The list of safe countries, a long discussion never ended

(BRUSSELS2) It was in Tampere, in 1999, more than 15 years ago that Europe decided to define a new, comprehensive asylum and immigration policy. The objectives set at the time are still not achieved today!

After the Tampere summit in 1999, several draft texts were quickly presented by the European Commission, one of which provided for the establishment of a list of safe countries, making it possible to speed up, or even automate, the examination of asylum applications. A common list that will never see the light of day... as the Member States are divided and the European Parliament opposed to the procedure. Attention ! a distinction is made between safe third countries (1) and safe countries of origin (2).

For starters, 5 years of discussion without a list

En September 2000, the Commission is proposing a directive laying down the conditions for granting and withdrawing refugee status to asylum seekers. The discussion is tough. The subject is (already) very sensitive. Although the ministers were able to agree on the main principles (no fear for the applicant's life or freedom, respect for the principle of non-refoulement, possibility of obtaining refugee status), they did not been able to agree on the list of safe countries of origin which was to be included in the annex. During the negotiations, the text became considerably tougher under pressure from the Member States. A first political agreement between the ministers was thus only obtained in April 2004. It would take several more months before it was finalized on 1 December 2005, ie more than five years after the initial proposal.

the 19 November 2004, the Council then decided that the list would be adopted later and separately. The final text leaves it up to the European Commission to prepare a draft list. In fact, an expert on the matter explained to me, " each country will be able to establish its list of safe countries as it sees fit », under the control of the Commission, respecting the criteria mentioned (1).

The text is strongly criticized by NGOs and the United Nations High Commissioner for Refugees (UNHCR). In a detailed analysis presented on March 29, 2005, UNHCR strongly denounces the proposal for a European directive on asylum procedures, which it fears will lead to violations of international law. He fears that asylum seekers from countries deemed “safe” will be automatically rejected without having the possibility of defending themselves. He protests against a clause that allows rejected asylum seekers to be deported before the outcome of their appeal is known.

The Court gets involved

En January 2006, the Ministers of the Interior meeting informally in Vienna (this is the Austrian Presidency of the EU) are in favor of the development of a harmonized asylum procedure and a uniform status for people benefiting from asylum or subsidiary protection. " It is not possible that we have different judgments in the 25 Member States on the granting of refugee status sums up Austrian Interior Minister Liese Prokop. " Not only is this illogical, but this difference creates migratory movements between our countries “, completes a certain Nicolas Sarkozy, then Minister of the Interior. Relayed by several countries such as France, Spain or Germany, the consensus "seems general today to resolve this question", I wrote at the time... a bit optimistic. Nothing will really come

In its green paper in June 2006, the European Commission is indeed proposing to reassess the concepts of safe country of origin, safe third country and safe European third country.

Added to this political difficulty is a legal difficulty and an intra-institutional conflict at European level. THE 6th May 2008, the Court of Justice (ECJ) annuls the provisions of the 2005 directive on safe countries of origin. This angers the European Parliament, which has lodged a complaint. It considers that these provisions should have provided for the adoption of these lists in co-decision and not simply by consultation (3). The Court renders justice to the European Parliament, annuls the provisions concerned and recalls the rule of law. " The co-decision procedure is applicable both for the adoption and modification of the lists of safe countries by legislative means and for the decision (on) execution skills ". For the future adoption of the lists of safe countries, as well as their modifications, " the Council will (therefore) have to respect the procedures established by the Treaty ».

En June 2008, the European Commission proposes in a communication to adopt a common policy for asylum, with a "common system" of asylum by 2010. Objective taken up shortly afterwards by the Heads of State and Government meeting at a summit on 16th October, 2008 (under French presidency). The European Council notes that " strong disparities persist from one Member State to another in granting protection and calls for new initiatives, including a proposal to establish a single asylum procedure with common guarantees, to complete the implementation of the common European asylum system.

The December 10 and 11, 2009, the European Council adopts the Stockholm program which reaffirms its objective of establishing, by 2012 at the latest, a common area of ​​protection and solidarity ».

Le 21th October, 2009, the Commission presents a number of recast proposals in order to “simplify, rationalize and consolidate procedures within the Union. This text enshrines the principle of freedom for the Member States to draw up a list of safe countries, on condition that they notify it to the European Commission (4). The notion of a minimum common list of safe countries of origin is deleted. And “common objective” standards have been put in place on the designation at national level of third countries as safe countries of origin. The directive was adopted almost 4 years later, on June 26, 2013.

Each State free to adopt its list

Since then, each country has adopted "its" list of safe countries of origin, which varies from one to another. In France, The list of safe countries of origin includes for example 14 countries: Albania, Armenia, Benin, Bosnia and Herzegovina, Cape Verde, Georgia, Ghana, India, Macedonia (FYROM), Mauritius, Moldova, Mongolia, Montenegro, Senegal , Serbia, Tanzania (updated October 2014). In Belgium, it includes only 7 countries: Albania, Bosnia and Herzegovina, Kosovo, Serbia, Montenegro, FYROM (the former Yugoslav Republic of Macedonia) and India (updated in May 2015). In its 2010 report, the Commission already noted a very diverse assessment of the directive (see box).

A new draft common list

Le September 9, 2015, the European Commission has proposed a common list reduced to 7 Balkan countries which are all candidates, or potential candidates, for membership: Albania, Bosnia and Herzegovina, Kosovo, the former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey. According to the Commission, these 7 countries represent nearly 17% of the total number of applications submitted in the EU. Note that this list is very close to the Belgian list.

(Nicolas Gros-Verheyde)

(1) The concept of safe third country applies when a person has sought protection in a third country which is safe, which is able to offer protection in accordance with the 1951 Convention, and with which the person concerned has a login link. The directive provides that the " EU countries can apply the concept of safe third country only when the competent authorities are certain that in the non-EU country concerned:

1. the applicants do not have to fear for their life or for their freedom because of their race, their religion, their nationality, their membership of a particular social group or their political opinions;
2. the principle of non-refoulement is respected, in accordance with the Geneva Convention;
3. the prohibition, provided for by international law, of taking expulsion measures contrary to the prohibition of torture and cruel, inhuman or degrading treatment, is respected;
4. there is the possibility of requesting recognition of refugee status and, if this status is granted, of benefiting from protection in accordance with the Geneva Convention.

(2) A country is considered a safe country of origin when, on the basis of the legal situation, the application of law under a democratic system and the general political circumstances, it can be demonstrated that, generally and uniformly, there is never recourse to persecution as defined in Article 9 of Directive 2011/95/EU, nor to torture or to inhuman or degrading treatment or punishment and that 'there is no threat due to indiscriminate violence in situations of international or internal armed conflict.

A safe country of origin can only be considered as such for a given applicant, after individual examination of the application submitted by this person, if: 1) the latter is a national of the said country or the person concerned is stateless and if it is his former country of habitual residence, 2) if this applicant has not demonstrated serious reasons to believe that it is not a safe country of origin due to his personal situation, taking into account the conditions required for claim the status of beneficiary of international protection. »

(3) The 2005 directive indeed mentions that the Council, acting by a qualified majority, after consultation of the European Parliament, adopts a minimum common list of third countries which the Member States consider to be safe countries of origin, as well as a common list of European safe third countries. The modification follows the same procedure.

(4) Member States may maintain or adopt legislative provisions enabling them to designate safe countries of origin, at national level, for the examination of applications for international protection.

2. Member States shall regularly review the situation in third countries designated as safe countries of origin in accordance with this Article.

3. When determining whether a country is a safe country of origin in accordance with this Article, Member States shall rely on a range of information sources, including in particular information from other Member States, the BEAA , UNHCR, the Council of Europe and other relevant international organisations.

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A very diverse application (excerpt from the report of the European Commission, September 2010)

Safe countries of origin (articles 29 to 31)

There is no concept of safe countries of origin in Belgium, Italy, Poland and Sweden. Significant discrepancies were also noted between Member States that have safe country of origin procedures. In Cyprus, Estonia, Hungary and Greece, this notion can be applied for a portion of the territory of a country. A number of Member States (Germany, Finland, France, the Netherlands and the United Kingdom) can rely on standstill clauses, thus applying less stringent criteria for national designation, and the United Kingdom uses the possibility of designating a portion of the territory as safe or designating a country or part of its territory as safe for a particular group of people. Although national laws in general provide for a list of safe countries of origin, these lists have actually only been adopted in a few Member States (Austria, Germany, France, Luxembourg, Romania, Slovakia and the United Kingdom), and the content of these lists is highly variable. Estonia, Czech Rep., Finland, Netherlands and Portugal have not provided any list and this concept can only be applied on a case-by-case basis; in Bulgaria, France, Portugal, Malta and Romania, the national rules do not fully and explicitly transpose the criteria established by the Directive to consider a country as a safe country of origin.

The requirement to carry out an individual examination is generally recognised, either as a general principle or specifically within the framework of the safe country of origin concept. While the same applies to the possibility of rebutting the country's presumption of safety, it seems that applicants are not always informed of the intention of the authorities to apply this notion, and in Estonia, Greece and Slovenia, the personal interview may be omitted during the proceedings in question.

The safe third country concept (Article 27)

Some Member States (BE, DE, FR, IT, PL and SE) have not transposed this notion, while others rarely apply it in practice. As regards the material criteria for applying this concept to a third country, in general the national rules either follow the letter of the directive or reflect it in substance. Several problems have been identified: in the Czech Republic and the United Kingdom, the applicable legislation does not provide that a third country is obliged to respect the principle of non-refoulement[47], while in Romania and the United Kingdom , the national criteria do not mention the possibility of applying for refugee status and benefiting from protection. In FI, IE and LT, the focus is on the third country's participation in, and compliance with, refugee and human rights treaties, rather than treating a person in accordance with specific refugee criteria. the directive.

The notion of a safe third country can only be applied when it is established that there is a connection link with a third country, justifying that the person concerned goes there. The national measures do not contain detailed rules in this respect and only refer to a person "who was present" (SI), "transited and had the opportunity, at the border or on the territory, to contact the authorities (RO and UK), “stayed or transited in this country and there is a link which can, in principle, allow this person to address this country” (PT), “stayed” (CZ) or 'has resided' (BG, EL and MT) in a third country. No rule on this subject is established in AT, FI, LT and SK. The national rules of EE, ES, LU, CY require authorities to establish the existence of a link, without specifying the applicable criteria. In the Netherlands, the relevant rules exist and in particular oblige the national authorities to assess the nature, duration and circumstances of a person's stay in a third country.

Member States can either designate safe third countries or apply this concept on a case-by-case basis. BG, CZ, RO, SK, SI and PT have opted for the first solution, while AT, EE, ES, FI, EL, LT, LV, MT, NL and SE apply the case-by-case method. The UK provides both for the designation of safe third countries and for a case-by-case review of country safety. The approaches adopted by the Member States therefore vary and are generally not detailed enough as regards the individual security examination for a given person. In several Member States, the person has the right to rebut the presumption of security already in the procedure at first instance (BG, CZ, EE, FI, NL, SI, SK), whereas in others this possibility does not exist only by exercising an appeal (CY, RO, LT, MT, EL, ES, UK). While the general trend is that a person can rebut the presumption of safety on any ground, several Member States limit this possibility only to the grounds provided for in Article 3 ECHR (MT, NL, PT) or to ECHR grounds in general (UK). In Finland and Greece, the grounds are not specified in the legislation. The Commission is of the opinion that the persons concerned must be informed of their right to challenge the application of the concept of safe third country, and be given the opportunity to exercise it before a decision is taken at first instance.