'Safe Countries Of Origin': Assessing The Novel Proposal

Steve Peers

Among the large number of new initiatives taken yesteryear the European Union Commission regarding immigration as well as asylum terminal week, iii of them are proposals for binding measures: a instant temporary mensurate relocating asylum-seekers; a permanent scheme of relocation for asylum-seekers; as well as a Regulation setting out a mutual listing of ‘safe countries of origin’ – which would consist of the Western Balkans countries as well as Turkey. I volition survive commenting on the relocation proposals inwards future, but for at nowadays I desire to examine the ‘safe dry ground of origin’ rules.

It should survive noted that the UK, Republic of Ireland as well as Kingdom of Denmark receive got an opt-out from all of these measures, as well as the European Parliament (EP) is exclusively consulted on the temporary relocation proposal. However, the EP has its usual articulation decision-making role on the proposals for a permanent relocation system, as well as for the ‘safe dry ground of origin’ list.

Background: the ‘safe dry ground of origin’ thought

Two fundamental misconceptions most the ‘safe dry ground of origin’ concept must survive dispelled at the outset. First of all, designating a dry ground equally a ‘safe dry ground of origin’ doesn’t hateful that all asylum applications from that country’s citizens are automatically refused. Rather it creates a presumption of security – but that presumption is rebuttable.  It volition probable survive harder to rebut that assumption, since such applications are ordinarily fast-tracked (more on the details below). But it is non absolutely impossible.

Secondly, the ‘safe dry ground of origin’ concept is different from a ‘safe 3rd country’ concept. Influenza A virus subtype H5N1 ‘safe dry ground of origin’ is a dry ground where its ain citizens are to a greater extent than oftentimes than non not persecuted, whereas a ‘safe 3rd country’ is a dry ground where an asylum-seeker who came from a different dry ground should (in the sentiment of the dry ground applying that rule) have applied for asylum instead.

The 2 rules receive got unlike consequences: the ‘safe dry ground of origin’ dominion goes to the pump of the Definition of refugee, because it concerns the handling of the asylum-seeker inwards the dry ground of origin. But the ‘safe 3rd country’ dominion doesn’t address the enquiry of whether the asylum-seeker was prophylactic inwards the dry ground of origin: it just asserts that the asylum seeker should receive got applied for asylum somewhere else. It’s for that other State to create upwards one's hear whether or non the asylum-seeker has sufficient grounds to survive considered a refugee, or to larn just about other cast of protection. For that reason, European Union asylum police push clitoris classifies the ‘safe 3rd country’ dominion equally a dominion determining the admissibility of an asylum application, non its merits.

Are the 2 groups of countries the same? Not necessarily. It may audio strange to say that a dry ground tin survive ‘safe’ inwards i context, but non ‘safe’ inwards another. But let’s seat it just about other way: tin nosotros imagine that a State mightiness care for its ain citizens reasonably well, but care for asylum-seekers badly? I’ll render below to the enquiry of whether just about of the key Western Balkans states tin inwards fact survive considered ‘safe 3rd countries’ equally good equally ‘safe countries of origin’.

Even earlier European Union asylum police push clitoris was commencement adopted, just about countries had their ain national version of the ‘safe dry ground of origin’ concept. The first-phase European Union asylum procedures Directive, adopted inwards 2005, seat inwards identify a minimum grade of harmonization for the concept. It specified (in an Annex) that these were countries where at that spot was:

“generally as well as consistently no persecution equally defined inwards Article nine of Directive 2004/83/EC [the first-phase qualification Directive, defining refugee as well as subsidiary protection status], no torture or inhuman or degrading handling or penalization as well as no threat yesteryear argue of indiscriminate violence inwards situations of international or internal armed conflict.

In making this assessment, work organization human relationship shall survive taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws as well as regulations of the dry ground as well as the mode inwards which they are applied; (b) observance of the rights as well as freedoms set downward inwards the European Convention for the Protection of Human Rights as well as Fundamental Freedoms and/or the International Covenant for Civil as well as Political Rights and/or the Convention against Torture, inwards special the rights from which derogation cannot survive made nether Article 15(2) of the said European Convention; (c) honour of the non-refoulement regulation according to the Geneva Convention; (d) provision for a scheme of effective remedies against violations of these rights as well as freedoms.”

The Directive also allowed Member States to designate part of a dry ground equally safe, or to maintain pre-existing national rules which had a lower standard. It also specified that to apply a ‘safe dry ground of origin’ rule, Member States had to ‘have regard to the legal situation, the application of the police push clitoris as well as the full general political circumstances inwards the 3rd dry ground concerned’. Their ‘assessment of whether a dry ground is a prophylactic dry ground of origin’ had to ‘be based on a make of sources of information, including inwards special information from other Member States, the UNHCR, the Council of Europe as well as other relevant international organisations’.

As noted above, the listing could exclusively create a presumption of safety. More precisely, the Directive stated that the presumption could exclusively apply if the asylum-seeker ‘has non submitted whatever serious grounds for considering the dry ground non to survive a prophylactic dry ground of rootage inwards his/her special circumstances as well as inwards price of his/her qualification equally a refugee inwards accordance alongside Directive 2004/83/EC’. Member States were also obliged to ‘lay downward inwards national legislation farther rules as well as modalities for the application of the prophylactic dry ground of rootage concept’.

The Directive allowed (but did non require) ‘safe dry ground of origin’ applications to survive fast-tracked. In that case, spell all the basic procedural rights nevertheless applied inwards principle, Member States had an alternative to skip a personal interview, as well as at that spot were deadlines for decision-making as well as appeals inwards national police push clitoris which made it much harder for applicants to brand their case. It was to a greater extent than probable that appeals would non receive got suspensive effect (allowing the asylum-seeker to remain on the territory during the appeal) inwards such cases.

At the terminal infinitesimal spell negotiating this Directive, a grouping of larger Member States decided it would survive a proficient thought to receive got a mutual listing of ‘safe countries of origin’ – over 10 years ahead of the Commission’s recent proposal. But they as well as then squabbled for eighteen months over which States should survive on this mutual listing (EU asylum police push clitoris decision-making as well as then had to survive unanimous). They eventually gave upwards agreeing the listing direct away, but left a clause inwards the Directive allowing for the possibility of adopting a mutual listing inwards future. That clause was inwards plough challenged successfully yesteryear the EP earlier the CJEU; the Court struck downward the clause on the grounds that whatever such mutual listing could exclusively survive adopted yesteryear way of a legislative or ‘comitology’ procedure, non the promotion hoc physical care for that the Council had made up.

When it came to the second-phase procedures Directive, which was adopted inwards 2013 as well as has applied to all asylum applications made since July 20 2015, at that spot was no involvement inwards returning to the concept of a mutual list. The basic criteria for designating a ‘safe dry ground of origin’ remain the same, but the possibilities of keeping pre-existing lower standards, or of designating role of a dry ground equally ‘safe’, were dropped. (However, it’s nevertheless possible, nether the qualification Directive, to struggle that an asylum-seeker could receive got fled to security inside his or her ain country). The safeguards for individuals to rebut the presumption were retained. It’s nevertheless possible to fast-track a ‘safe dry ground of origin’ application, but the alternative to skip the personal interview was dropped. Finally, although the second-phase Directive at nowadays allows applicants inwards regulation to remain pending the final result of an appeal, it’s also possible for Member States to derogate from this dominion inwards ‘safe dry ground of origin’ cases (as good equally just about others), equally long equally the applicant has the correct to challenge his or her removal earlier a courtroom first.

The Commission proposal

The Commission suggests that all Western Balkans states as well as Turkey survive listed equally ‘safe countries of origin’. This would apply nearly right away (twenty days afterwards publication of the Regulation). Member States would nevertheless receive got the alternative to listing other countries equally ‘safe countries of origin’ pursuant to the procedures Directive, which would exclusively survive amended inwards monastic enjoin to insert cross-references to the novel Regulation. The private safeguard (the possibility of rebutting the presumption) would remain. Member States would non explicitly survive required to fast-track applications from these countries equally a consequence, but it’s probable that most or all of them would.

The Commission has made this proposal because at that spot has been a precipitous growth inwards the number of asylum-seekers from the Western Balkans inwards the terminal pair of years, as well as at that spot has been a high charge per unit of measurement of refusals of applications from these countries. Further prove of concern most this number is a study from the European Asylum Support Office (EASO) on applications from the Western Balkans, lately updated here, as well as the conclusions of the JHA Council inwards July, which urged all Member States to consider listing Western Balkans states equally ‘safe countries of origin’. However, it’s obvious that this concern did non extend to applications from Turkish nationals; the thought of including Turkey on the listing of ‘safe countries of origin’ emanates from the Commission.

Are these countries genuinely ‘safe’? That’s the million-dollar question. The Commission answers it inwards role yesteryear to a greater extent than oftentimes than non assessing the existence of human rights protections inwards the national legal order. It also quotes statistics most the success charge per unit of measurement of asylum applications, as well as the number of times that the dry ground concerned has been condemned yesteryear the European Court of Human Rights inwards 2014 for breaches of human rights. For comparison’s sake, hither are those statistics inwards i place:

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 lxx successful applications

Kosovo: non political party to ECHR; 6.3% asylum success rate, or 830 successful applications

Montenegro: 1/447 ECHR applications; 3.0% asylum success rate, or twoscore 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 obvious at commencement sight that i of these States is non similar the others. Turkey has over 5 times the number of ECHR breaches equally the next-highest State (Serbia). This tin arguably survive accounted for yesteryear Turkey’s bigger size – although inwards fact at that spot are to a greater extent than ECHR applications against Serbia, so the gap inwards the rate of breaching the ECHR is fifty-fifty bigger inwards pct terms.  More significantly (because non every breach of the ECHR is an indication of persecution), the charge per unit of measurement of successful asylum claims from Turkish nationals is iii times the charge per unit of measurement of the next-highest State (Albania). Moreover, the number of asylum claims from Turkey (just over 1000 inwards the whole year) does non cry for a systemic problem.

It follows that Turkey obviously does non belong on the mutual listing of countries which all Member States tin consider ‘safe’. In fact, it in all likelihood doesn’t belong on whatever Member State’s national listing either. Indeed, Turkey isn’t on whatever national list, according to the recent report on European Union asylum policy from AIDA, a database on asylum policy (see page 78). Leaving Turkey off the listing does non hateful that its application for European Union membership should survive shelved: the European Union should brand clear that this physical care for is a long i during which would-be Member States tin amend their human rights records.

As for the other countries on the proposed list, the Western Balkans States indeed receive got an overall depression charge per unit of measurement of successful applications, equally good equally a high number of applications (Turkey has neither). According to the EASO report, exclusively 4% of applications out of nearly 100,000 were successful inwards 2014. In the context of rattling high push clitoris per unit of measurement area on many Member States’ asylum systems equally a whole, it’s slowly to view why the thought of a mutual listing makes feel inwards price of efficiency.

But at that spot is a postulate to residuum efficiency alongside humanity: the statistics exhibit that at that spot are nevertheless thousands of applicants from these States who demonstrated a genuine postulate for protection. The Commission’s explanatory memorandum notes that inwards all U.S.A. of America concerned, at that spot was persecution on LGBTI grounds, equally good equally persecution inwards just about States against Roma, women or children (among others). So the best way frontwards is to strengthen the private safeguards to ensure that those alongside genuine needs for protection don’t receive got their application just ignored. I receive got suggested just about amendments to this effect inwards the Annex.

Furthermore, the proposal could larn farther inwards ensuring harmonisation, inwards 2 ways. First of all, inwards lite of the length of procedures referred to inwards the EASO report, it could innovate deadlines to create upwards one's hear on applications as well as appeals from the nationals of the countries concerned, plain of study to 2 procedural safeguards: setting out a minimum fourth dimension to appeal equally good equally a maximum time, as well as exempting those who receive got submitted just about prove to rebut the presumption from whatever fast-track process.

Secondly, equally nosotros say inwards English, what’s sauce for the goose is sauce for the gander. Greater harmonisation inwards the involvement of the efficiency of asylum systems should survive balanced alongside greater harmonisation to ensure that Member States practise non breach the EU’s minimum standards, as well as to ensure that the standards themselves practise non breach human rights law. I receive got thus suggested amendments inwards the Annex to that effect, so that the Commission tin overrule Member States which receive got applied the concept of ‘safe 3rd country’ or ‘safe dry ground of origin’ to cases where it is clearly non justified. (It would nevertheless survive possible for national courts to overturn such decisions too). Such decisions are also probable to divert asylum applicants toward Member States other than the i which would survive responsible for their application, distort recognition rates of asylum-seekers, as well as run a jeopardy damage for the persons concerned. In particular, the AIDA study raises questions most whether Serbia could survive considered a ‘safe 3rd country’, as well as concludes that ‘international asylum standards are non currently met inwards FYROM’.

Annex

Proposed amendments to the asylum procedures Directive

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

“the applicant comes from a dry ground which satisfies the criteria to survive considered a prophylactic dry ground of rootage inside the pregnant of this Directive, except where Article 36(3) applies”

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

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

“the applicant comes from a dry ground which satisfies the criteria to survive considered a prophylactic dry ground of rootage inside the pregnant of this Directive, except where Article 36(3) applies”

This exempts genuine claims yesteryear unaccompanied minors from the countries concerned from existence rejected inwards a special edge physical care for (new text underlined).

Amend Article 31(8)(b):

“the applicant is from a prophylactic dry ground of rootage inside the pregnant of this Directive, except where Article 36(3) applies”

This exempts genuine claims from the countries concerned from existence fast-tracked inwards full general (new text underlined).

Add a novel Article 31(10):

“In the example of an application made yesteryear a national of a dry ground listed inwards the Annex to Regulation xxx/2015, they shall create upwards one's hear on the application inside iii months of the conclusion to apply the ‘safe dry ground of origin’ concept, unless the applicant has submitted prove that he or she is role of a grouping that faces persecution or serious damage pursuant to Article 36(3)”.

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

Add a novel Article 36(3):

“Member States shall non brand a conclusion to apply the ‘safe dry ground of origin’ concept to an application until they receive got considered all prove submitted yesteryear the applicant, including whatever prove that the applicant is role of a grouping that faces persecution or serious damage according to the sources of information referred to inwards Article 37(3).”

Article 39 should survive repealed

The thought of a ‘super-safe 3rd country’ from which applications are non considered at all is incompatible alongside human rights law.

New Article 39:

“If a Member State has listed a 3rd dry ground equally a ‘safe dry ground of origin’ pursuant to Article 37 as well as Annex I, or a ‘safe 3rd country’ pursuant to Article 38, but an scheme concerned alongside the protection of human rights submits prove to the Commission that the designation is non compliant alongside the relevant criteria, the Commission shall examine the issue. It may also examine such an number on its ain initiative.

The Commission shall inform the relevant Member State, as well as inquire it for its observations. Within i calendar month of the get of the assessment, the Commission shall create upwards one's hear on the compatibility of the Member State’s conclusion alongside the criteria inwards this Directive. If the Commission’s sentiment is negative, the Member State shall withdraw the relevant measure.”

This sets out controls of Member State abuse of the ‘safe’ dry ground concepts. 

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

“In the example of an application made yesteryear a national of a dry ground listed inwards the Annex to Regulation xxx/2015, Member States shall set upwards a fourth dimension trammel of betwixt i calendar week as well as i calendar month to corporation an appeal. Member States shall create upwards one's hear on the appeal inside iii months, unless the applicant has submitted prove that he or she is role of a grouping that faces persecution or serious damage pursuant to Article 36(3)”.

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

Add the next words to the halt of Article 46(6)(a):

“…or Article 36(3)”.

This ensures a correct to remain during an appeal for ‘safeguard’ cases.

Barnard & Peers: chapter 26

Photo credit: internationalliving.com

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