Steve Peers

The EU Commission recently introduced several new immigration and asylum initiatives. Three proposals, in particular, suggest binding measures: a temporary relocation measure for asylum-seekers, a permanent relocation system for asylum-seekers, and a regulation establishing a common list of “safe countries of origin.” This list would include Western Balkan countries and Turkey. This article will focus on the “safe country of origin” rules.

It’s important to note that the UK, Ireland, and Denmark are not subject to these measures. Additionally, the European Parliament (EP) only has an advisory role on the temporary relocation proposal. However, the EP retains its usual joint decision-making power regarding proposals for a permanent relocation system and the “safe country of origin” list.

Understanding the “Safe Country of Origin” Concept

There are two common misconceptions surrounding the “safe country of origin” concept. Firstly, designating a country as such does not automatically lead to the refusal of all asylum applications from its citizens. Instead, it establishes a presumption of safety, which can be challenged. However, it might be more difficult to refute this presumption, as these applications typically undergo expedited processing. Nonetheless, it’s not impossible.

Secondly, the “safe country of origin” concept differs from the “safe third country” concept. A “safe country of origin” generally does not persecute its own citizens. Conversely, a “safe third country” is a country where an asylum-seeker originating from a different country should have sought asylum, according to the country applying the rule.

These two rules have distinct consequences: the “safe country of origin” rule directly relates to the definition of a refugee, as it pertains to the treatment of the asylum-seeker in their home country. However, the “safe third country” rule does not address whether the asylum-seeker was safe in their country of origin; it simply asserts that the asylum seeker should have sought asylum elsewhere. It is the responsibility of that other State to determine if the asylum-seeker has sufficient grounds to be considered a refugee or to receive other forms of protection. Consequently, EU asylum law categorizes the “safe third country” rule as a rule governing the admissibility of an asylum application, rather than its merits.

Are these two groups of countries the same? Not always. While it may seem contradictory, a country can be considered “safe” in one context but not in another. In other words, a State may treat its citizens relatively well but mistreat asylum-seekers. The question of whether some key Western Balkan states qualify as both “safe third countries” and “safe countries of origin” will be addressed later.

Even before the adoption of EU asylum law, some countries had their own national interpretations of the “safe country of origin” concept. The first-phase EU asylum procedures Directive, implemented in 2005, established a minimum level of harmonization for this concept. It specified that these were countries generally free from persecution, torture, inhuman or degrading treatment or punishment, and indiscriminate violence during international or internal armed conflicts.

The assessment of a country’s safety considered factors such as its laws, observance of human rights conventions, respect for the non-refoulement principle, and the availability of legal remedies for rights violations.

The Directive permitted Member States to designate only a portion of a country as safe or maintain pre-existing national rules with lower standards. It also stated that Member States must consider the legal situation, law enforcement, and general political climate in the third country when applying a “safe country of origin” rule. Their assessment of a country’s safety had to rely on various information sources, including data from other Member States, UNHCR, the Council of Europe, and other relevant international organizations.

As previously mentioned, the list could only establish a presumption of safety. Specifically, the Directive stated that this presumption could only apply if the asylum-seeker did not present any substantial reasons why their country of origin should not be considered safe, given their particular circumstances and qualifications as a refugee. Member States were also obligated to outline further rules and procedures for applying the safe country of origin concept in their national legislation.

The Directive allowed but did not mandate expedited processing for “safe country of origin” applications. While all fundamental procedural rights still applied in principle, Member States had the option to forgo a personal interview. National law deadlines for decision-making and appeals made it significantly harder for applicants to present their cases. In such cases, it was also more likely that appeals would not have a suspensive effect, meaning the asylum-seeker would not be permitted to remain in the country while their appeal was pending.

During the final stages of negotiating this Directive, a group of larger Member States decided that establishing a common list of “safe countries of origin” would be beneficial—a decision made over a decade before the Commission’s recent proposal. However, they then spent 18 months debating which States should be included on this common list (EU asylum law decisions then required unanimous agreement). They eventually abandoned the idea of immediately agreeing on a list but included a clause in the Directive allowing for the possibility of adopting a common list in the future. This clause was subsequently challenged by the EP before the CJEU, which struck it down because any such common list could only be adopted through a legislative or “comitology” procedure, not the ad hoc procedure the Council had devised.

When the second-phase procedures Directive, adopted in 2013 and applicable to all asylum applications since July 20, 2015, was introduced, there was no interest in revisiting the concept of a common list. The fundamental criteria for designating a “safe country of origin” remained unchanged, but the options of retaining pre-existing lower standards or designating only a part of a country as “safe” were removed. (However, it’s still possible to argue, under the qualification Directive, that an asylum-seeker could have found safety within their own country). The safeguards allowing individuals to challenge the presumption were retained. Expedited processing of “safe country of origin” applications remained possible, but the option to skip the personal interview was removed. Finally, although the second-phase Directive generally allows applicants to remain in the country while their appeal is pending, Member States can derogate from this rule in “safe country of origin” cases (and some others) if the applicant has the right to challenge their removal in court beforehand.

Evaluating the Commission’s Proposal

The Commission proposes that all Western Balkan states and Turkey be designated as “safe countries of origin.” This designation would come into effect almost immediately (twenty days after the Regulation’s publication). Member States would retain the right to designate other countries as “safe countries of origin” under the procedures Directive, which would only be amended to include cross-references to the new Regulation. The individual safeguard (the right to challenge the presumption) would remain in place. Member States would not be explicitly required to fast-track applications from these countries; however, it’s likely that most, if not all, would do so.

The Commission’s proposal comes in response to a significant increase in asylum-seekers from the Western Balkans in recent years and a high rejection rate for applications from these countries. This concern is further highlighted by a report from the European Asylum Support Office (EASO) on applications from the Western Balkans and the July conclusions of the JHA Council, which urged all Member States to consider listing Western Balkan states as “safe countries of origin.” However, this concern did not seem to extend to applications from Turkish nationals; the idea of including Turkey on the list of “safe countries of origin” originated with the Commission.

Are these countries genuinely safe? The Commission partially addresses this critical question by generally evaluating the presence of human rights protections within the national legal framework. It also cites statistics on the success rate of asylum applications and the number of times the European Court of Human Rights condemned the country in question for human rights violations in 2014. For comparison, here’s a summary of those statistics:

Albania: 4/150 ECHR applications; 7.8% asylum success rate, or 1040 successful applications

Bosnia: 5/1196 ECHR applications; 4.6% asylum success rate, or 330 successful applications

FYROM (Macedonia): 6/502 ECHR applications; 0.9% asylum success rate, or 70 successful applications

Kosovo: not party to ECHR; 6.3% asylum success rate, or 830 successful applications

Montenegro: 1/447 ECHR applications; 3.0% asylum success rate, or 40 successful applications

Serbia: 16/11490 ECHR applications; 1.8% asylum success rate, or 400 successful applications

Turkey: 94/2899 ECHR applications; 23.1% asylum success rate, or 310 successful applications

It’s immediately apparent that Turkey stands out. It has over five times the number of ECHR violations compared to the next highest State (Serbia). This could be attributed to Turkey’s larger size, although Serbia has a higher number of ECHR applications filed against it, making the disparity in the rate of ECHR violations even more significant. More importantly (as not every ECHR violation indicates persecution), the success rate of asylum claims from Turkish nationals is three times higher than the next highest State (Albania). Moreover, the number of asylum claims from Turkey (slightly over 1000 for the entire year) does not suggest a systemic problem.

Therefore, it’s evident that Turkey does not belong on a common list of countries considered “safe” by all Member States. It arguably shouldn’t be on any Member State’s national list. In fact, according to a recent report on EU asylum policy from AIDA, a database on asylum policy, Turkey is not on any national list. Excluding Turkey from the list doesn’t mean its EU membership application should be dismissed. The EU should emphasize that this is a lengthy process, during which aspiring Member States can enhance their human rights records.

Regarding the other countries on the proposed list, the Western Balkan States have a generally low success rate for asylum applications and a high volume of applications (unlike Turkey). The EASO report indicates that only 4% of nearly 100,000 applications were successful in 2014. With the immense pressure on many Member States’ asylum systems, the appeal of a common list from an efficiency perspective is understandable.

However, efficiency must be balanced with compassion. The statistics show that thousands of applicants from these States have demonstrated a genuine need for protection. The Commission’s explanatory memorandum acknowledges that persecution based on sexual orientation and gender identity exists in all of these States, along with persecution of Roma, women, or children (among others) in some States. The best course of action is to strengthen individual safeguards to ensure those with legitimate protection needs are not disregarded. The Annex includes suggested amendments to achieve this.

Furthermore, the proposal could do more to guarantee harmonization in two ways. First, considering the lengthy procedures outlined in the EASO report, it could establish deadlines for deciding on applications and appeals from nationals of the countries concerned. This would be subject to two procedural safeguards: setting a minimum time limit for appeals in addition to a maximum time limit and exempting those who have presented evidence to challenge the presumption from any expedited process.

Second, there’s a need for consistency. Increased harmonization for the sake of asylum system efficiency should be accompanied by greater harmonization to prevent Member States from violating the EU’s minimum standards and ensure that the standards themselves comply with human rights law. Therefore, the Annex proposes amendments to empower the Commission to overrule Member States that have applied the “safe third country” or “safe country of origin” concepts in cases where it is clearly unjustified (national courts could still overturn such decisions). Such decisions are also likely to redirect asylum-seekers to Member States other than the one responsible for their application, skew asylum-seeker recognition rates, and potentially endanger the individuals involved. In particular, the AIDA report raises concerns about whether Serbia can be considered a “safe third country” and concludes that “international asylum standards are not currently met in FYROM.”

Annex

Proposed amendments to the asylum procedures Directive

Amend Article 25(6)(a)(i):

“the applicant comes from a country which satisfies the criteria to be considered a safe country of origin within the meaning of this Directive, except where Article 36(3) applies”

This exempts genuine claims by unaccompanied minors from the countries concerned from being fast-tracked (new text underlined).

Amend Article 25(6)(a)(ii):

“the applicant comes from a country which satisfies the criteria to be considered a safe country of origin within the meaning of this Directive, except where Article 36(3) applies”

This exempts genuine claims by unaccompanied minors from the countries concerned from being rejected in a special border procedure (new text underlined).

Amend Article 31(8)(b):

“the applicant is from a safe country of origin within the meaning of this Directive, except where Article 36(3) applies”

This exempts genuine claims from the countries concerned from being fast-tracked in general (new text underlined).

Add a new Article 31(10):

“In the case of an application made by a national of a country listed in the Annex to Regulation xxx/2015, they shall decide on the application within three months of the decision to apply the ‘safe country of origin’ concept, unless the applicant has submitted evidence that he or she is part of a group that faces persecution or serious harm pursuant to Article 36(3)”.

This fast-tracks a decision, except for ‘safeguard’ cases.

Add a new Article 36(3):

“Member States shall not make a decision to apply the ‘safe country of origin’ concept to an application until they have considered all evidence submitted by the applicant, including any evidence that the applicant is part of a group that faces persecution or serious harm according to the sources of information referred to in Article 37(3).”

Article 39 should be repealed

The idea of a ‘super-safe third country’ from which applications are not considered at all is incompatible with human rights law.

New Article 39:

“If a Member State has listed a third country as a ‘safe country of origin’ pursuant to Article 37 and Annex I, or a ‘safe third country’ pursuant to Article 38, but an organisation concerned with the protection of human rights submits evidence to the Commission that the designation is not compliant with the relevant criteria, the Commission shall examine the issue. It may also examine such an issue on its own initiative.

The Commission shall inform the relevant Member State, and ask it for its observations. Within one month of the start of the assessment, the Commission shall decide on the compatibility of the Member State’s decision with the criteria in this Directive. If the Commission’s view is negative, the Member State shall withdraw the relevant measure.”

_This sets out controls of Member State abuse of the ‘safe’ country concepts. _

Add a new sub-paragraph to Article 46(4):

“In the case of an application made by a national of a country listed in the Annex to Regulation xxx/2015, Member States shall set a time limit of between one week and one month to lodge an appeal. Member States shall decide on the appeal within three months, unless the applicant has submitted evidence that he or she is part of a group that faces persecution or serious harm pursuant to Article 36(3)”.

This fast-tracks an appeal, except for ‘safeguard’ cases.

Add the following words to the end of Article 46(6)(a):

“…or Article 36(3)”.

This ensures a right to stay during an appeal for ‘safeguard’ cases.

Barnard & Peers: chapter 26

Photo credit: internationalliving.com