Steve Peers, Professor of Law, Royal Holloway University of London
Photo credit: Steve F, via Wikimedia
Commons
Introduction
The EU’s asylum pact, agreed in
2024, is mostly not fully in force yet; it will largely apply from 12 June 2026.
But even before that date, the EU is planning to make its rules more stringent –
and even to apply some of them in advance. The prospect of these planned
changes moved closer recently, as both the European Parliament and the EU Council,
ie Member States’ ministers firmed up their negotiation positions on two separate
proposals, and may negotiate an agreed final text of them both in the near future.
This blog post summarises the
proposals in their context, and then examines the proposed amendments coming
from the EP and the Council, concluding with an assessment of the main issues
arising from the negotiations – including the prospect 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, and the European
Parliament’s suggestion to curtail judicial review in a way that would obviously
breach the EU’s Charter of Fundamental Rights.
Background
The EU asylum pact includes a Regulation on asylum
procedures (which I previously discussed here),
replacing the current Directive
on asylum procedures, dating from 2013, which sets out detailed rules on the
processing of asylum applications. These include rules on both supposedly ‘safe
countries of origin’ (countries which asylum-seekers originate from) and supposedly
‘safe third countries’ (countries other than the countries of origin, which asylum-seekers
‘should’ apply for asylum in instead).
Variations of these two concepts
have existed in EU law for a long time, dating 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 2013 version of the
rules. Although the asylum pact Regulation adopted in 2024 made these rules
more restrictive for asylum-seekers, this was deemed insufficient, hence the
move to change the rules in the pact already.
‘Safe countries of origin’
Current rules
The 2013 rules provide that a
country can be considered a ‘safe country of origin’ for non-EU asylum seekers
if it meets specified human rights standards, taking account of country of
origin information from various sources such as the UNHCR and EU asylum agency.
Use of this rule is currently an option for Member States. 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. Member States must lay down further
rules in national law if they use the concept. They must also regularly review
the list of countries concerned and inform the Commission of the list.
Unlike the 2005 rules, it is not possible
to define a country as safe only in part, either geographically or for selected
groups of people, as the Court of Justice has recently confirmed (see here
and here).
These judgments put a spanner in the works – at least temporarily – of the
Italy/Albania arrangements, under which Italy planned to remove to Albania select
groups of asylum-seekers who came from a ‘safe country of origin’, which was designated
as ‘safe’ for only some groups of people; the asylum-seekers were to remain in
Albania while Italy processed their application. In the latter judgment (Alace),
the Court of Justice also said that: a Member State had a choice of routes to designate
a ‘safe country of origin’ in national law, but its designation must 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.
Defining a non-EU country of
origin as ‘safe’ creates a presumption, which can be rebutted by the asylum-seeker
if they can show ‘any serious
grounds for considering the country not to be a safe country of origin in his
or her particular circumstances and in terms of his or her qualification as a
beneficiary of international protection’. It is also a ground for
fast-tracking the consideration of asylum applications, although the current
rule does not specify a time limit to this end (just that it should be ‘reasonable’,
and can be exceeded if necessary to examine the application properly). In
comparison, the time limit for ‘standard’ asylum applications in the current
law is six months (although there are several grounds for extending that
deadline).
The ‘safe country of origin’ rule
is also one ground for applying a fast-track border procedure to asylum-seekers’
applications; again, such procedures are currently optional. Here there is a specific
deadline, namely to conclude the process within four weeks, otherwise the
asylum-seeker must be allowed on to the territory, and (as confirmed by Court
of Justice case
law) released from detention if that was the only ground for it. Finally, Member
States may deny suspensive effect appeals in ‘safe country of origin’ cases,
although asylum-seekers must have an opportunity to request a court to grant such
suspensive effect.
2024 Regulation
Under the 2024 asylum pact
Regulation, applicable (as things now stand) to asylum applications made after
12 June 2026, the ‘safe country of origin’ rules become mandatory for Member
States. (Most, but not all, Member States were applying them already) The basic
definitions of human rights standards in the country of origin remain, as do the
rules on the sources of data to be considered. But under the new rules, 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’). Conversely, there is
nothing to suggest that the other aspects of the Alace judgment (on effective
judicial review of designations of ‘safe third countries’) cease to apply.
One new aspect of the rules is
that it is possible for the EU to adopt its own common list of ‘safe countries
of origin’, via the ordinary legislative procedure. This is accompanied by
rules on dropping countries from the 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; 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.
A similar new ground for
accelerated procedures 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.’
There will now be a specific
three-month deadline to decide on accelerated cases, although an authority can
decide to consider the asylum application on the merits if the case is too
complex. (The general deadline to decide on applications remains six months;
the possibilities of extending that deadline have been partly curtailed).
‘Safe country of origin’ remains
a ground (alongside now the ‘20% recognition rate’ rule) for considering
applications in a border procedure, but that procedure has been overhauled: it
is now mandatory for Member States for a certain number of asylum-seekers,
provides for a longer period of application (12 weeks, now including appeals),
and is subject to more exceptions. In particular, unaccompanied minors can no
longer be subjected to it, except where they are ‘national security’ or ‘public
order’ risks.
As for appeals in ‘safe country
of origin’ cases, it is now the standard rule that they do not have suspensive effect
(except for unaccompanied minors in the context of the border procedure),
although as before it must be possible for asylum seekers to request suspensive
effect from the courts. Some additional safeguards that currently apply to the
lack of suspensive effect in border procedure cases have been dropped.
Commission proposal
The Commission’s proposal,
dating from April 2025 (see my previous comments here),
would first of all allow (as an option) the early application of the revised
rules on ‘safe country of origin’, as well as the new ‘20% recognition rate’
rule, in order to provide for the earlier application of the Italy/Albania
arrangements; other Member States might have a use for earlier application of
the rules too. In fact it would also allow for early application of the partial
designation of countries as ‘safe third countries’ too. It will also allow
application of the 2024 version of these special rules in the current version
of the border procedure (among other things, the 2024 exclusion of most
unaccompanied minors from the border procedure will not apply).
Secondly, it would set out a
common EU list of ‘safe countries of origin’, as from the entry into force of
the Pact: seven named countries (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 would be subject to special rules: their
listing would switch off if they have been subjected to EU foreign policy
sanctions ‘adopted in view of the country’s actions’, or if their recognition rate
is above 20% at first instance, or if there is a ‘serious and individual threat
to a civilian’s life or person by reason of indiscriminate violence’ in that
country (which is one of the grounds for ‘subsidiary protection’ in EU law). It
is not certain whether the usual rules on suspending a country from the list
also apply to accession candidates, given that a special new category has been
created for them. The proposal would list all these countries as a whole, ie
not using any of the exceptions for parts of a country or groups of people which
the Commission argued were so essential to provide for Member States.
Council position
The recently agreed Council
position has taken over most of the Commission proposal. While the Council
accepts the early application of parts of the Regulation and the common EU list
of ‘safe countries of origin’, including the accession candidate countries (subject
to a special rule), it would make a few amendments. (A statement
by Hungary objects to having a special rule for accession candidates,
preferring to list them automatically without any conditions – although listing
them automatically is a special rule in itself)
First of all, the Council
position would amend the proposal so that it would be possible to suspend a
country partly from a common EU list of ‘safe third country’ or ‘safe
country of origin’, on the same basis that Member States can designate a country
only partly, ie geographically or as regards groups of people. If a country is
partly removed from the common EU list by EU legislation, Member States would
not need the Commission’s approval to reinstate that country partly to a
national list.
Secondly, the Council would alter
the special conditions applicable to accession countries. The ‘subsidiary
protection’ ground for disapplying the status would no longer refer to an ‘individual’
threat, presumably because an assessment is being made of a country as a whole
in this context. Also, the foreign policy sanctions ground for disapplying the
status would only apply to that country’s actions ‘affecting fundamental rights
and freedoms that are relevant for the criteria of designation of a third
country as a safe country of origin’ set out in the Regulation. The Council
also sets out a procedure for applying these exceptions: the Commission must
inform Member States and the Council of the change in status. However, as
regards the (quasi-)‘subsidiary protection’ exception, the Commission needs the
prior approval of the Council (presumably by qualified majority) before
informing Member States of that change. According to the preamble, this is necessary
in light ‘of the potential implications for the external relations of the Union
and the Member States’ in this scenario.
European Parliament position
The European Parliament’s position
(agreed by a committee, and to be reviewed in the full Parliament shortly) is
similar to the Council’s. On the first point, the EP agrees that it would, in
effect, be possible for countries on the common EU list to be suspended only
partly, although it goes into less detail than the Council does.
On the second point, the EP
retains the ‘individual’ threat aspect of removing an accession candidate from
the common EU ‘safe third country’ list, but also adds that a candidate country
should be automatically removed from the list on this ground if the EU’s temporary
protection Directive has been applied to that country. This obviously refers solely
to Ukraine at present (until March
2027, as things stand). The EP would amend the foreign policy sanctions ground
for removal from the list in the same way as the Council.
As for the process, the EP wants
the Commission to remove candidate countries from the list by means of a delegated
act, rather than by informing the Council and getting the Council’s approval in
some cases – although the Council has a role anyway in scrutiny of delegated
acts (and in invoking and extending the application of the temporary protection
Directive). Using a delegated act – which is, after all, already the usual process
set out in the Regulation for suspending a country from the common list – would
also give the EP a role in the suspension process.
The EP would also make some
amendments to the preamble. One of them, indicating that assessments of the
safety of non-EU countries should be ‘accessible’, reflects the Alace
judgment. But another amendment to the preamble plainly conflicts with that
judgment, purporting that:
…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’
Current rules
The 2013 rules (again, an option
for Member States) provide that a non-EU country can be considered a ‘safe third
country’ (the position of EU countries and the associated countries of Switzerland,
Norway, Iceland and Liechtenstein is a separate issue) if several criteria are
satisfied: 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); 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’; and
the possibility ‘to request refugee status and, if found to be a refugee, to
receive protection in accordance with’ the Refugee Convention.
The ‘safe third country’
principle must be ‘subject to rules laid down in national law, including’: rules
requiring a ‘connection’ with the other country, ‘on the basis of which it
would be reasonable’ for the asylum-seeker to go there; rules on ‘methodology’
concerning the application of the principle to particular countries or applicants;
and rules permitting the asylum-seeker to challenge the alleged safety of the
country concerned for them, as well as their supposed connection with it.
‘Safe third country’ applications
may be considered inadmissible, ie not considered on the merits; but if the
supposedly safe country does not permit the person concerned to enter its territory,
the Member State must fully consider the merits of their claim. This rule has
been confirmed by the Court
of Justice, in a case where Greece was breaching it by ruling thousands of
claims inadmissible because Turkey was ‘safe’, even though Turkey was no longer
readmitting any of the asylum seekers concerned.
A special inadmissibility interview
is held, rather than an interview focussed on the well-foundedness of the asylum
claim as such. The Directive hints that Member States may have separate time
limits for such cases.
As with ‘safe countries of origin’,
the ‘safe third country’ rule is another ground to apply a special borders
procedure (if Member States opt to do so). Conversely, the suspensive effect of
an appeal cannot be denied in ‘safe third country’ cases.
2024 Regulation
The 2024 rules – which remain an
option for Member States – are now subject to a definition of ‘effective
protection’, in place of an opportunity to request and receive Refugee
Convention refugee status: 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’. So even
countries which have not ratified the Convention at all can be regarded
as offering ‘effective protection’, if they meet these other conditions.
As with ‘safe countries of origin’,
it is now 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. There is a special safeguard for unaccompanied minors:
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 [the Regulation].
The law still rules out holding ‘safe
third country’ applications to be inadmissible if the other country refuses to admit
or readmit the person concerned on to its territory.
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.
The revised border procedure in
the Regulation (described above), also applies to ‘safe third country’ cases. There
is also now 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. Finally, appeals in ‘safe third country’ cases still have automatic
suspensive effect.
Commission proposal
The Commission’s proposal,
dating from May 2025 (see my previous comments here),
would alter the rules as regards the asylum-seeker’s links to the country
concerned, so that a ‘connection’ to that country would no longer be the only
ground for applying the principle. It could also apply where either the asylum
seeker had transited through that country, or a Rwanda-type deal existed with a
country that the asylum had neither a connection with nor transited through: ‘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’. However, the latter new criterion
would not apply to unaccompanied minors, and in any case there would be an
obligation to consider the best interest of the child. Member States would have
to inform the Commission and other Member States in advance of concluding such agreements
or arrangements.
Secondly, the Commission proposal
would alter the rules on appeals, so that there would no longer be automatic
suspensive effect in ‘safe third country’ appeals, except for unaccompanied minors
subject to the border procedure. Nevertheless, it would be possible to request
a court to grant suspensive effect.
The ‘safe third country’ principle
would remain optional for Member States, and the Commission does not propose to
change the criteria defining the ‘safety’ of a country as such, the applicable
deadlines, the related rules on the border procedure, the current safeguard for
unaccompanied minors or the requirement that Member States must consider the
merits if the third country concerned refuses to admit the asylum seeker. Nor
does it propose to use the power to adopt a common EU list of ‘safe third
countries’.
Council position
The Council’s
position would take on board the Commission’s main points, clarifying that
the transit in question must be ‘on the way to the Union’, and providing for
the EU, not only Member States, to enter into negotiations with non-EU
countries which the asylum seekers have no link at all to. New provisions would
require the Commission, when negotiating such agreements or arrangements, to take
Member States’ existing agreements or arrangements into account, including the
potential impact of EU agreements or arrangements on cooperation of the non-EU
countries with certain Member States. But an agreement or arrangements with the
EU, once concluded, will take priority over agreements or arrangements with
Member States, where they are incompatible.
Member States negotiating such agreements
or arrangements must inform other Member States and the Commission of them prior
to their entry into force or provisional application, and also inform other
Member States and the Commission of any amendments or termination. A notification
should come at an (unspecified) earlier point where the agreements or
arrangements are with a non-EU country that borders on a Member State (ie
Germany sending asylum seekers to Turkey may have a particular impact on
Greece). As an option (according to the preamble), Member States could consult
the Commission at an earlier stage, with a view to considering the compatibility
of the draft agreement or arrangement with EU law. The Council version would also
allow for different ways to inform a non-EU country that the applications of asylum-seekers
being sent there have not been considered on the merits.
This negotiation position
maintains the exclusion of unaccompanied minors from the ‘Rwanda clause’. On
the other hand, it would drop the general reference to the rights of the child
that the Commission wanted to insert in the main text, although the preamble
would retain a reference to this principle, adding that ‘Member States should
also take due account of the principle of family unity when applying the safe
third country concept’. The safeguard already in the 2024 Regulation for
unaccompanied minors, described above, would not be amended by either the
Commission or the Council.
The Council’s version would also
drop automatic suspensive effect in cases where the asylum seeker has
international protection from another Member State. Greece objects
to this. It should be noted that the 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.
Finally, the Council version tries
to clarify some elements of the ‘safe third country’ rule in the preamble. As
regards the concept of a ‘connection’ (which will, of course, matter less than
it does at present, given the two new categories of ‘safe third countries’):
While taking
fully into consideration the parameters outlined in the case law of the Court
of Justice of the European Union, Member States should be able to apply the
safe third country concept 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 country, where the applicant has settled or stayed in that
country, or where the applicant has linguistic, cultural or other similar ties
with that country.
Transit through a non-EU country
is also clarified:
transit
through a third country could include the 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 he or she has had the possibility to request
effective protection with the authorities of that country
As for the Rwanda-style
arrangements, they ‘could include a variety of case-processing modalities, such
as simplified, group or prima facie procedures’. This wording seems to imply a
potentially dismissive attitude to the non-EU country considering the merits of
applications.
European Parliament position
The European Parliament’s position
(again agreed by a committee, and to be reviewed in the full Parliament
shortly) is similar to the Council’s. In fact, the EP would only make two
changes to the main text of the Commission proposal. First, like the Council,
the EP would also provide for the possibility of the EU, not only individual
Member States, negotiating Rwanda arrangements, although it goes into less detail
than the Council version about the mechanics of this. (Its proposed changes to
the preamble would, however, require Member States to inform about bilateral
talks at an earlier point, and inform the EP too; and the arrangements would have
to be in writing).
Second, the EP version would
subject unaccompanied minors to the Rwanda clause if there are ‘reasonable
grounds’ to believe that they are a security or public order threat ‘under
national law’. While the Court of Justice has usually
interpreted security exceptions from asylum law narrowly, the reference to
national law may be intended to give Member States more leeway. The EP would,
however, retain the general reference to the ‘best interests of the child’ being
added to the main text.
The EP also suggests changes to
the preamble to the proposal, some of which align broadly with the Council’s.
On the ‘connection’ with the ‘safe third country’, the EP 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,
or where the applicant has other links with that country, such as the same or
similar language, or other economic, cultural, religious, or geographical
links.
Unlike the Council’s version,
there are, however, no broad references to national law in this context.
The EP version supports automatic
suspensive effect being removed from most ‘safe third country’ appeals,
although unlike the Council, it would not also remove automatic suspensive
effect from appeals made by those who have international protection already from
another Member State.
Assessment
First and foremost, one of the
amendments proposed by the EP would be plainly unlawful, as an obvious breach
of 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.
The EP majority has also not thought
this amendment through. It is not reflected in the main text of the Regulation;
and it is unclear if the amendment is somehow intended to prevent a review of
the validity of a designation on the common EU list too. But Article 267
TFEU provides that a national court can ask the Court of Justice about the validity
of EU legislation; if the EP amendment is intended as an attempt to preclude
that, then it would be unlawful for a second reason.
Otherwise, as discussed already,
there is not must difference between the EP and Council positions on either
proposal. Traditionally the EP has taken a significantly more liberal view than
the Council on asylum issues, but now the two are broadly in sync (and both in
a more restrictive direction than in the past), with the EP even more restrictive
than the Council on some points, although the Council is more restrictive than
the EP on some points too.
On the ‘safe country of origin’
proposal, the EP’s position on the definitions and process regarding candidate
countries is more convincing: it is logical that applying the temporary
protection Directive should lead to an automatic exclusion from the common list
of ‘safe countries of origin’, and it would make sense to follow the usual delegated
acts process for suspending a country from the list, rather than an ad hoc
intergovernmental process that only gives a role to the Council (there’s
history here: the Court of Justice previously
ruled against the Council’s botched attempt at an ad hoc intergovernmental process
as regards the very same issue).
As regards the ‘safe third
country’ proposal, the Council’s attempt to extend the removal of automatic
suspensive effect is an unprincipled reach into another area of EU asylum law,
and would in any event remove an essential feature of an effective remedy as regards
potential breaches of Charter rights. But the removal of automatic suspensive
effective from ‘safe third country’ cases is also problematic, especially in
light of the extremely broad definition of the concept that would follow from the
proposals.
The introduction of a ‘Rwanda
clause’ in EU asylum law undercuts the traditional argument that asylum-seekers
‘should have’ applied in another country. Nevertheless, this rationale even
appears in the Council’s press
release:
The safe third
country concept allows EU member states to reject an asylum application as
inadmissible (i.e. without examining its substance) when asylum seekers could
have sought and, if eligible, received international protection in a
non-EU country that is considered safe for them.
Frankly, this is untruthful. It
is not serious to suggest that an asylum-seeker who made their way from Syria,
Eritrea or Afghanistan to the European Union ‘could have sought’ international
protection in Rwanda, a country many hundreds of miles from any route they
would have taken. ‘Could have sought’ is not a rule in the legal text either.
Trump-style dishonesty about migration and asylum should not be appearing in
the output of the press office of an EU institution.
A Rwanda-clause – unlike the
introduction of the transit clause in the ‘safe third country’ definition – has
nothing to do with the route the asylum-seeker took, and everything to do with the
destination country’s desire to dump the asylum-seeker in any State that will
take them. This will inevitably become a key issue as regards the application
of the law.
Adding the possibility of the EU asking
non-EU countries for Rwanda treaties – as both the EP and the Council would
like – does not change the game much. Although the EU has levers at its disposal
to use the new transit clause – because its readmission treaties provide
that the other parties must take back not only their own citizens, but also
non-citizens who transited through their countries, and the EU’s visa
code, visa
waiver suspension rules, and soon trade
policy laws, all sanction countries that do not comply – there are no such
levers as regards Rwanda treaties. It remains to be seen what threats and bribes
the EU and its Member States are willing to develop, and how easily the Rwandas
of the world can be coerced or tempted by them.
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