Steve Peers, Professor of Law, Royal Holloway University of London
Photo credit: Andre Engels, via Wikimedia Commons
The EU’s asylum pact was adopted less
a year ago, and mostly won’t apply for over another year – and yet the EU Commission
has already proposed
to amend it, in order to bring forward some of the rules in the procedural
part of the pact, and to adopt a common list of ‘safe countries of origin’ to
apply when the rest of the pact enters into force. The aim is to speed up consideration
of asylum claims, and in particular to help to ‘save’ the Italy/Albania deal on
asylum processing. The following blog post looks in turn at the background to
the new proposal, and then the different elements of it, followed by an
assessment.
Background
Previous and current rules
Initially, the concept of ‘safe countries
of origin’ goes back, at EU-wide level, to ‘soft law’ adopted in the early
1990s (one of the ‘London
Resolutions’ of 1992). Subsequently, the principle 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’, as further defined. (Note that these rules refer to non-EU
countries of origin; there is a separate, stricter set of rules setting out the
near-impossibility of EU citizens making asylum applications in other
Member States, because each EU Member State is considered to be a ‘safe country
of origin’ too, according to a protocol
attached to the EU Treaties).
Currently, a revised version of the
principle is set out in the second-phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’). Unlike the 2005 Directive, there is
no longer a reference to potentially treating only part of a country as ‘safe’,
and the previous 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 CJEU has ruled on these provisions twice.
First, the Court confirmed that Member States had to provide for a ‘safe
countries of origin’ rule in national law if they wanted to use apply this principle. Secondly, in
October 2024 the Court interpreted the substance of the rule, in particular confirming
that it was no longer possible to designate part of country of origin as ‘safe’,
given that the EU legislator had dropped that possibility from the text of the 2013
Directive, as compared to the 2005 Directive (see further discussion of that
judgment here).
Given that the Italy/Albania treaty on
housing asylum applicants in Albania only applied (at least initially) to
asylum-seekers from supposed ‘safe countries of origin’, this created a number
of potential barriers to the application of that treaty, with multiple Italian
courts sending a questions to the CJEU about the rule. The CJEU has
fast-tracked two of these cases – Alace
and Canpelli – which raise questions in particular about whether Member
States can designate a country of origin as ‘safe’ with exceptions for certain
groups, and also whether they can designate such countries by means of
legislation and must publish the sources of their assessment when they do so.
(The case is pending: see earlier blog posts on the background,
the hearing,
and the Advocate-General’s
opinion)
Future rules
The 2024 asylum procedures Regulation (the ‘2024 Regulation’) has amended the ‘safe country of origin’
rules again, although as things stand the 2024 Regulation is only applicable to
applications made after June 2026. This upcoming version retains many of the
current features of the ‘safe country of origin’ concept (which are set out in
more detail below): the definition of human rights standards which must apply
before a country can be designated as ‘safe’; the procedure for designation
(laying out the sources of information which must be taken into account); and the
safeguards (the asylum-seeker must be a national of or a stateless person habitually
resident in the country concerned, and must have the possibility to rebut the presumption
of safety in their particular circumstances).
But there are several changes in the 2024 Regulation. In particular, it will
now again expressly be possible to create an exception to the designation of ‘safety’
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’.
More broadly, the ‘safe country of origin’ rule will remain on the list
of possible accelerated procedures, but there is more
harmonisation of the rules on time limits and appeals in these cases. There is
also a potentially overlapping new ground of accelerated procedures where the
country of origin has an international protection recognition rate below 20% at
first instance (based on the latest annual Eurostat data), although this is
subject to some safeguards, discussed further below.
Another important new development in the 2024
Regulation is the possibility to adopt a common EU list of ‘safe countries of
origin’ (there were two earlier failed attempts to do this; see my previous
blog post). According to Article 62(1) of the Regulation in its current
form, the EU common list must be subject to the same rules as the national list
(‘in accordance with the
conditions laid down in Article 61’). The Commission has to review the EU list with the assistance of the
EU Asylum Agency, on the basis of the sources of information applicable to
Member States drawing up their lists (Article 62(2)). Also, the EU Asylum
Agency must provide information to the Commission when it draws up proposals
for the common EU list (Article 62(3); the list must be adopted by the ordinary
legislative procedure, ie a qualified majority of Member States, in agreement
with the European Parliament). If there are ‘significant changes’ in a country
on the common EU list, the Commission must conduct a ‘substantiated assessment’
of the situation in light of the ‘safe country of origin’ criteria, and can
suspend a country from the list on a fast-track basis.
As for Member States, they can still designate additional countries as ‘safe
countries of origin’, even if those countries are not on the common EU list.
But if a country is suspended from the common EU list, Member States need the
Commission’s approval to put that country back on a national list for the
following two years.
The new proposal
The new proposal has two main elements, each of which can be broken down
into two sub-elements. First of all, it would bring forward some of the rules in
the 2024 Regulation. This would apply to aspects of the ‘safe country of origin’
and ‘safe third country’ rules on the one hand (which would apply when the newly
proposed Regulation, once adopted, enters into force), and to the ‘low recognition
rate’ ground of accelerated proceedings on the other (which Member States could
apply before the asylum pact otherwise applies).
Secondly, it would establish a common EU list of ‘safe countries of
origin’ that would apply as from the main 2026 date to apply the 2024 Regulation
as a whole. This would include both candidate countries for accession to the EU
(which would be subject to a new set of special rules) and a further list of
seven countries to be regarded as ‘safe countries of origin’.
The proposal would apply to all Member States except Denmark and possibly
Ireland, which could opt in or out (so far, Ireland has adopted into all of the
asylum pact measures that it could). It
would not apply to non-EU countries associated with Schengen.
Earlier application of the asylum
pact
‘Safe country’ rules
The proposal would allow the earlier application of key changes to the ‘safe
country of origin’ rules set out in the 2024 Regulation, as regards creating
exceptions to that concept for part of a country, and for groups of people. As
noted above, the CJEU has ruled that the former exception cannot apply under
the 2013 Directive, while it will soon rule on whether the latter exception can
currently be invoked under that Directive. So if the proposal is adopted, the
change as regards exceptions for part of a country will definitely overturn the
existing case law, while the change as regards exceptions for a group of people
will possibly change the existing law, depending on what the Court rules (it’s
likely, but not certain, that the judgment will come before the proposal becomes
law).
Of course, these changes will apply anyway once the 2024 Regulation
applies in June 2026. But some Member States are anxious to be able to apply
these exceptions earlier than that, in particular Italy: both the exceptions are
very relevant in practice to whether the Italy/Albania asylum deal is workable
earlier than next June.
The proposal would also allow the earlier application of the same changes
to the ‘safe third country’ rules set out in the 2024 Regulation (ie the rules
on whether asylum seekers can be sent to another country, other than an EU
Member State or their country of origin, which should decide upon their asylum
application). Presumably the Commission assumes that the CJEU, if asked, would
also find that there is no exception for parts of a country or groups of people
as regards designation of ‘safe third countries’, by analogy with its existing
or possible future judgments on ‘safe countries of origin’ under the 2013 Directive.
Note that only some of the new ‘safe third country’ and ‘safe country of
origin’ rules in the 2024 Regulation (ie the possible exceptions for parts of
countries or groups of people) would apply early. For instance, the prospect of
common EU lists for either concept would not apply early; the proposed common ‘safe
country of origin’ list, discussed below, would only apply from June 2026, when
the 2024 Regulation generally starts to apply. Furthermore, the Commission will
likely soon propose further changes to the ‘safe third country’ rules, in a
separate proposal: the 2024 Regulation requires a review of those rules by this
June.
Low recognition rate rules
In addition to early application of revised versions of current rules,
the proposal would also bring forward the application of a brand new rule set
out in the 2024 Regulation: the ‘low recognition rate’ rule, on accelerated
procedures where the recognition rate (ie the success rate of asylum applications)
of a country’s citizens is below 20% at first instance, ie before appeals (even
though a proportion of appeals is successful). This also includes most of the safeguards
attached to this new rule: it cannot apply if the Member States’ administration
‘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’.
The proposal also provides for early application of
the same rule (subject to the same safeguards) as regards unaccompanied minors,
although the Commission makes no mention of this point, and so provides no
justification for it, in its explanatory memorandum.
However, arguably the proposal does not bring forward
the rule (as regards both asylum seekers generally and unaccompanied minors in
particular) that the assessment of significant changes must take account of any
guidance note on the point issued by the EU Asylum Agency.
Also, the proposal does not bring forward other aspects of the 2024
Regulation related to the ‘low recognition rate’ rule. The Commission expressly
points out that the rule will remain optional for Member States, until the 2024
Regulation makes it mandatory from June 2026. Furthermore, while the proposal states
that the ‘low recognition rate’ rule can be used in special border procedures
(in the 2013 Directive version of border procedures, not the 2024 Regulation
version of them, until June 2026), it does not include the important exceptions
from border procedures set out in the 2024 Regulation.
In particular, that Regulation excludes the border procedure from applying
to unaccompanied minors on ‘low recognition rate’ grounds, and also excludes
the border procedure from applying to asylum seekers generally where: the rules
on accelerated or inadmissible cases do not apply; support cannot be provided
to asylum seekers with ‘special reception needs’ or ‘in need of special procedural
guarantees’; there are medical grounds; or detention guarantees cannot be
complied with. But none of these exceptions are made applicable (prior to June
2026) by the new proposal. This point is particularly relevant to detaining
asylum seekers – which is easier to justify legally when the border procedure
applies. So the attempt to widen the use of the borders procedure could widen
the use of detention.
Common EU list of ‘safe countries of
origin’
EU accession candidates
The proposed Regulation would delete the current Article 62(1) of the
2024 Regulation (which requires any common EU list of ‘safe countries of origin’
to comply with the ‘conditions’ relating to that concept set out in Article 61),
replacing it with a statement that candidate countries to join the EU (the
Commission does not name them, but they are Serbia, Montenegro, Ukraine,
Moldova, North Macedonia, Albania, Bosnia, Georgia and Turkey) are ‘designated
as safe countries of origin’ at EU level, save in ‘one or more’ of three circumstances:
(a)
there is a serious and individual threat to a
civilian’s life or person by reason of indiscriminate violence in situations of
international or internal armed conflict in the country;
(b)
restrictive measures within the meaning of Title
IV of Part Five of the Treaty on the Functioning of the European Union have
been adopted in view of the country’s actions;
(c)
the proportion of decisions by the determining
authority granting international protection to the applicants from the country
- either its nationals or former habitual residents in case of stateless
persons – is higher than 20% according to the latest available yearly
Union-wide average Eurostat data.
The first of these tests replicates the wording of one of the grounds
for ‘subsidiary protection’ in EU law on qualification
for status, although there is no cross-reference to that legislation here in
this context. Among the candidate countries, the only one which might be
subject to this rule is (obviously) Ukraine, as long as the Russian invasion
persists. The CJEU has recently
been asked whether individual applications for subsidiary protection are
even possible given that those fleeing Ukraine have temporary
protection; but arguably the wording of the new proposal raises a different
issue, because in this context the existence of the threat would be judged as
regards the situation in the country concerned more broadly, rather than in the
context of an individual application for protection. Also, if the drafters had
wanted an exception regarding temporary protection, they would surely have provided
for it expressly; and anyway Ukraine will likely be covered by the third test.
The second test refers to EU foreign policy sanctions. A quick look at
the EU sanctions database
informs us that arguably none of the countries concerned face sanctions because
of the country’s actions: the sanctions as regards Ukraine and Moldova
relate to the actions of Russia or Kremlin surrogates; the sanctions as regards
Mediterranean drilling concern only certain Turkish businesses; and the
sanctions relating to Serbia and Montenegro are expressly described as historic
(relating to claims as regards the previous Yugoslav war). (The recent
EU sanctions against Georgia are a visa measure, not a foreign
policy measure).
The third test flips the new ‘low recognition rate’ ground for accelerated
procedures, meaning that neither that ground for accelerated procedures nor
the ‘safe country of origin’ ground can apply once the recognition rate goes
above 20%. Note that this test only takes account of first instance decision-making;
if successful appeals take the recognition rate for nationals of a candidate
country above 20%, that country nevertheless remains a ‘safe country of origin’
EU wide. Unlike the ‘low recognition rate’ rule as it usually applies, there is
no reference to categories
of people who have higher recognition rates, taking into account (for instance)
appeal decisions. However, arguably ‘significant changes’
in the country concerned must still be considered – in the context of suspending
the country concerned from the common EU list, as discussed below.
Applying the third test in practice, the most
recent annual Eurostat asylum statistics (2023) show a first-instance
recognition rate of 2.8% for Montenegro, 6.4% for Bosnia, 1.9% for Serbia, 0.6%
for North Macedonia, 7.8% for Georgia, 10.2% for Albania, 93.8% for Ukraine, 2.6%
for Moldova, and 21.1% for Turkey. So on this basis, Ukraine and Turkey will
not be on the EU-wide ‘safe country of origin’ list if the proposal is adopted
as it stands – although the position might change on the basis of the annual
asylum Eurostat statistics for 2024, which will likely be available by the time
it is adopted, and the position for each candidate country may change annually after
that.
Although the proposal would, in effect, create a distinct rule
applicable to candidate countries as far as being ‘safe countries of origin’ is
concerned, it still refers to those countries being designated as having that status.
So arguably the rules for suspending that designation in the event of ‘significant
changes’, and the corollary limits on Member States subsequently placing the suspended
countries on their national ‘safe country of origin’ lists, continue to apply –
even though these rules refer back to the general rules on designation of ‘safe
countries of origin’, rather than the proposed new lex specialis rules for
candidate countries (see Articles 63(1) and 64(3) of the 2024 Regulation).
The proposed specific rules for candidate countries as ‘safe countries
of origin’ can be compared to the separate set of rules for EU Member States on
the same point, referred to above – although the rules for EU Member States
remain much more restrictive (it is far harder for nationals of EU Member
States to rebut the presumption of safety, for instance; although as they enjoy
free movement rights, the need to apply for international protection status to
stay in another Member State will usually be immaterial for them)
The Commission’s rationale for the special rules on candidate countries
is that they have already gone through a form of screening, when the European
Council decided to confirm their status as candidate countries, applying the ‘Copenhagen
criteria’: the ‘stability
of institutions guaranteeing democracy, the rule of law, human rights and
respect for and protection of minorities; a functioning market economy and the
ability to cope with competitive pressure and market forces within the EU; the
ability to take on the obligations of membership’. Therefore the Commission did
not assess these countries against the usual criteria to be designated as ‘safe
countries of origin’, as the current Article 62(1) of the 2024 Regulation would
require; indeed, as noted already, the proposal would replace the current Article
62(1). However, despite the deletion of that provision, the proposed Regulation
still assumes (in the preamble) that the safeguards of being a national of the
supposed ‘safe country of origin’ (or a stateless person habitually resident
there) and the possibility of rebutting the presumption of safety in individual
cases continue to apply.
Other countries
The seven other countries to be designated as ‘safe countries of origin’
EU wide are listed in a proposed
new Annex to the 2024 Regulation. These countries are Bangladesh, Colombia, Egypt, India,
Kosovo, Morocco and Tunisia. In each case, the Commission’s explanatory
memorandum (and the preamble to the proposed Regulation) attempts to justify
the inclusion of these countries on the list individually.
According to the Commission, the process to
determine the list was based on the EU Asylum Agency, at the request of the
Commission (reflecting the role of the Agency in drawing up the proposal for
the common EU list, as set out in Article 62(3) of the 2024 Regulation), setting
out a methodology:
to support the identification of
the countries that could be considered for possible designation as “safe
countries of origin” at Union level, including EU candidate countries and one
potential candidate; countries of origin that create a significant asylum
caseload in the EU with an EU-wide recognition rate of 5% or lower; visa-free
countries that create a significant asylum caseload in the EU with an EU-wide
recognition rate of 5% or lower; countries that feature in the existing Member
States’ lists of “safe countries of origin” [scare quotes added]
The Commission then asked the Agency to produce country of origin
information to support the Commission’s assessment; it claims that the Agency’s
analysis is based on a wide range of sources:
comprising, but not limited to:
European Commission reports, including the EU enlargement reports; reports by
the European External Action Service; reports from the EU Agencies (such as the
EU Agency for Fundamental Rights); reports from the United Nations High
Commissioner for Refugees and other international organisations (e.g., the
Council of Europe, the Office of the United Nations High Commissioner for Human
Rights) and non-governmental organisations; political analyses from policy and
international relations think-tanks; verified online media articles; newspaper
articles, as well as national legislation in the countries concerned.
This can be compared to the list of sources referred to in Article 61(3)
of the 2024 Regulation:
The assessment
of whether a third country is a safe country of origin 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, and other relevant international organisations, and
shall take into account where available the common analysis of the country of
origin information referred to in [the Regulation setting up the Agency].
(Note that the Regulation refers to information from the Member States,
but the proposal does not refer expressly to using this source for the
assessment) That list of sources must be applied to establishing the EU list too,
according to the current Article 62(1) of the 2024 Regulation (EU designations
must be ‘in
accordance with the conditions laid down in Article 61’); although, as discussed above, the
Commission proposal would delete this provision.
However, in any event it is impossible to assess either the country of
origin information or the methodology developed by the Agency, because (at time
of writing) the text of these documents is neither supplied by the Commission
nor available on the Agency’s website.
(There are some country of origin reports for some of the countries on the
proposed list on the website, but those reports are outdated: 2016 for the Western
Balkans; 2022 for Colombia; and May 2024 – before the demise of the previous government
– for Bangladesh) This is in spite of
the Advocate-General’s opinion in the pending case of Alace and Canpelli,
which argued that Member States’ assessments
underlying the designations of ‘safe countries of origin’ had to be public.
(The Commission does not tell us whether any additional countries were
considered for inclusion on the common list, but rejected)
Instead we have the Commission’s brief summary, starting with the assertion
that ‘there is, in
general, no risk of persecution or serious harm’ in these countries. This reflects part of the criteria for listing non-EU
countries as ‘safe countries of origin’ set out in Article 61(1) of the 2024 Regulation
(again, as noted above, the current Article 62(1) of that Regulation requires
the common EU list to comply with the ‘conditions’ in Article 61; but the
Commission proposes to delete the current Article 62(1)). Those criteria require
that assessment to take place ‘on the basis of the legal situation, the application of the law
within a democratic system and the general political circumstances’ of the
countries concerned; Article 61(4) furthermore requires assessment of the
application of national law, whether the country concerned complies with the
ECHR or the UN’s International Covenant on Civil and Political Rights, the
expulsion of citizens to unsafe countries and the existence of effective
remedies to protect human rights.
The Commission then assesses each country in
turn, summarising such factors as national designations, the recognition rates,
human rights treaty status, national legal frameworks, democratic standards, judicial
independence and impartiality, removal of citizens to unsafe countries, and the
existence of persecution, the death penalty and torture. This assessment
broadly reflects the criteria set out in the 2024 Regulation, although ‘recognition
rates’ are not expressly referred to as part of the criteria for assessing what
is a ‘safe country of origin’ (nor are trade issues or the situation of
refugees from other countries, which the Commission raises in some
cases).
Each of these countries gets the nod as ‘safe’
despite concerns about threats to some groups of people (such as journalists, LGBT
people or women). Despite wanting to allow Member States to create exceptions to
their ‘safe’ country lists for groups of people or parts of countries, the
Commission does not recommend that the EU have any exceptions for any groups,
even though the 2024 Regulation expressly provides that the common EU list can
include such exceptions (Article 61(2) of that Regulation), and for every
country on the proposed list except Kosovo, the Commission admits that there
are ‘specific challenges faced by certain groups in the country which may merit
particular attention’, and the preamble to the proposal states that ‘certain
categories of applicants may find themselves in a specific situation in the
third countries designated and may therefore have a well-founded fear of being
persecuted or face a real risk of suffering serious harm’. Similarly, although
the Commission notes that there are risks in particular parts of Colombia, it
simply suggests that potential asylum-seekers should have moved within that
country (known as the ‘internal flight alternative’), rather than propose a
territorial exception to the designation of Colombia as ‘safe’.
In light of this, it is questionable why there
are no exceptions for groups of people or parts of a country, particularly when
the same proposal claims that, for Member States, such exceptions ‘offer means
of managing likely unfounded applications efficiently while maintaining
necessary legal safeguards’ (my emphasis). It seems that sauce for the
Member State goose is not sauce for the EU gander; and in fact, it is arguable that
the assessment of the ‘safety’ of the countries concerned is inadequate because
it did not consider whether such exceptions should be granted. Of course, human
rights NGOs may well have further critiques of the details of the Commission’s brief
assessments of ‘safety’.
Conclusions
The new proposal is cynical in many respects. First
of all, the Commission wants some restrictive rules from the 2024 Regulation to
apply in advance, but not some of the safeguards that apply to them – a form of
‘cherry-picking’. This is particularly relevant to the early use of the ‘low
recognition rate’ rule in the context of border procedures, without the
safeguards applicable to border procedures in the 2024 Regulation, especially
the exemption for unaccompanied minors. In fact, as we have seen, the
Commission does not even mention or justify its proposed advance application of
these rules to unaccompanied minors – still less its attempt to waive an
exception that would otherwise apply to them, even when it means they can be
detained.
Secondly, the Commission wants to drop the requirement
to apply the usual conditions that apply to designation of ‘safe countries of origin’,
not only for candidate countries (which will be subject to special rules of
their own) but in general. It is possible that this is simply down to poor legislative
drafting, as despite the proposed abolition of the current Article 62(1) of the
2024 Regulation, the preamble to the new proposal assumes that key safeguards continue
to apply in the context of the EU common list; and the rules on suspension of
designation and the corollary limits on national designation of ‘safe countries
of origin’, which refer back to the general rules on designation of ‘safe
countries of origin’, expressly continue to apply.
So although it is obviously questionable in principle
both to drop the requirement that the common EU list is subject to the same
conditions as national lists (a blatant double standard), without even
replacing it, and to create a separate rule for candidate countries, the
overall impact of this change is blunted. Nevertheless, it would be better in
principle to retain a single common standard for designation of ‘safe countries
of origin’; it is particularly objectionable to have double standards compared
to national lists and even more so, no standards at all for the EU list.
The Commission’s lack of transparency of its sources
for assessing the group of countries to go on the common list is likewise
questionable; and its treatment of the candidate countries is simply opaque.
The countries concerned are not even named, and the Commission offers no interpretation
of its proposed new criteria relating to these countries, or a discussion of how
they would apply in practice. (The application of the ‘low recognition rate’
rules is also opaque, in the absence of a simple list of the recognition rates
by country)
All in all, this proposal is both murky and unprincipled:
an unimpressive start to the next phase of EU asylum law.
