Steve Peers* and Emanuela Roman, University of Palermo and Vrije Universiteit Amsterdam**
*Emanuela Roman wrote the sections on ‘safe third country’, ‘super-safe third country’ and ‘first country of asylum’. Steve Peers wrote the rest of the main text and the annexes.
Turkey plays a pivotal role in the EU’s current refugee crisis, hosting over two million Syrian refugees and serving as a transit point for many asylum seekers. A growing number of these individuals travel from Turkey to the Greek islands, contributing to a notable increase in asylum seekers within the EU in recent times. This journey has tragically claimed the lives of many.
To tackle these challenges, the EU and Turkey reached an agreement in November, encompassing various aspects. The primary goal was to enhance the situation for Syrian refugees in Turkey, thereby reducing the factors motivating them to leave, and to return those not requiring international protection to Turkey. However, recent data reveals that the majority of individuals arriving from Turkey are indeed in need of international protection. Approximately 90% of those reaching Greece in December originated from Syria, Iraq, and Afghanistan, countries with high asylum claim acceptance rates.
Consequently, solely returning individuals who do not require international protection would only marginally impact the influx into the EU. Influenced by public sentiment, numerous politicians aim to substantially decrease these numbers. This has led to a new proposal: returning all asylum seekers to Turkey, justifying this by claiming they either already possess protection in Turkey or should pursue it there. This approach would involve classifying Turkey as a ‘safe third country’, resulting in the almost immediate return of any asylum seeker landing on the Greek islands back to Turkey.
This analysis will initially examine the key components of the comprehensive EU/Turkey agreement concerning the refugee crisis. Subsequently, it will delve deeper into the newly proposed plan to send asylum seekers back to Turkey.
The EU/Turkey Agreement
The EU/Turkey agreement involves compromises from both sides. The EU has consented to the following: the initiation of a new chapter in the EU/Turkey accession process, accompanied by preparatory efforts from the Commission regarding additional chapters; a proposition to eliminate Schengen visa requirements for Turkish citizens by October 2016, contingent upon Turkey fulfilling the criteria outlined in the EU’s ‘roadmap’ for visa liberalization; and the establishment of a ‘Refugee Facility for Turkey’, allocating €3 billion to Turkey. The Commission later issued a Recommendation for an EU ‘humanitarian admission scheme’ for Syrian refugees residing in Turkey.
In exchange, Turkey has pledged: to allow the return of non-Turkish nationals to its territory beginning in June 2016; to implement a pre-existing arrangement regarding the status of Syrian refugees in Turkey; and to prevent the departure of non-EU citizens.
Additionally, both parties have agreed to collaborate on areas of shared interest: conducting regular summits (at least twice annually); and enhancing the EU/Turkey customs union to encompass services and investment, with negotiations commencing before the close of 2016.
Further clarity is required regarding several aspects of the agreement. Claims that the deal has ‘fast-tracked’ Turkey’s EU membership are unfounded. Turkey submitted its application for EU membership in 1987, with formal negotiations initiated 18 years later in 2005. In the ensuing 11 years, the EU and Turkey have only reached an agreement on one out of the 35 ‘chapters’ under negotiation. Prior to last year’s agreement, discussions had commenced on 13 chapters; this deal increased the figure to 14. No timeline has been established for initiating talks on the remaining 20 chapters, and the agreement explicitly acknowledges that it does not prejudice the stance of EU member states on the planned ‘preparatory work’. Essentially, the deal implies a sluggish progression for the enlargement negotiations.
Turkish accession to the EU also faces hurdles from the EU side: resistance from several member states (potentially including referendums), and reservations from the European Parliament, which must endorse accession treaties. Moreover, accession would not automatically grant Turkish citizens unrestricted movement within the EU. Recent accession treaties have stipulated seven-year waiting periods before workers from new member states can relocate to existing ones, and the UK, possessing veto power over accession treaties, insists that future expansions must incorporate even lengthier waiting periods.
Regarding the visa waiver, it’s important to highlight that it will only pertain to short-term visas for visiting Schengen states. Consequently, it will not apply to the UK and Ireland, and is not yet applicable to Romania, Bulgaria, Croatia, or Cyprus. Typically, the EU offers visa facilitation (expedited visa issuance with reduced fees) followed by a complete visa waiver to neighboring states that have entered into readmission agreements. As outlined in the EU/Turkey agreement, the waiver is conditional on the third state fulfilling a series of EU-defined prerequisites.
The crux of the refugee crisis lies in the readmission agreement, the reciprocal concession for the visa waiver. The EU/Turkey readmission treaty has been effective since October 2014. While immediately applicable to Turkish citizens, Turkey, similar to other nations signing readmission treaties, negotiated a grace period before it extends to nationals from other countries. This three-year delay was originally scheduled to lapse in October 2017. However, given the perceived migration and refugee crisis, the EU was unwilling to wait that long to request Turkey to accept the return of third-country nationals.
Lastly, the ‘Refugee Facility for Turkey’ aims to mitigate the ‘push’ factors driving departures from Turkey to the EU. Established to support refugees and their host communities, further specifics about the fund’s operation are not yet available.
Before delving into the legal aspects of returning individuals to Turkey, it’s valuable to consider EU policy in this domain. Some critics of EU asylum policy argue for a system resembling Australia’s. As we’ll see, the EU is indeed shifting towards such a model. However, setting aside the desirability of the EU embracing an ‘Australian’ asylum policy for the moment, there are legal, political, geographical, and practical limitations to such an approach.
In essence, Australia intercepts vessels carrying asylum seekers on the high seas (international waters) and arranges for their detention and asylum processing in other nations deemed ‘safe’ by Australia. Furthermore, Australia directly resettles confirmed refugees from third countries (approximately 13,000 annually) as part of its contribution to sharing the burden with countries hosting refugees, the majority of whom reside in developing nations.
Countries deemed ‘safe’ by Australia are under no legal obligation to accept and process these asylum seekers. The UN Convention on Refugees (the ‘Geneva Convention’) does not mandate such an obligation. Even if it did, certain countries involved haven’t ratified the treaty. Consequently, Australia relies on persuading these countries to accept the individuals, a task that often involves covering a significant portion of the associated costs.
How does this compare to the EU? Primarily, the scale differs significantly: 18,000 individuals arrived illegally by sea in Australia in 2012-13, while over a million potential asylum seekers arrived in the EU last year. This is a comparison of vastly different magnitudes. The EU faces a significantly larger number of individuals seeking protection in closer proximity, with shorter distances to travel. Moreover, the absence of ‘high seas’ between Greece and Turkey introduces distinct legal considerations for interceptions. Once potential asylum seekers enter Greek waters, EU law permits them to apply for asylum, and Greece is bound by the European Convention on Human Rights (ECHR) in its treatment of them.
This leads to the next distinction. The Australian constitution offers limited human rights protections, and its High Court recently ruled in favor of the offshore detention policy. Conversely, EU nations are governed by the case law of the European Court of Human Rights (ECtHR), which accepts individual complaints and can issue binding rulings, often critiquing national policies in this area. While Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and allows individual complaints to the United Nations Committee responsible for its interpretation, the Committee’s rulings lack binding authority. When the Committee criticizes Australian asylum seeker policies, which is frequent, Australian politicians essentially disregard the rulings.
Considering the large numbers involved and the legal constraints, the EU must offer substantial incentives to persuade non-EU countries to accept the return of non-citizens who have reached EU territory. At first glance, offering financial aid, visa waivers, and a slightly expedited accession process to secure Turkey’s cooperation on refugees and migrants might seem excessive. However, Turkey is currently under no obligation to accept the return of non-citizens or to prevent their departure. Even if it agrees to accept returns, it could withdraw from the agreement at any time by renouncing the readmission agreement, accepting the potential consequence of reinstated EU visa requirements. Moreover, if utilized effectively, the financial assistance will alleviate the ‘push’ factors driving Syrian refugees towards the EU.
Returning Individuals to Turkey
Turkish Citizens
Under the existing readmission agreement with the EU, Turkey is already obligated to accept back its own citizens. While Turkish citizens in the EU might have grounds to remain under EU immigration and asylum legislation or the EU/Turkey association agreement, they do not possess a general right to free movement within the EU. This right is not expected to be granted before or even well after potential EU membership. Therefore, Turkish citizens in the EU lacking such rights, including rejected asylum seekers, must be returned.
It’s worth noting that the EU Commission has suggested classifying Turkey as a ‘safe country of origin’ for asylum purposes. This implies expedited processing of asylum claims from Turkish citizens, although not automatic rejection. The proposal is contentious and its acceptance remains uncertain.
Non-Turkish Citizens: Irregular Migrants
Turkey is not obligated to accept the return of any non-Turkish citizens until it enacts the relevant obligations outlined in the EU/Turkey agreement, as it has pledged to do. Once implemented, if an individual has not submitted an asylum application and has no other basis for remaining, EU member states will be able to return them to Turkey, provided they can establish the individual’s prior presence in Turkey. Evidence of the person’s crossing from Turkey to a Greek island should suffice.
This equally applies to rejected asylum seekers if their claim has failed on its merits. In other words, if a non-Turkish citizen fails to convince a member state’s authorities or appellate courts that they face persecution or serious harm, they could be sent back to Turkey once the readmission agreement’s scope is expanded.
A more complex question, and the focus of the new proposal, is whether asylum seekers arriving via Turkey can be rejected and returned on the grounds of ‘inadmissible’ applications. It’s crucial to clarify that such rejections wouldn’t be based on an individual’s lack of genuine refugee status, but rather on the assertion that they either could have sought protection in Turkey or already possess such protection. The former represents the ‘safe third country’ concept, while the latter constitutes the ‘first country of asylum’ concept. EU law, specifically the Asylum Procedures Directive, provides comprehensive definitions for both concepts, which will be examined in turn.
Is Turkey a ‘Safe Third Country’?
In a January 2016 interview, Diederik Samsom, leader of the Dutch Labour Party, unveiled a Dutch proposal aimed at drastically curtailing the influx of migrants and asylum seekers entering the EU from Turkey. The proposal, quickly dubbed ’the Samsom Plan’, garnered support from Dutch PM Mark Rutte and several other EU member states, including Germany, Austria, and Sweden.
The plan proposes resettling 150,000 to 250,000 refugees annually from Turkey to participating EU nations, likely under the framework of the Commission Recommendation on humanitarian admission from Turkey. In return, Turkey would be expected to accept the return of all migrants and asylum seekers crossing the Greek-Turkish border irregularly. Samsom envisions swiftly returning these individuals from Greece to Turkey via ferry, placing the responsibility for their reception and asylum processing on Turkey.
This plan hinges on the premise that Turkey can be classified as a ‘safe third country’ – a non-EU nation where an asylum seeker can apply for asylum and access procedures and reception conditions aligned with international and EU law.
Notably, the Samsom Plan closely mirrors a proposal put forth by the European Stability Initiative (ESI), a Southeast Europe-focused think tank, in October 2015. Initially dubbed the ‘Merkel Plan’ due to Germany’s envisioned central role in the resettlement scheme, the proposal advocating for classifying Turkey as a safe third country was further developed into ‘Merkel Plan 2.0’, gathering a ‘coalition of the willing’ around Germany, including the Netherlands. Despite being presented across Europe, the plan only gained widespread attention after Samsom’s interview, leading to its renaming.
What constitutes a ‘safe third country’ in legal terms? Article 38(1) of the Asylum Procedures Directive outlines several legal prerequisites for designating a third country ‘safe’ for asylum seekers:
a) the absence of threats to life and liberty based on race, religion, nationality, belonging to a particular social group, or political opinion;
b) the absence of risk of serious harm, encompassing: the death penalty; torture or inhumane or degrading treatment; or a serious threat to the applicant’s life due to indiscriminate violence during conflicts;
c) adherence to the principle of non-refoulement (prohibition of returning individuals to unsafe countries); and
d) the availability of avenues for applying for refugee status and receiving protection in line with the Geneva Convention.
Article 38(2) also establishes procedural safeguards. A third country’s safety must always be assessed on a case-by-case basis to determine its applicability to an individual applicant’s circumstances. Additionally, applicants must have the right to challenge the ‘safe third country’ designation based on their specific situation. It remains unclear whether an expedited procedure like the one Samsom proposes would allow for such individualized assessments of asylum seekers arriving in Greece from Turkey.
A further practical question concerns the responsible party for these procedures. Considering the challenges faced by Greek authorities in managing the current migrant influx and the known shortcomings of the Greek asylum system, it’s unlikely that they would be equipped to implement a comprehensive readmission plan like the one envisioned by Samsom, even with assistance from Frontex and the European Asylum Support Office (EASO). As previously mentioned, such a plan necessitates individualized examination of each asylum application to avoid violating the prohibition of collective expulsions stipulated in Article 4 Protocol 4 of the ECHR. The European Court of Human Rights (ECtHR) condemned such practices in the landmark Hirsi case, holding Italian authorities accountable for returning intercepted Eritrean and Somali migrants to Libya without granting them the opportunity to seek asylum, a violation of the ECHR. Naturally, the same principle applies to asylum seekers entering the territorial waters or land of an EU member state.
Furthermore, Article 46 of the Procedures Directive grants asylum seekers the right to challenge an inadmissibility ruling based on Article 33(2) in national courts. They can remain in the territory during their initial application and appeal to a court for permission to stay during this process. The ECtHR Grand Chamber, in Hirsi and subsequent case law, affirmed that returns are only permissible after an asylum seeker has had the opportunity to lodge an asylum claim with national authorities and to remain in the territory until an initial decision is made. However, it’s highly improbable that the expedited procedure proposed by Samsom would allow asylum seekers to challenge return decisions in court while respecting all procedural safeguards outlined in the Directive and the ECHR.
Procedural matters aside, the fundamental question remains: Can Turkey genuinely be classified as a safe third country? Does it meet the criteria outlined in the Procedures Directive?
Firstly, despite ratifying the 1951 Geneva Convention and its 1967 Protocol, Turkey imposes a geographical limitation on non-European asylum seekers, recognizing only refugees from Council of Europe member states. This geographical limitation presents the first barrier to seeking asylum in the country.
The situation of Syrians presents a unique challenge. Initially welcomed as ‘guests’, they were later placed under a temporary protection regime, formalized by a Regulation on Temporary Protection only in October 2014. This regime is designed to host Syrians until the conflict’s resolution, after which they may be expected to return to their country of origin. As such, Syrians have residency rights but are denied long-term legal integration prospects. They have limited rights compared to asylum seekers under the ’normal’ procedure, particularly regarding children’s access to education and employment opportunities. While the Turkish government introduced a decision in January 2016 aimed at facilitating Syrian access to the labor market, its practical impact remains to be seen. Crucially, Syrians in Turkey are denied full refugee protection as enshrined in the Geneva Convention. Therefore, it’s arguable that the ‘safe third country’ clause solely applies to countries that have ratified and fully implemented the Geneva Convention.
Secondly, Turkey should uphold the principle of non-refoulement, the prohibition of returning individuals to places where they face persecution, torture, or inhumane or degrading treatment. However, reports indicate Turkey engaged in refoulement and push-back practices throughout the 1990s and 2000s. Notably, in late 2015, Human Rights Watch and Amnesty International denounced a surge in deportations, push-backs, arbitrary detentions, and physical violence targeting asylum seekers attempting to cross the Turkish southern border from Syria or Iraq, or trying to enter Greece from Turkey, both by land and sea. This escalation allegedly coincided with the period leading up to and following the signing of the aforementioned EU/Turkey agreement.
Thirdly, asylum seekers and migrants in Turkey face various challenges that heighten their risk of serious harm. Turkey has a history of mistreating asylum seekers and refugees in detention, with NGOs and the ECtHR documenting and condemning instances of torture, inhumane, or degrading treatment. Moreover, the escalating internal conflict between Turkey and Kurdish rebels poses a threat to asylum seekers and refugees in the country’s southeast, potentially exposing them to indiscriminate violence.
In conclusion, Turkey falls short of fulfilling numerous requirements for ‘safe third country’ designation under the Procedures Directive. While not explicitly stated in the Samsom Plan, it’s worth examining whether a comparable policy could be implemented based on two alternative concepts within the Procedures Directive: ‘European safe third country’ and ‘first country of asylum’. The latter concept will be explored in greater depth.
Is Turkey a ‘Super-Safe’ Third Country?
Although not previously discussed, the Asylum Procedures Directive includes a special category of ‘European safe third country’, often referred to (sarcastically) as the ‘super-safe’ third country concept. This designation allows a member state to forgo full consideration of an asylum application, aligning with the Samsom Plan’s objectives. Article 39(2) of the Directive lays out the criteria for a ‘European safe third country’:
a) ratification and full implementation of the Geneva Convention without geographical limitations;
b) a legally prescribed asylum procedure; and
c) ratification and full implementation of the ECHR.
Although Turkey possesses a legally prescribed asylum procedure, is a signatory to the ECHR (albeit with a high number of ECtHR condemnations), and has ratified the Geneva Convention, it maintains a geographical limitation on the Convention’s application, excluding non-European asylum seekers from refugee status. Consequently, Turkey cannot be classified as a ‘European safe third country’.
Could Turkey be Considered a ‘First Country of Asylum’?
Could the concept of ‘first country of asylum’ be applied to Turkey? Could asylum seekers be returned from Greece to Turkey on the basis of Turkey being their first country of asylum?
Article 33(2)(b) of the Procedures Directive permits a member state to deem an asylum application inadmissible if it considers a non-EU country to be a first country of asylum for the applicant. Article 35 stipulates that a third country qualifies as a first country of asylum in two scenarios:
a) if the applicant has been recognized as a refugee in that country and continues to benefit from that protection; or
b) if the applicant otherwise enjoys sufficient protection in that country, including the safeguard of non-refoulement.
Article 35 clarifies that member states can consider the legal requirements of Article 38(1) when applying this concept, essentially those used to determine a ‘safe third country’. It also emphasizes that asylum seekers can argue against the principle’s applicability to their specific situation. Additionally, they retain the right to appeal under Article 46 of the Procedures Directive and remain in the territory during their application and at least the initial stage of their appeal, as discussed earlier.
Option (a) seemingly pertains solely to obtaining status under the Geneva Convention. Therefore, due to its geographical limitation on the Convention, Turkey cannot be deemed a first country of asylum for non-European asylum seekers. Conversely, option (b) could potentially apply. Theoretically, non-European asylum seekers in Turkey have access to an alternative form of protection: ‘conditional refugee status’ (for those who would qualify as refugees under the Geneva Convention but originate from non-European countries) or EU-inspired subsidiary protection. Furthermore, as previously noted, asylum seekers from Syria are eligible for a distinct temporary protection status.
These three alternative protection forms differ in the level of rights afforded to their beneficiaries, which, in all cases (especially for Syrians under temporary protection), are less comprehensive than those granted to ‘European refugees’. The question arises: can these forms of protection be deemed ‘sufficient’? How can a member state determine the ‘sufficiency’ of protection?
Article 35 offers two points of reference, one mandatory and the other optional. The first is respecting the non-refoulement principle. As a signatory to the ECHR and having incorporated the principle into its national legislation, Turkey is bound by the principle of non-refoulement. However, its historical record of refoulement practices and allegations of a recent surge in push-backs and deportations of Syrians and other asylum seekers raise concerns. Consequently, Turkey doesn’t seem to fully uphold the principle of non-refoulement in practice. Nevertheless, given the requirement for individual assessment of asylum applications, member states might argue that the risk of non-refoulement should be evaluated on a case-by-case basis to ascertain whether a specific applicant enjoys sufficient protection in Turkey.
The second reference point mentioned in Article 35 is Article 38(1). When determining whether a third country qualifies as a first country of asylum, member states have the option to apply the same criteria used for assessing ‘safe third country’ status. As discussed earlier, Turkey seemingly doesn’t meet most of the ‘safe third country’ requirements. Based on this, it could be argued that, generally, it shouldn’t be considered a first country of asylum. However, because this is a discretionary clause (‘may’), member states aren’t obligated to apply Article 38(1) requirements to Article 35 cases and could choose to disregard the potential link between the two concepts.
Therefore, while applying the concept of ‘first country of asylum’ to Turkey appears generally debatable, member states might employ it on a case-by-case basis under option (b). However, doing so would require member state authorities to conduct individualized assessments, carefully considering each applicant’s specific circumstances to determine if they have sufficient protection in Turkey and don’t face the risk of refoulement. As previously mentioned, such individualized examination of all asylum claims, including the right to appeal negative decisions, clashes with the rapid procedure and systematic readmission mechanism proposed in the Samsom Plan.
A Change in EU Law?
The preceding analysis is based on current EU legislation. Of course, the EU retains the ability to amend this legislation through standard procedures or potentially through ’emergency’ measures on asylum under Article 78(3) TFEU. The previous invocation of Article 78(3) for a ‘relocation’ system is currently being challenged by Hungary and Slovakia. The core issue surrounding this provision is whether EU law can be modified (through either means) to establish a ‘return ferries’ process.
The answer is unequivocally no. All EU asylum measures are subject to the general rules of Article 78(1) TFEU: ‘compliance with the principle of non-refoulement’ and acting ‘in accordance with the Geneva Convention…and other relevant treaties’. Furthermore, all EU measures must adhere to the EU Charter of Fundamental Rights, which must be interpreted consistently with the ECHR.
Consequently, the minimum standards established by ECHR case law, as discussed earlier, must be upheld. This implies that revised EU law cannot mandate returning individuals arriving from Turkey without proper individual assessment of their claims that Turkey wouldn’t be safe for them. Additionally, a right to appeal and remain in the country until an initial decision on this matter is reached must be guaranteed. To the extent that the Samsom Plan fails to respect this fundamental core of human rights protection, it would be deemed illegal.
Conclusion
Despite adopting a new, comprehensive EU-inspired asylum law and being a signatory to major human rights conventions like the ECHR, the Refugee Convention, and the Convention against Torture, Turkey’s implementation of its international human rights obligations appears flawed. Notably, the right to asylum in Turkey cannot be considered fully realized, primarily due to its largely dysfunctional asylum system and disparities in access to and substance of protection, particularly affecting Syrian refugees.
Therefore, the Samsom Plan, proposing the systematic return of all asylum seekers from Greece to Turkey in exchange for increased refugee resettlement in Europe, appears not only difficult to implement due to legal and practical hurdles but also based on the dubious assumption that Turkey can soon be classified as a safe third country for refugees and asylum seekers.
Furthermore, it’s regrettable that the EU and Turkey haven’t agreed to fully apply the Geneva Convention within Turkey, and that accountability mechanisms for EU institutions to report on Turkey’s human rights record or detail the utilization of EU funds are lacking.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: insidethegames.biz
**Emanuela Roman is a PhD candidate in Human Rights at the University of Palermo and junior researcher at the Forum of International and European Research on Immigration (FIERI). This article was written during the period she is spending as a visiting researcher at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section. Emanuela would like to thank all her colleagues at the VU Migration Law Section, in particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer and Hemme Batijes for their precious comments and advise. The sole responsibility for the content of this article lies with the authors.
Annex I
Interpreting the ‘safe third country’ clause in the Procedures Directive
As noted before, Article 38 of the Asylum Procedures Directive states that in a safe third country it should be possible for an applicant to “request refugee status and … receive protection in accordance with the Geneva Convention.” This strongly suggests that this applies only to states that have ratified and fully implement the Convention, excluding Turkey.
Firstly, this understanding is consistent with the legislative history of the text. The initial 2002 draft explicitly allowed the clause to apply even if a state hadn’t ratified the Convention. This was revised during negotiations, leading to the final wording requiring status to be granted “in accordance with” the Convention. Attempts by several member states to broaden the clause to encompass alternative protections beyond full Convention refugee status failed.
Secondly, the common interpretation of “in accordance with” implies “in compliance with.” This aligns with the term “refugee status,” as the Geneva Convention’s full title is the “Convention on the Status of Refugees.” Applying for “refugee status…in accordance with the Geneva Convention” becomes nonsensical if the state hasn’t ratified or fully implemented the Convention. While the definition clause refers to member states regarding “refugee” and “refugee status” definitions, this logically shouldn’t apply to Article 38, as it focuses solely on applications in non-EU states.
Thirdly, the a contrario rule supports this interpretation. When the Directive’s drafters intended to include alternative protection forms, they did so explicitly, as in Article 35(b). Admittedly, Article 39, which more directly addresses Turkey’s geographical reservation as a failed condition for the ‘super-safe’ country rule, might suggest otherwise. However, as these a contrario analyses essentially counterbalance each other, the interpretation aligning with legislative history and plain language should prevail.
Similarly, “recognized as a refugee” under Article 35(a) should be understood as referring to Convention refugee status, lacking any indication of an alternative meaning. Conversely, Article 35(b) clearly provides an alternative option for ‘first country of asylum’ designation based on other forms of protection.
Annex II: Legislative history of the ‘safe third country’ clause
The evolution of the ‘safe third country’ clause within the Procedures Directive reveals a complex negotiation process:
Commission proposal, 2002: Explicitly stated in an Annex that a ‘safe third country’ could be a non-signatory to the Geneva Convention.
Council doc 6929/03: Proposed focusing on ‘safe’ country concepts, but this was postponed.
Council doc 7214/03: No changes to the Annex.
Council docs 10064/03 and 10456/03: No changes.
Council doc 10722/03: Minor amendment requiring Cartagena Declaration countries to have procedures aligned with Geneva Convention principles.
Council doc 11108/03: No change.
Council doc 11575/03: Annex slightly shortened.
Council doc 12281/03: Significant shortening of the Annex.
Council doc 12734/03: Simplified Annex, but still allowed ‘safe third country’ designation for non-signatories to the Geneva Convention.
Council doc 13369/03: Same text, but Germany added a reservation linked to the ‘super-safe’ country clause, while Finland proposed deleting the relevant clause.
Council doc 13901/03: Unchanged.
Council doc 13902/03: Unchanged, with the Presidency noting inflexible positions from delegations.
Council doc 14020/03: No change.
Council doc 14182/03: Issue referred to the Council.
Council doc 14330/03: Text unchanged.
Council doc 14686/03: Text unchanged. However, Spain suggested replacing the Annex with a brief, ambiguous ‘safe third country’ description in the main text.
Council doc 14686/03 add 1: Presidency proposed deleting the Annex and adding a vague description to the main text, mentioning the Convention only in the context of non-refoulement.
Council doc 15153/03: Clause moved to the main text, Annex deleted. No change regarding the Convention.
Council docs 15153/03 rev 1 and 2: Amended to include “request recognition and be granted protection by that country or by the UNHCR as a refugee.” Spain aimed to remove “as a refugee,” while Belgium, the Netherlands, and Finland wanted to add an explicit ratification requirement.
Council doc 15198/03: Unchanged.
Council doc 15198/03 add 1: The UK sought to delete the entire sub-paragraph.
Council doc 6871/04: A redraft added a separate clause requiring consideration of Geneva Convention ratification when assessing ‘safe third country’ criteria. The main criteria were modified to “request and be granted protection as a refugee in that country.”
Council doc 6954/04: Unchanged, but the UK, joined by several other countries, wanted to add “or other forms of international protection.”
Council doc 7183/04: Unchanged, but the Netherlands withdrew support for the UK’s position.
Council doc 7184/04: Unchanged.
Council doc 7184/1/04: Unchanged. The UK and Spain proposed changing the criteria to “or another form of status which otherwise offers sufficient protection,” mirroring the final ‘first country of asylum’ clause.
Council doc 7484/04: Facing a deadlock, the Presidency proposed removing the “request and be granted protection as a refugee” clause to reach a compromise.
Council doc 7729/04: No change.
Council doc 8166/04: A redraft retained the “request and be granted protection as a refugee” clause but removed the ratification consideration requirement.
Council doc 8158/04: Same text and reservation as in 7184/1/04.
Council doc 8413/04: Text amended to “the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.” The UK and Spain’s proposal was rejected, and the link to the Geneva Convention was made explicit.
Council doc 8415/04: The UK attempted to change the wording to “in accordance with the principles of the Geneva Convention,” but this was rejected in the final version.