the rule still cannot be applied if the country concerned will not admit or
readmit the asylum-seeker; the conditions for applying the rule to unaccompanied
minors still apply; there are still possible exceptions for parts of a country
or groups of people; the rule can still be targeted on individuals; there is
still a possibility for treaties between the EU and non-EU countries and for a
common EU list (the Commission has not proposed to use either clause); and the
rules on inadmissibility and border procedures still apply.
However, there are two changes to
the rules. The first change is to add to the ‘connection’ criterion for
designation. A country could also be designated as ‘safe’ if:
-
the applicant has transited through the third
country concerned; or
-
there is an agreement or an arrangement with the
third country concerned requiring the examination of the merits of the requests
for effective protection made by applicants subject to that agreement or
arrangement
Further provisions on unaccompanied
minors would specify that when applying any of these conditions (including
the ‘connection’ clause) ‘the best interests of the child shall be a primary
consideration’. This adds nothing to the ‘best interests’ clause already in
Article 58(6). But more concretely, the proposal exempts unaccompanied minors
from the possibility of being sent to a country that they neither have a connection
with nor transited through. Although this does leave the new prospect of
sending an unaccompanied minor to a country that they have only transited through,
this new possibility will be subject to the safeguard in the 2024 Regulation of
an ‘assurance that the unaccompanied minor will be taken in charge by those
authorities and that he or she will immediately have access to effective
protection’.
The proposal requires Member States
to inform the Commission and other Member States about arrangements or
agreements they enter into; it is not clear whether such an agreement or arrangement
could be negotiated with the EU as a whole, or how it might relate to countries
which the EU might sign with non-EU countries, referred to in Article 58(7).
The second change is to drop
the requirement of suspensive effect of appeals in ‘safe third country’ cases.
This would still leave asylum-seekers in such cases with a fallback guarantee:
the Regulation states that for appeals without suspensive effect, there must
still be at least five days for an asylum-seeker to request a court to grant
suspensive effect. The asylum-seeker cannot be removed during that grace period,
or pending the court’s decision on such a request.
Although, as noted already, the
proposal would not change the rules on inadmissibility or border procedures, it
would mean that a greater percentage of asylum-seekers might fall within the
scope of such rules, given the additional scope to apply the ‘safe third
country’ principle.
Comments
In addition to adding a transit
criterion to the ‘safe third country’ rule, which would particularly important
to the EU’s near neighbours (including the UK, given that asylum-seekers sometimes
transit the UK on the way to Ireland), the proposal would add a fully-fledged ‘Rwanda
clause’ to EU asylum law: asylum-seekers could be sent to a country which they neither
have a connection with nor have transited to.
The text of the proposal
encompasses both versions of the previous UK government’s Rwanda policy: ‘agreement
or an arrangement’ covers both the treaty
which the UK and Rwanda agreed after the Supreme Court struck the policy down,
and the more informal arrangements agreed before that.
On the other hand, unlike the UK’s
Rwanda policy, there is no rule in EU law that the applications from asylum-seekers
who entered illegally are inadmissible; that is not a ground for
inadmissibility of an asylum application under EU law (even after this proposal),
and indeed EU law still requires that the ‘safe third country’ rule (in any EU version)
cannot apply unless the country concerned admits or readmits the asylum-seeker.
Equally, as confirmed by the CJEU, an application cannot be regarded as
inadmissible in such circumstances. Logically, this should apply where (as in
the UK/Rwanda situation) a supposedly ‘safe’ country obviously lacks the
capacity to take all the asylum-seekers that might theoretically be sent to it
under a treaty – even if the numbers that could be sent there are nominally
uncapped by the treaty – especially where the treaty leaves that country with a
discretionary power to accept or reject any asylum-seeker that the other
country might want to send there.
Nor does the EU’s Regulation – or
any national law implementing it – benefit from the UK principle of parliamentary
sovereignty, which would have presumably protected the UK’s Safety of Rwanda
Act – which deemed Rwanda to be safe despite the UK Supreme Court ruling – from
being struck down by the courts. While the Regulation does not expressly state
that the designation of a ‘safe third country’ can be challenged as such, it
would surely be a breach of Article 47 of the EU Charter of Fundamental Rights
to prevent such a challenge. (By analogy, the most recent CJEU judgment on ‘safe
countries of origin’ (discussed above) said that Article 47 of the Charter
applied to such challenges; and the pending Alace case has implicitly raised
this question again). Certainly, it is hard to imagine the CJEU, or (one would
hope) national courts in the EU, accepting anything like the UK’s explicit ban
on any judicial review of the designation of ‘safety’, coupled with (mostly) disapplying
national and international human rights law.
In contrast, both the Regulation
and the UK’s Act do allow asylum-seekers to challenge whether a country is ‘safe’
in their particular circumstances – although the EU’s version of this
possibility (‘elements justifying why the concept of safe third country is not
applicable to him or her’) appears rather broader than the UK’s (‘compelling
evidence relating specifically to the person’s particular individual
circumstances’).
The EU proposal is broader than
the failed UK policy in one respect: it is not limited to illegal entrants. The
only asylum-seekers excluded from the possible application of a Euro-Rwanda
treaty are unaccompanied minors. (Member States might be tempted to ‘time out’
their protection, ie send them to Rwanda etc as soon as they turn 18; but there
are deadlines to decide on asylum applications in EU law, and CJEU
case law has rejected attempts to ‘time out’ unaccompanied minors in other
asylum contexts, focussing on how old they were when they applied for asylum)
Another obvious, and fundamental,
issue is the willingness of non-EU countries to accept those who have transited
through the territory, or to enter into agreements or arrangements as referred
to in the proposal. The previous UK government travelled the world – falsely briefing
the press along the way – before it found a foreign government willing to do an
asylum deal with it. Even then, and despite sending huge sums of British
taxpayer money to Rwanda, there were questions
about the capacity there compared to the numbers of asylum-seekers who could
have been subject to the UK’s Rwanda policy. Will EU Member States have any
greater success finding a non-EU country that is willing and able to take their
asylum-seekers – and which is also genuinely safe? (One would expect any Member
State literally doing a deal with Rwanda itself to be challenged in
court, with the challengers referring to the arguments which persuaded the UK
Supreme Court)
It should be recalled that
countries have no underlying obligation to take back non-citizens who have transited
their territory – and still less to take those who have never been anywhere
near it. They might agree to a treaty which requires them to admit people who passed
through the territory, or whom they gave a visa or residence permit too, as EU
readmission treaties with non-EU countries usually require (see the EU-Albania
readmission treaty, for instance). But even then there is a question of
evidence to prove that they were there; and the non-EU countries concerned only
agreed to these treaties on the basis of a quid pro quo (such as visa
facilitation, or the promise of eventual visa waivers). While the EU’s readmission
treaties would be relevant to the first new ground of defining ‘safe third countries’
(ie transit countries), they would obviously not be relevant to the second new
ground, as they do not include rules on processing asylum applications.
(By the way, ‘Rwanda clauses’ obviously
cannot be defended based on the often-heard claim that ‘asylum seekers ought
to apply in the first safe country’. By definition, Rwanda policies apply to
countries that the asylum-seeker has not passed through, and probably was never
even close to: the journey from (say) Afghanistan to the EU or the UK passes nowhere
near Rwanda.)
Compared to the ‘safe third
country’ proposals for non-EU countries, the EU’s Dublin system is built upon mutual
trust between EU Member States, which are subject to many human rights
obligations (and, for most Member States, harmonised rules of EU asylum law).
It has criteria to determine which Member State is responsible for an asylum application;
binds Member States to accept asylum-seekers they are responsible for under the
rules; and includes detailed provisions on the process of transferring
asylum-seekers to the responsible Member State, including rules on evidence. And
even then, there are significant problems with applying the Dublin system in
practice – including as regards the principle of mutual trust.
None of these features are
present between EU Member States and non-EU countries, and it would take some
time to develop them – on top of the issue of political willingness of the
non-EU countries to sign up, and the fundamental question of whether those
countries are ‘safe’ at all. While the Commission’s proposal does not reproduce
all the features of the UK’s failed policy, it is similar enough to raise comparable
questions about its feasibility, and – if Member States also try to override court
rulings about the safety of the countries concerned – its legality and morality
too.
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