Admissibility, border procedures and safe country notions

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Jens Vedsted-Hansen
Professor in the Department of Law at Aarhus University
18 Novemmber 2020

1. The different meanings of ‘safe country’

Although only mentioned in a couple of places in the New Pact on Migration and Asylum issued by the European Commission on 23 September 2020, the perception of certain countries as safe for asylum seekers and refugees seems to become increasingly important in EU asylum law and policy as the legislative proposals accompanying the EU Pact attribute significant weight to ‘safe country’ notions in various connections. From these texts it seems clear that the notion of safety will become ever more relevant in both of its traditional meanings: as a reference to the applicant’s country of origin and as a term referring to non-EU countries through which the applicant has transited or previously stayed en route to the external border of the European Union.

The legal contents and implications of the ‘safe country’ notion differ quite significantly between the various legislative instruments, yet its cognitive aspects may appear to be far less different. In reality, the notion of safety is given meaning through its actual usage in specific procedural contexts that may well allude to similar preunderstanding of the notion. The following analysis shall illustrate this with a particular focus on border procedures and admissibility under the EU Pact and its legislative proposals.

The concept safe country of origin relates to the various procedural channels through which asylum applications are being examined on the merits. Historically, this aspect of the ‘safe country’ notion has been linked to the special procedures for ‘manifestly unfounded applications’ or other types of accelerated asylum procedures. Such procedures were gradually introduced during the 1980s and 1990s, first with reference to the UNHCR Executive Committee in 1983 (Conclusion No. 30) and later by the pre-Maastricht EC Council’s 1992 London Resolution on Manifestly Unfounded Applications for Asylum, linking the acceleration of examination procedures to the concept ‘safe country of origin’ through the accompanying Conclusions on Countries in Which There is Generally No Serious Risk of Persecution. The past decades have added to the ‘safe country of origin’ standards as well as to the actual implementation of these standards.

As opposed to the substantive application of ‘safe countries of origin’, the concept safe third country has been increasingly used as an admissibility criterion. This was, and still is, the crucial requirement to be fulfilled in the implementation of pre-procedure returns of asylum seekers from Greek islands to Turkey under the EU-Turkey arrangement of 18 March 2016 that is often considered as a blueprint (Ineli-Ciger and Ulusoy 2020) for the ‘protection elsewhere’ policies now underway as a more general and far-reaching element in the revised CEAS to follow from the EU Pact.

As yet another kind of ‘safe third country’ device employed among EU Member States, the principle of ‘mutual trust’ is being systematically used as a legal basis for presuming the safety of asylum seekers in other Member States, as reflected in the various CEAS instruments and operationalised in the Dublin Regulation. This intra-EU usage of the ‘safe country’ notion is not going to be discussed any further here.

2. Pre-entry screening at external borders: asylum procedure ‘light’?

An overall rationale of the New EU Pact is the need to tackle the changing nature of the migration challenge that purportedly results from the tendency towards mixed migration flows. The EU Pact itself posits that mixed flows of refugees and migrants have meant ‘increased complexity and an intensified need for coordination and solidarity mechanisms’ (p. 3). The Commission elaborates on this in the Proposal for a Screening Regulation by stating that available data demonstrate that the arrival of third-country nationals with clear international protection needs as observed in 2015-2016 has been ‘partly replaced by mixed arrivals of persons’. It is therefore, in the Commission’s view, important to develop a new effective process allowing for better management of mixed migration flows. In particular, it is ‘important to create a tool allowing for the identification, at the earliest stage possible, of persons who are unlikely to receive protection in the EU’ (p. 1).

The proposed Screening Regulation does not include any specific tool for that purpose, however. While the pre-entry screening aims to ensure swift handling of third-country nationals who request international protection at border crossing points (recital 7), it seems unclear whether and how the outcome of the screening will actually contribute to that aim. It therefore has to be analysed in connection with the other legislative proposals.

According to Article 14(2) of the Proposal, the authorities conducting the screening shall, in the de-briefing form provided for by the Regulation, point to ‘any elements which seem at first sight to be relevant to refer the third-country nationals concerned into the accelerated examination procedure or the border procedure’ stipulated by the Amended Proposal for an Asylum Procedure Regulation. In other words, ‘swift handling’ implies that the pre-entry screening will simply be aimed at identifying cases that can be referred to the accelerated or/and border procedures and hence be exempt from the ordinary asylum procedure. The latter is supposed to become accessible only for those applicants with well-founded claims, as explained in the EU Pact (p. 4).

Neither the proposed Screening Regulation nor the annexed standard de-briefing form specifies which types of information should be considered relevant ‘at first sight’ for referral into the various asylum procedures, nor is there any stipulation as to how such information is to be collected and verified. Against this background it is hard to avoid the impression that information may be sought, collected and reported during the pre-screening at external borders that will de facto become decisive to the examination of applicants’ need for protection despite the absence of such legal clarity and procedural safeguards.

The mandatory elements of the proposed pre-screening will be health and vulnerability check, identification, security check and registration of biometric data as well as filling out of a de-briefing form and ‘referral to the appropriate procedure’, i.e. return procedure, accelerated asylum procedure or border asylum procedure (Article 6(6), cf. Article 14). Accordingly, the standard de-briefing form will include information pertaining to irregular entry and itinerary such as countries and places of previous residence, third countries of transit, modalities of transit and assistance provided by facilitators in relation to irregular border crossing (Article 13 and Annex).

Some of this information may be indirectly relevant to the substantive examination of the applicants’ need for protection and thus for channelling cases into accelerated procedures based on their assumed ‘safe country of origin’. Nonetheless, it seems safe to assume that the pre-entry screening will primarily address issues and facts that may provide the basis for considering applications inadmissible on ‘safe third country’ grounds. If implemented in close connection with border procedures on asylum and return, as foreseen by the EU Pact (p. 4), the pre-entry screening seems likely to serve as a device for summary decisions concerning pre-examination return based on inadmissibility grounds as well as for the cursory examination and allocation of cases to normal or accelerated and/or border asylum procedures.

3. Inadmissibility on ‘safe third country’ grounds: second layer of border procedures?

While the proposed Screening Regulation can be considered as purely procedural and organisational, the 2016 Proposal for an Asylum Procedure Regulation and the Amended Proposal for an Asylum Procedure Regulation launched with the EU Pact contain procedural standards based on criteria with a certain degree of substantive content. The operation of these criteria in the context of border control, however, will depend crucially on the organisational arrangements conditioning the implementation of the relevant procedures. There is ample evidence that CEAS standards do not in reality prevent Member States from acting at variance with EU law when exercising border control. Importantly, monitoring and enforcement by the Commission have so far proven insufficient to effectively prevent the infringements, as implicitly recognised by the Commission itself (2015 European Agenda on Migration p. 12 and EU Pact p. 6).

This is to be borne in mind when forecasting the effects on the ground of the procedural standards proposed along with the EU Pact. The border procedure that will be applicable for the examination of asylum applications as well as for carrying out return decisions according to the Asylum Procedure Regulation (Articles 41 and 41 a of the Amended Proposal) may give rise to particular concern in this regard.

One of the key devices in connection with the proposed border procedure is the return of asylum seekers on ‘safe third country’ or ‘first country of asylum’ grounds. Here we shall focus on the former notion that is likely to be the most relevant in practice and the most problematic in principle. While the border procedure as such will be optional for Member States in these cases, the application of the admissibility criteria will be mandatory under the proposed Asylum Procedure Regulation (Article 36). Notably, the requirements for declaring an application inadmissible without any examination of the need for protection are based on the more or less substantiated presumption that a given third country is ‘safe’ for asylum seekers and refugees.

The 2013 Asylum Procedures Directive already lays down fairly modest criteria for applying the ‘safe third country’ notion, requiring that there is no risk of persecution or serious harm in, and no risk of indirect refoulement from, such a country. In addition, there must be the possibility to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention (Article 38). The inadmissibility criteria in the Proposal for an Asylum Procedure Regulation are even weaker as the latter requirement will be modified to the effect that the possibility must exist to receive protection in accordance with the ‘substantive standards’ of the Refugee Convention or ‘sufficient protection’ (Article 45(1)). This apparent expansion of the inadmissibility grounds may expand the scope for political manoeuvre in situations where the solidity of the basis for assuming safety in a third country should be questioned. As is well known, this was indeed the case for returns to Turkey within the framework of the EU-Turkey arrangement of 18 March 2016. It is not hard to imagine future scenarios in which a flexible standard for assessing the ‘sufficiency’ of protection in a third country could be helpful for the purpose of rejecting applications as inadmissible and returning asylum seekers to that country without examining their cases.

The effects of this inadmissibility ground will be crucially dependent on the actual possibility to rebut the presumption of safety and the assumed individual connection to the ‘safe third country’ in question. To the extent admissibility decisions are going to be made in a border procedure that is narrowly connected to, if not de facto coinciding with, pre-entry screening as discussed above, it may prove very difficult to uphold the procedural safeguards necessary to ensure effective access to rebuttal of the presumption of safety.

4. Safe countries of origin: distorting the perception of protection?

It is well established that the ‘safe country of origin’ notion cannot in and of itself justify the rejection of an asylum application. The only legally sustainable impact of the legal concept is that of creating a presumption that the applicant is not in need of international protection for the purpose of channelling the case to an accelerated examination procedure. Like any other presumption, this procedural one has to be rebuttable, and the possibility to rebut the presumption of safety in an applicant’s country of origin must be real and effective. The possibility of rebuttal is clearly reflected in Article 36 of the 2013 Asylum Procedures Directive. Importantly, however, the effectiveness of the access to rebuttal is at risk of being reduced as a consequence of the pending legislative proposals.

Introduced back in 1992, as described above in section 1, the ‘safe country of origin’ notion has become a central part of the CEAS. In the Asylum Procedures Directive it is one of the key grounds for accelerated examination that may take place at the border (Articles 31(8)(b) and 43). In addition, the CJEU has made it clear that this procedural criterion does not in itself constitute discrimination on grounds of applicants’ nationality, provided that the accelerated procedure complies with the basic principles and guarantees set out in the Directive. Nonetheless, the legislative proposals accompanying the EU Pact will raise other and more severe fundamental rights concerns if adopted.

Already the initial Proposal for an Asylum Procedure Regulation contains a provision that will reintroduce the designation of ‘safe countries of origin’ at EU level by way of an EU common list of such countries, including Albania, Bosnia and Herzegovina, Northern Macedonia, Kosovo, Montenegro, Serbia and Turkey (Article 48 and Annex 1). While some of these countries may be rather uncontroversial in this regard, the latter appears highly disputable at least since the Turkish government’s reactions to the military coup d’état that was attempted just two days after the Proposal had been launched in July 2016. The Commission has apparently neither modified this part of the Proposal nor explicitly addressed the question of how it may still be considered compatible with EU fundamental rights.

Furthermore, the Amended Proposal for an Asylum Procedure Regulation launched with the EU Pact will introduce an additional ground for accelerating the examination procedure: the applicant’s origin in a country for which the proportion of decisions by authorities granting international protection is 20% or lower, according to the latest available yearly average Eurostat data. Exceptions are foreseen for situations where a significant change has occurred in the third country concerned since the publication of the relevant data, or where the applicant belongs to a category of persons for whom the proportion of 20% or lower cannot be considered as representative for their protection needs (Article 40(1)(i)).

Leaving aside the apparent contradiction inherent in this exception, which is quite hard to reconcile with the very idea of accelerated procedures, the need for such an acceleration ground is not evident, given the abovementioned grounds that are based on similar considerations. The Explanatory Memorandum presents this proposal as being based on ‘more objective and easy-to-use criteria’ and suggests that the percentage is justified by the significant increase in the number of applications made by applicants coming from countries with a low recognition rate and ‘hence the need to put in place efficient procedures to deal with those applications, which are likely to be unfounded’ (pp. 13-14).

Considering that the proposed acceleration ground, along with the pre-existing criteria, will be mandatory for the channelling of cases into an accelerated examination procedure, and that examination in the border procedure of cases accelerated on this ground will become mandatory as well, the totality of the procedural proposals seems to have the rather clear cognitive implication that many asylum seekers neither deserve nor need to undergo substantive examination in normal asylum procedures with the full scope of guarantees. While such seem likely to become a privilege for only a limited number of asylum seekers, sizeable categories of people will be confronting strong presumptions against their need for protection that will, due to the procedural devices discussed above, become de facto very hard to challenge in the context of border procedures.