What is wrong with the decision to exclude some Ukrainians from temporary protection?

 

 

Dr. Meltem İneli Ciğer, Associate Professor of International Law, Suleyman Demirel University Faculty of Law, Türkiye; Honorary Fellow, School of Law and Social Justice, University of Liverpool

With comments from Professor Steve Peers, Law School, Royal Holloway University of London

 

Photo credit: President of Ukraine, via Wikimedia Commons

 

 

Nearly every year since I started teaching temporary protection and the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive) at the Odysseus Summer School in 2022, a familiar pattern has emerged. Each year, while updating my PowerPoint slides, the European Commission adopts a proposal to extend the temporary protection regime implemented for Ukrainians fleeing the full-scale Russian invasion. I usually read and incorporate this new development, either the Commission Proposal or the adopted Council Implementing Decision, when I am flying to Brussels. This year is no exception.

 

This year’s Proposal for a Council Implementing Decision (COM(2026) 345 final) marks a departure from previous practice. Aside from proposing to extend temporary protection for an additional year, namely until 4 March 2028, the Commission is proposing, for the first time, to restrict the scope of temporary protection for a specific subset of newcomers. In particular, Article 2 of the Proposal targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack explicit, official authorisation from the Ukrainian authorities to leave the country. By proposing this conditionality, the Commission is effectively linking eligibility for temporary protection to the enforcement of a home state’s conscription laws.

 

I have written here and here why I believe these yearly extensions run contrary to the Temporary Protection Directive itself and the risks they bring. This year, however, I will do something different. Since over the years, I have covered the legal problems with yearly extensions, I want to focus specifically on the legal questions brought by the new proposal, namely, those relating to the new restrictions it introduces.

 

Here, I will pose four main legal questions relating to these new restrictions and give my opinion on them. I should mention that the idea to write this post emerged from an exchange on LinkedIn, where I am a somewhat active user, and the comments I received from Steve Peers. I asked Steve to include his answers to these questions, to provide a ‘devil’s advocate’ perspective on some points. Finally, I should mention the sources that can help this analysis. You can watch the Commission’s official press conference video, where some similar questions were posed to the Commission. Additionally, a recent Council of Europe report explicitly warns about the human rights risks of the proposed restriction of scope. Of course, these legal questions will only arise if the proposal is adopted as it is. What are they?

 

Update: The European Commission proposal was adopted by the Council as Implementing Decision (EU) 2026/1912 on 30 July 2026 and published on 4 August 2026. The Implementing Decision (EU) 2026/1912 extends temporary protection for displaced Ukrainians (those indicated in Article 2 of Council Implementing Decision (EU) 2022/382) (Article 1). While the core initiative to condition temporary protection on compliance with Ukrainian military obligations was included in the final text, the Council introduced several operational additions. First, temporary protection will now only be granted to new arrivals who prove compliance with, or exemption from, their military obligations in Ukraine (Article 2(1) & Recital 16). The decision explicitly retains temporary protection status for individuals who enjoyed temporary protection in a Member State on or before 30 July 2026 and continuously maintain that status. The new restriction applies solely to new applicants from 31 July 2026 onwards (Article 3). Second, the Council clarified how compliance must be proved. Applicants bear the burden of proof, which can be satisfied via an official passport exit stamp, border-crossing records, or digital certification through Ukraine’s Reserv+ application (Recital 18). Third, the Decision explicitly notes that draft evasion and desertion do not, by themselves, constitute grounds for refugee status or subsidiary protection under international standards (Recital 8). Finally, the Council recommends that Member States must reject new residence permit applications under Article 8(1) of the TPD if the applicant already holds a permit in another Member State (Recital 5 and Recital 6).

 

Question 1: Is restricting the scope of temporary protection and excluding newly arriving military-age men from Ukraine discriminatory?

Meltem: Yes, there is a very strong legal argument that this specific restriction is discriminatory under both EU and international human rights frameworks. First, let us look at who is excluded: Article 2 of the proposal explicitly targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack official authorisation from the Ukrainian authorities to leave the country. Because martial law and mobilisation frameworks in Ukraine predominantly apply to adult males aged 18 to 60, this measure selectively excludes military-age men from receiving temporary protection in the EU in future.

Article 21 of the Charter of Fundamental Rights strictly prohibits any form of discrimination based on sex or nationality. By implementing a rule that disproportionately and systematically strips temporary protection eligibility away from mostly adult men, the proposal introduces a gender-discriminatory measure. Treating newly arriving men less favourably than women fleeing the same conflict zone creates direct friction with this principle of equal treatment. This is further reinforced by Article 14 of the European Convention on Human Rights (ECHR), which prohibits sex-based discrimination when read alongside the protection of fundamental rights under Article 3 or Article 8 ECHR (cf para 30 here). Of course, although these excluded individuals will retain their absolute right to apply for asylum under Article 18 of the Charter, this route opens up further complex legal questions. Most notably, what happens if their international protection claim is rejected?

If a Member State examines an individual’s asylum (ie international protection) claim (which can still be made, according to the temporary protection Directive, even if temporary protection is refused), and concludes that evading conscription under these specific circumstances does not meet the high threshold for refugee status or subsidiary protection, the individual is left in a dangerous legal vacuum. Because they are barred from registering as temporary protection beneficiaries by this new proposal, this may expose them to the immediate risk of a return decision. 

Update: This legal issue persists. I still argue that linking eligibility for temporary protection to a third state’s military conscription rules creates direct friction with the principle of non-discrimination. Whilst Recital 22 notes that “[t]his Decision respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union”, and Article 2(1) explicitly states that the condition applies “[w]ithout prejudice to Union law and fundamental rights”, it remains unclear how the resulting differential treatment can be justified. The Decision not only creates a distinct divide between newly arriving individuals, who must present proof of compliance with military obligations and those who enjoyed temporary protection in a Member State on or before 30 July 2026 and continuously retain that status, but it also creates a division between individuals subject to military obligations (predominantly adult males aged 18 to 60) and all other newly arriving displaced persons. The Council explicitly relies on Ukraine’s evolving defence and conscription needs (Recitals 13, 16, and 17) as the sole justification for this conditionality. However, can a third country’s military needs legitimately justify gender-disproportionate and selective treatment under EU fundamental rights standards? That for me remains highly doubtful. In a weak attempt to counter the issues concerning gender discrimination, Recital 20 notes that:

“It is possible that Ukrainian nationals who are not subject to conscription have military obligations, irrespective of their age or gender, because they enlisted or otherwise due to responsibilities related to military activities.”

So, the Council frames military compliance as a gender-neutral conditionality, which remains unconvincing. In practice, martial law and statutory conscription in Ukraine predominantly apply to adult males aged 18 to 60. Pointing to a very small minority of women who voluntarily enlist or hold specific military roles does not alter the reality that this new restriction on scope overwhelmingly impacts military-age men.    

Although Recital 8 recalls that temporary protection does not prejudice the right to apply for international protection, it explicitly adds that “in accordance with international standards, desertion and draft evasion are not considered, by themselves, to be grounds for international protection”. Newly arriving individuals with military obligations who apply for international protection but lack distinct personal circumstances justifying refugee status or subsidiary protection risk having their claims rejected and being issued a return decision. Bear in mind, the recognition rate for Ukrainians (all Ukrainians irrespective of military obligations) was around 45% in May 2026, according to the EUAA. As Steve pointed out, Member States remain bound to assess individual non-refoulement risks and ongoing conflicts and human rights conditions in Ukraine before executing any return decision. However, Member States’ approaches to evaluating such asylum claims and conducting return assessments are likely to diverge significantly in practice.

Steve: A devil’s advocate view: the Charter also provides for possible restrictions of Charter rights in its Article 52, which allows limitations on rights to support ‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. The argument here is that the EU is seeking to support the Ukrainian defence effort, which could be described either as an objective of general interest, or protection of the rights and freedoms of others. The measure is arguably proportionate as long as the return of each Ukrainian citizen in the individual case would not amount to non-refoulement (and only provided that any application for international protection they have made has failed on the merits; the concerns raised about human rights and conscription in Ukraine can obviously be argued in this context). Unlike the Commission’s proposal, the Council decision explicitly confirms the possibility of applying for international protection instead.

One point about the evidence now necessary to show that temporary protection applicants comply with the new rules: the new extension decision refers to Ukrainian controls on exit (‘when leaving’ and ‘a legal departure’); it does not suggest that Member States’ authorities should be filtering Ukrainians as temporary protection applicants at the EU’s external borders.

 

Question 2: Does the Temporary Protection Directive give the Council the power to restrict its scope after four years of its activation?

 

Meltem: No, it does not. Neither Article 5 nor any other provision in the temporary protection Directive (TPD) grants any power to the Council to retroactively alter, narrow, or restrict the objective scope of who qualifies for that protection via a yearly implementing decision. Article 5 is invoked by the Commission in the Proposal to justify restricting the scope of the TPD’s application. However, if you look closely at the TPD, you will see Article 5 is intended to designate the specific categories of persons eligible for temporary protection at the very beginning, when there is a mass influx. It does not give the Council the power to dynamically designate or exclude different groups in subsequent yearly extensions. In my opinion, attempting to introduce new restrictions now is completely contrary to the TPD provisions. These new restrictions essentially introduce new exclusion grounds for temporary protection status. When looking at Article 28 of the Directive, which explicitly sets out the allowed exclusion grounds, it is clear that the new restrictions are also not permitted as additional exclusion grounds.

Update: This statutory concern remains unresolved in the adopted text. In adopting Council Implementing Decision (EU) 2026/1912, the Council explicitly relies on Articles 4(2) and 5(3), point (a) of the TPD as its legal basis. What I have previously argued still applies.

Steve: Again, a devil’s advocate might argue the opposite here – that this is not an issue of a new exclusion from temporary protection (which would definitely need an amendment to the parent Directive to be created), but rather a narrowing of those included by temporary protection. The scope of people included by the current iteration of temporary protection is defined not by the parent Directive, but by the 2022 decision to trigger it in response to the main Russian invasion of Ukraine, which has been amended (to extend its duration) several times already. The parent Directive is silent on the issue of whether the scope of who is covered by temporary protection can be altered (either to narrow it or to widen it) after temporary protection is triggered, but perhaps the earlier CJEU judgment in Kaduna – which accepted that Member States could narrow the scope of any ‘optional’ temporary protection they initially offered on top of the EU minimum if they chose – applies by analogy to EU-wide temporary protection, ie the EU can narrow the scope of temporary protection it initially offered, as long as the parent Directive’s test for terminating temporary protection is met for the specific group of people being removed from the scope of that protection as regards future applications. That test is:

...the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States' obligations regarding non-refoulement.

It might, of course, be argued that this test is not met for men of military age. In any event, the parent Directive’s guarantee that they can apply for international protection at any time, and the Return Directive’s guarantee that they cannot be refouled, have to be satisfied too, on an individual basis.

It might also be argued that since the parent Directive only sets minimum standards, it must remain open to Member States to grant temporary protection to military age men as an option, as long as they are fleeing Ukraine for the same reason as others seeking temporary protection (see the Kaduna judgment by analogy, as regards those who left Ukraine shortly before the main Russian invasion). This might be relevant in particular to Hungary, which has reportedly objected to this aspect of the proposal.

 

 

Question 3: What will happen to the family members of those who fall within the scope of temporary protection in line with Council Implementing Decision (EU) 2022/382 of 4 March 2022?  

 

Meltem: This raises a very messy legal question regarding family unity. Under the initial Council Implementing Decision (EU) 2022/382, family members of Ukrainian nationals, as well as those of third-country nationals holding refugee or equivalent protection status in Ukraine prior to the full-scale invasion, are explicitly included as a core category entitled to temporary protection alongside the principal applicant.  Article 15 of the Temporary Protection Directive sets out mandatory duties for Member States to reunite family members who were separated due to the circumstances of the mass influx. (cf. Milios’s contribution here) The new proposal creates a direct clash between Article 15 of the TPD and the proposed exclusion grounds. If a newly arriving, military-age man leaves Ukraine to join family members who have held temporary protection in the EU since 2022, his exclusion would directly undermine the right to family life and the obligations in the 2022 Decision and the Directive. Conversely, admitting him while excluding single men in identical circumstances introduces severe issues of differential treatment and discrimination.

Update: This tension between family unity obligations and the new eligibility conditionality remains unaddressed in the adopted text. Recital 15 of Council Implementing Decision (EU) 2026/1912 acknowledges that specific categories of eligible persons are determined “in compliance with Article 15 of [the TPD], where applicable”. Yet, this fleeting reference, in my opinion, does not give a clear answer to the question we posed above.

Steve: here I think the devil’s advocate has no good argument to make. Family members of those with temporary protection are entitled to temporary protection, according to the 2022 Decision, and family reunion, according to Article 15 of the parent Directive, unless the criteria for exclusion set out in that Directive (ie security risks and serious crimes, defined similarly to the exclusion clauses in the Refugee Convention) apply.

 

The wording of the new Council Decision, in my reading, excludes family members who have not complied with their military obligations from temporary protection under the 2022 Decision, but leaves open the prospect of them being eligible for family reunion, on the basis of the parent Directive. Although the final Council decision makes only an oblique reference to family reunion under the Directive, this is better than the failure to refer to it at all in the original proposal, and those who seek to rely on this possibility now have a specific provision in the text to point to. This is most likely to be relevant to men whose wives or partners have temporary protection in the EU (for partners, this is subject to the criteria of having a ‘stable relationship’, and that the host Member State treats partners in a ‘comparable’ way to married couples). As Jane Austen might have said, “It is a truth universally acknowledged, that a single man seeking protection from a Russian platoon, must be in want of a wife.”

 

Question 4: Is Recital 5 of the Proposal a mistake or a new interpretation of the Krasiliva case (C-753/23) by the Commission?

 

In the Krasiliva case (C-753/23), the Court of Justice of the European Union (CJEU) confirmed that displaced persons from Ukraine have a right to choose the Member State where they want to apply for temporary protection. However, the Court ruled that national authorities cannot declare a newcomer’s temporary protection registration and resident permit request inadmissible simply because they already applied for a permit in another Member State but have not received it. Interestingly, the Court left open the question whether a person who has received temporary protection status and a resident permit attached to this status in one Member State can apply and be granted temporary protection in another MS.

 

Recital 5 of the Commission Proposal notes “Given that a person can benefit from the rights attached to temporary protection in only one Member State at a time, to ensure that this is the case, and to avoid multiple registrations for temporary protection, Member States should reject residence permit requests made on the basis of Article 8(1) of Directive 2001/55/EC when it is apparent that the person concerned has already obtained a residence permit on that basis in another Member State and therefore is enjoying the rights attached to temporary protection therein, including social assistance. This would be coherent with the judgment of the Court of Justice of the European Union in case C-753/23 and in particular paragraph 30 thereof.”

 

Steve: To my mind, the Krasiliva judgment is ambiguous. The key para in the judgment says that it is “open to the authorities of a Member State to verify, in the course of examining” a temporary protection application, “whether those persons have already obtained a residence permit in another Member State”. This is not explicitly definitive either way. The important point here is the addition of the words in the Commission proposal: “and therefore is enjoying the rights attached to temporary protection therein, including social assistance”, which do not appear in the previous Council decision extending temporary protection. This suggests that if another Member State has granted temporary protection but has not done so correctly, ie does not extend the substantive rights set out in the parent Directive to beneficiaries in practice, another Member State is obliged to consider a temporary protection application from those persons. This would be consistent with CJEU case law on international protection (Ibrahim).

 

Meltem: I believe the Commission adopts a very restrictive reading of the Judgment by noting Member States should reject residence permit requests made on the basis of Article 8(1) of the Directive when it is apparent that the person concerned has already obtained a residence permit in another MS. However, as Steve pointed out, what happens if a person holds TP status in a Member State but is not enjoying the rights attached to temporary protection therein, including social assistance? Then can they apply for temporary protection in another Member State? I think the recital somehow supports this reading. Is this on purpose or a mistake we do not know.

 

Update: Whether the Commission’s original phrasing in draft Recital 5 was a deliberate attempt to safeguard Chapter III rights or merely a drafting oversight will remain unknown. If intentional, the Commission sought to ensure that holding a residence permit on paper in a first Member State would not bar an applicant from seeking protection elsewhere if that initial state failed to provide effective access to core rights, such as housing or social assistance. What is clear, however, is the Council’s intent in the final text. By deleting the “substantive enjoyment” qualification from Recital 5 and adding Recital 6, the Council rejected this flexible reading. Instead, it endorsed a very restrictive interpretation of Krasiliva (Case C-753/23) and wanted no multiple registrations, irrespective of the standard of protection actually delivered on the ground in the first Member State registered.

 

Conclusion

In conclusion, although the Commission's proposal to restrict the scope of temporary protection to help Ukrainian allies is understandable from a policy point of view, it raises many serious legal problems. For the reasons I have outlined, ranging from discrimination and ultra vires overreach to the risk of creating a dangerous legal gap for those whose asylum claims might be rejected, I argue that the Commission proposal should not be adopted as it is.

 

Meltem: While Council Implementing Decision (EU) 2026/1912 formally extends temporary protection until 4 March 2028, the Council did little to alter the substance of the Commission proposal or resolve the legal issues we raised. Apart from technical adjustments, most notably deleting the ‘substantive enjoyment’ clause from Recital 5 to enforce a bar on multiple registrations, the Council left the discriminatory elements intact while pushing the statutory boundaries of Articles 4 and 5 of the TPD. Moreover, the text left the friction with family-unity obligations under Article 15 TPD largely unaddressed.  

 

Steve: the final decision usefully refers both to the family reunion point and the prospects of those with military obligations applying for international protection instead. In the absence of these provisions, Member States might have tried to claim that family reunion or international protection claims by those with military obligations are not possible, but the explicit references in the preamble mean that such point-blank rejections by national authorities are not tenable. On the other hand, the Council’s final version of the Decision rejects the Commission’s apparent attempt to qualify the position on situations where a temporary protection applicant already has temporary protection in another Member State, and this is a questionable interpretation of the case law. In the face of reductions in support for temporary protection beneficiaries in some Member States, it is not impossible to imagine where severe living conditions induce a beneficiary to apply for temporary protection in another Member State. As with the case law on international protection (Ibrahim), a Charter right to do so should be recognised, at the very least.    

The Aleb judgment on ‘safe third countries’ in asylum law: the CJEU’s answer to EU legislative amendments?

 

 

Tamta Gventsadze, PhD candidate in law, UNITUS

Photo credit: Mstyslav Chernov, via Wikimedia Commons

 

Introduction

On February 5, 2026, the Court of Justice delivered its judgment in Case C-718/24, Aleb concerning the interpretation of Articles 33(2)(c), 38 and 46 of Directive 2013/32 in the context of the ‘safe third country’ concept and the right to an effective remedy, Article 47 of the Charter of Fundamental Rights of the European Union.

This analysis examines the Aleb judgment in light of the ‘safe third country’ concept under Directive 2013/32 (Asylum Procedures Directive, APD) and its replacement by Regulation (EU) 2024/1348 (Asylum Procedures Regulation, APR) from 12 June this year. After mapping the factual background and the Court’s clarification of the cumulative safeguards governing the presumption of safety, it then considers the impact of the 2026 amendments and assesses their implications for judicial control and fundamental rights protection.

I. Facts of the Case

The applicant, NP, is a Syrian national and an unaccompanied minor who lodged an application for international protection in Bulgaria on 2 November 2023. During the interview conducted on 1 December 2023, he stated that he had lived in Aleppo (Syria) and had left two to three months earlier with his brothers because of the war. Before “illegally entering the Bulgarian territory” (para. 19), NP stayed in Türkiye for approximately one month, where his brothers remained with three of his sisters who already lived there.

By decision of 18 June 2024, the Chairperson of the Bulgarian National Refugee Agency rejected the application, refusing to grant him both refugee and humanitarian status. The authority accepted that Syria was affected by internal armed conflict and indiscriminate violence and acknowledged that the applicant was exposed to a real threat to his life or person. Nevertheless, it refused to grant protection on the ground that Türkiye constituted a ‘safe third country’ in which the applicant could seek protection. The decision relied, inter alia, on the fact that the applicant had already lived in Türkiye for about a month without suffering harm, had close family members there, and that Syrian nationals in Türkiye benefited from temporary protection and protection against forced return; finally, “their basic needs [were] satisfied” (para. 20).

The referring court expressed doubts as to the compatibility of this approach with Directive 2013/32, especially considering the absence of both a defined methodology for applying the ‘safe third country’ concept and the lack of explicit procedural guarantees under Bulgarian law allowing the applicant to challenge the existence of a sufficient connection with Türkiye (paras 24-26).

II. The Presumption of Safety under Article 38 of the Directive

The judgment deals with the legal nature and limits of the presumption underlying the ‘safe third country’ concept. The Court begins by recalling that the application of Article 33(2)(c) of the APD (ie, providing that asylum applications are inadmissible where the ‘safe third country’ principle is applied) is conditional upon strict compliance with the requirements of Article 38 thereof (ie the definition of ‘safe third country’ and the conditions related to it). In para. 48 of the judgment, it is expressly stated that the conditions laid down in Article 38 are cumulative, with the result that the inadmissibility ground cannot be applied where any one of those conditions is not satisfied.

This formulation makes clear that the presumption of safety is neither automatic nor self-standing, it is legally constructed and constrained by a series of substantive and procedural safeguards (para. 46). More precisely, Article 38(2) requires Member States to regulate the safe third country concept through national law and that the national rules ensure: (i) there is a sufficient connection between the applicant and the third country so that return there is reasonable; (ii) must define a methodology for applying the concept, which includes either a case-by-case safety assessment or the designation of generally safe countries; (iii) must guarantee an individual examination and allow the applicant to challenge both the safety of the third country in their specific circumstances and the existence of the required connection.

Therefore, the key requirement in the safe third country designation is the existence of a “connection” between the applicant and the third country. The Court emphasizes that Article 38(2)(a) obliges Member States to define in national law criteria enabling authorities to determine whether such a connection exists and whether return to that country is reasonable (paras 51–52). Since the Directive does not define “connection,” Member States retain discretion to specify the criteria, but within EU limits.

Importantly, the Court further reiterates its prior case law that mere transit through a third country cannot, on its own, justify the conclusion that return there is reasonable (para. 54). This statement substantially narrows the presumption. It prevents Member States from relying on minimal factual links and requires a qualitative assessment of the relationship between the applicant and the third country, considering factors such as duration and circumstances of stay and family ties. It is evident that the presumption cannot be based merely on the “transit” criterion. Even where national law relies on the notion of “stay,” national courts must assess, in light of all circumstances, whether that stay genuinely establishes a sufficient connection (para. 55).

The Court also addresses national lists of safe third countries. Member States may, in principle, designate safe third countries by general act. However, such designation does not dispense with the obligation to conduct an individual assessment. National law must provide a methodology for a case-by-case evaluation of both the country’s safety for the applicant and the existence of a sufficient connection (para. 65). The presumption must remain rebuttable, and the applicant must be able to challenge the existence of that connection.

The judgment firmly situates the safe third country concept within the framework of effective judicial protection. Article 38(2)(c) must be read in conjunction with the ‘effective remedy’ rights in both Article 46 of the Directive and Article 47 of the Charter (paras 69-74). Even if national law does not explicitly confer such power, a court hearing an appeal must verify whether a sufficient connection exists.

Accordingly, the Court recalls that Article 46(1) of the Directive guarantees a right to an effective remedy in asylum cases and that Article 46(3) requires a full and ex nunc examination of both facts and law in asylum appeals. This standard applies even in inadmissibility cases and does not necessarily require a substantive assessment of protection needs, but it does require full judicial scrutiny of admissibility conditions. Furthermore, Article 47 of the Charter enshrines the principle of effective judicial protection and is directly applicable, thereby requiring national courts to conduct comprehensive review consistent with EU fundamental rights standards.

Therefore, when reviewing a decision declaring an application inadmissible on ‘safe third country’ grounds, national courts must conduct a full and up-to-date examination of whether the third country is safe for the applicant and whether all cumulative conditions, including the connection requirement, are fulfilled (para. 75). The Court thus subjects the presumption of safety to meaningful judicial scrutiny grounded in Article 47 of the Charter.

Finally, the Court confirms that an application may be declared inadmissible on ‘safe third country’ grounds even where the applicant faces a real risk of serious harm in the country of origin (ie, as distinct from the ‘safe third country’). This confirms that the ‘safe third country’ concept functions as a jurisdiction-allocating mechanism rather than as a substantive denial of risk in the country of origin. Precisely because it allows displacement of protection despite such risk, strict compliance with Article 38 safeguards is imperative.

III. Relevant changes of legislative framework

It is further necessary to underline that while the Court has provided meaningful clarifications regarding safe third country concept and judicial protection in light of corresponding provisions under Directive 2013/32 in a few months’ time this instrument will be replaced by another secondary EU legislation in the form of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (already discussed in great detail here).

Upon a comparative assessment of these two contrasting instruments, several illustrative differences emerge between the provisions concerning safety presumptions, and those of appeals.

Article 33 of the APD addresses inadmissible applications, framing them as an exception to the obligation to examine the substance of an application, meaning that Member States are not required to assess the merits of qualification for international protection where one of the exhaustively listed grounds for inadmissibility applies. The list is limited: Art. 33(2) includes protection granted by another Member State, first country of asylum, ‘safe third country’, subsequent applications without any new elements, and applications lodged by dependents who had consented to be included in another application.

Article 38 of the APR restructures this framework, by separating the decision on admissibility from the decision on the merits. Article 39(3) explicitly governs rejection as unfounded following substantive examination pursuant to the ‘Qualifications’ Regulation (EU) 2024/1347. This structural clarification seems to strengthen the distinction between inadmissibility and unfoundedness, which had already been emphasized by the Court.

In addition, relevant to the current analysis, a notable development concerns the first country of asylum and ‘safe third country’ grounds of inadmissibility. In the APD, Article 33(2)(b) and (c) refer to Articles 35 and 38 without expressly conditioning inadmissibility on the likelihood of admission or readmission. The Regulation introduces an explicit safeguard, with Article 38(1)(a) and (b) essentially stating that inadmissibility may apply unless it is clear that the applicant will not be admitted or readmitted to the third country. Therefore, changes regarding admissibility grounds combine expansion with procedural tightening and partial codification of judicial safeguards.

To further detail the elements regarding the concept of ‘safe third country’, it seems clear that the evolution of the rules on this principle from Article 38 of the APD to Article 59 of the 2024 Regulation, especially as amended in 2026, reflects an apparent shift in structure and scope, even if several aspects remain unchanged.

First off, at the level of safety criteria, both instruments require absence of threats to life or liberty on Convention grounds, absence of serious harm, respect for non-refoulement, and protection against removal contrary to international law. The Regulation clarifies the content of “effective protection” through reference to Article 57 and to Regulation (EU) 2024/1347. As defined by Article 57, effective protection can be attained in a country that has ratified and respects the Geneva Convention on Refugee Status, within any permitted reservations or limitations. However, where a geographical limitation applies, or where the Convention has not been ratified, protection must be assessed against minimum criteria of permission to remain on the territory, access to sufficient means of subsistence to ensure an adequate standard of living, access to healthcare and essential treatment, access to education under general national conditions, and the availability of protection until a durable solution is found. Interestingly, these minimum criteria resemble those of subsidiary protection guarantees, but the context refers to international protection.

Secondly, additional significant changes concern Union and national designation mechanisms introduced by the Regulation. Article 59(2) and (3) of the Regulation, which have no previous equivalent in the Directive, allow partial designation for specific territorial parts or identifiable categories of persons and require reliance on a broad range of sources. Importantly, Art. 59(5)(b) explicitly maintained, that the ‘safe third country’ concept may only be applied where “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” (the same standard of ‘reasonable’ connection as employed by the Court in Aleb).

However, the 2026 amendments substantially reshape the connection criterion, by removing it as a mandatory condition and introducing two additional bases. The concept may now apply where the applicant transited through the third country (explicitly opposing to what the Court prohibits in Aleb). It may also apply where an agreement or arrangement exists requiring the third country to examine protection claims. As already wittily named elsewhere, this ‘Rwanda clause’ permits transfer without prior connection or transit. Moreover, the removal of automatic suspensive effect in safe third country appeals in the 2026 amendments seem to further intensify a restrictive shift, although there is still a possibility for requesting a judicial suspension.

The most problematic aspect seems this possibility of transferring an individual to a state where they might have never even been to, but the secondary law would permit it solely due to the existence of an agreement (often in non-legally binding form of MoUs) between a EU Member State or the Union and possibly any third country. It is true that an applicant will maintain a possibility to appeal this decision, however, they might have to first ask for a suspensive effective of the appeal, which further complicates an already arduous procedure. In theory, a person might end up being transferred to such a supposedly ‘safe’ third country before a decision is made upon their request to remain, which could create a rather unclear legal consequence; would a person potentially have to be brought back, shall their appeal succeed? It is true that this particular scenario might be extremely rare in practice, but does this rarity allow for its legality?

Nevertheless, despite this expansion in scope, the APR maintains several core safeguards, explicitly stating that admission or readmission must be ensured and that individual assessment remains required (which could become more restricted in practice). Special guarantees also apply to unaccompanied minors, including best interests and prior assurances of protection; and the ‘Rwanda’ clause cannot apply to unaccompanied minors at all.

As confirmed by the Alace judgment, designations of ‘safe countries of origin’ must remain subject to judicial review under Article 47 of the Charter. The Court held that national courts must be able to examine compliance with material designation criteria and to rely on independent sources of information. This reasoning applies by analogy to ‘safe third country’ designations and considering that the Charter has the same legal value as primary EU law, legislative attempts to narrow judicial review cannot override it.

In this context, the Aleb judgment constitutes an additional message. It reaffirms that application of the ‘safe third country’ concept is subject to cumulative conditions and full judicial scrutiny. Even as the legislature broadens the concept and limits suspensive effect, the Court insists on effective judicial protection and strict assessment of safety criteria.

IV. Concluding Assessment

The Aleb judgment does not abolish the presumption of safety inherent in Article 38 of the Directive. However, it subjects the presumption to cumulative substantive conditions, mandatory individualized assessment, and full judicial review.

In more detail, the ECJ allows that the determining authority may apply the concept of ‘safe third country’ on the basis of information from publicly available sources and rely on a national list of safe third countries, if such exists, but this is only provided that national law also defines the methodology applicable for assessing, on a case-by-case basis, according to the particular circumstances of the applicant for international protection, whether the third country concerned satisfies the conditions for being regarded as safe for that applicant and the possibility for that applicant to challenge the existence of a connection, within the meaning of Article 38(2)(a).

Moreover, the Court’s insistence, particularly in paragraphs 48, 54 and 65 of the judgment, on the cumulative nature of the safeguards, the insufficiency of mere transit, and the necessity of a defined methodology, significantly limits the discretionary space of national authorities. The ECJ reinforces the procedural containment of the ‘safe third country’ mechanism, by linking these cumulative requirements to Article 46 of the Directive and Article 47 of the Charter, and by requiring national courts to verify the existence of a connection even where national law is silent in this regard.

Therefore, the Court ties the existence of the ‘safe third country’ presumption to two co-existing elements: clearly defined methodology underlining individual assessment (which includes the existence of “reasonable” connection between the applicant and the safe third country) and a possibility for judicial review of the connection requirement. It seems evident from this judgment, that the safety presumption, be it national or supranational level, would otherwise be invalid. In a way, Aleb strengthens the doctrinal link between inadmissibility decisions and effective judicial protection. The presumption of safety is permitted, per se, but only as a structured, reviewable and rebuttable legal construction embedded within the broader guarantees of EU fundamental rights law.

The combined effect of Alace and Aleb indicates that the Court of Justice does not seem to be prepared for relaxing the standards governing the designation and review of ‘safe third countries’. Nevertheless, it remains to be seen whether and how the Court will respond to the legislative changes, considering that they aim to abolish the mandatory connection element and restrict safeguards when challenging it.

Asylum Pact 2.0: the EU moves towards more stringent rules on ‘safe third countries’ and ‘safe countries of origin’

 

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.