The safe third country concept in
European Asylum Law
How has the legal concept of a safe third country in European Asylum Law developed over time and has this development affected the concept’s (in)compatibility with the 1951 Geneva Convention and article 3 ECHR, more specific the principle of non-‐refoulement?
Name: Geneviève Arends
E-mail: genevieve.arends@student.uva.nl Studentnumber: 11079053
Mastertrack: European Union Law
Supervisor: Mw. Prof. Dr. A.A.M. Schrauwen Amount of words: 14. 297
Abstract
This thesis analyses the development of the safe third country concept in European Asylum Law and examines whether this concept can still be considered as not violating the 1951 Geneva Convention relating to the status of refugees (GC) and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The GC is the key legal document for international refugee protection, with one of its most important provisions, the principle of
non-refoulement. Article 3 ECHR also contains the principle of non-refoulement and
provides for a broader scope and an absolute character. Thereby, the European Court of Human Rights (ECtHR) has ruled on the safe country and safe third country practice in relation to the principle of non-refoulement on several occasions. Therefore, both will be taken into account.
The methodology that is used for this thesis is descriptive and evaluative. Sources have been found by inserting the term ‘safe third country concept’ and related terms into several search engines and digital libraries. In this way many books, journal articles and electronic sources attracted my attention. Ultimately, they were not all equally relevant. It appeared important to search specifically for relevant case-law and official published sources in order to achieve a satisfying legal judgement.
The conclusion that can be drawn from this thesis is that the safe third country concept has developed over time, in the sense that its legal value, requirements, interpretation and protection standards have changed. Besides, the concept can no longer be considered in compliance with the GC and Article 3 ECHR, more specific the principle of non-refoulement. Although the 2005 Asylum Procedures Directive (APD) gave the concept legal value and the 2013 Directive ensured faster and more efficient asylum applications, both Directives could not ensure non-violations of those fundamental rights. The Proposal from the European Commission to establish an Asylum Procedures Regulation (APR) does not offer this insurance either and amends the safe third country concept for worse. Therefore, the co-legislators should take into consideration the provided recommendations before adopting the Regulation.
Table of cases
Introduction ... 5
Background ... 5
Plan of action ... 5
1. Historical origin of the safe third country concept until 2005 ... 7
1.1. Introduction ... 7
1.2. Legal framework ... 7
1.2.1 The 1951 Geneva Convention ... 7
1.2.2. The European Convention of Human Rights ... 9
1.3. Explanation of the safe third country concept ... 9
1.3.1. Article 31 of the 1951 Geneva Convention and the 1977 UN Conference on Territorial Asylum ... 10
1.3.2. UNHCR’s support ... 11
1.4. Formal introduction of the safe third country concept in European Asylum Law ... 11
1.4.1. Requirements ... 13
1.4.2. Readmission agreements ... 13
1.5. Background and context in which the safe third country practice developed ... 14
1.6. The 1990 Dublin Convention and the 1951 Geneva Convention ... 15
1.7. Criticism on the safe third country concept at that time ... 16
1.8. Conclusion ... 17
2. How has the safe third country concept in European Asylum Law further developed from 2005 until 2016? ... 19
2.1. Introduction ... 19
2.2. The entry into force of the 2005 Asylum Procedures Directive ... 19
2.2.1. The preamble to the Asylum Procedures Directive ... 20
2.2.2. Article 25 and 28 of the Asylum Procedures Directive ... 21
2.2.3. Article 26 of the Asylum Procedures Directive ... 22
2.2.4. Article 27 of the Asylum Procedures Directive ... 22
2.3. Evaluation of the 2005 Asylum Procedures Directive ... 24
2.4. The 2013 Recast Asylum Procedures Directive ... 25
2.5. Evaluation of the 2013 Recast Asylum Procedures Directive ... 25
2.6. Proposal for a new Asylum Procedures Regulation ... 26
2.7. Has the interpretation of the concept changed? ... 28
2.8. Conclusion ... 29
3. Can the safe third country practice be considered in compliance with the Geneva Convention and Article 3 ECHR? ... 31
3.1. Introduction ... 31
3.2. Principle of non-refoulement ... 31
3.3. Violations of the principle of non-refoulement ... 32
3.3.1. Violations regarding non-EU Member States ... 32
3.3.2. Violations regarding EU Member States ... 33
3.3. Criticism on the safe third country concept ... 35
3.4. The EU-Turkey Agreement ... 38
3.5. Recommendations ... 40
3.6. Conclusion ... 41
4. Conclusion ... 43
Bibliography ... 45
Introduction
Background
On 18 March 2016 the European Union (EU) closed a deal with Turkey wherein Turkey can be regarded as a safe third country for asylum seekers travelling to Europe. Turkey agreed to take back asylum seekers that reached Greece from its territory, in accordance with Article 31 of the GC. This deal has been found controversial, because it is debatable whether Turkey can be declared a safe third country.1 According to EU leaders, this deal complies with all legal requirements
concerning the safe third country practice.2
This thesis will identify those legal requirements by analysing the development of the safe third country concept and examine its compliance with the GC and Article 3 ECHR. Chapter one describes the historical origin of the safe third country concept until 2005. Chapter two examines whether the legality, interpretation and criteria of the safe third country concept changed with the coming into force of the 2005 APD and describes how the concept further developed. Chapter three examines whether the application of the safe third country concept has violated the provisions of the GC and Article 3 ECHR, by looking into the case-law of the ECtHR. Chapter three also has regard to the criticism of legal scholars and the recent draft Regulation.
The research question is how the legal concept of a safe third country in European Asylum Law has developed over time and how this development has affected the (in)compatibility with the 1951 Geneva Convention and Article 3 ECHR, more specific the principle of non-refoulement.
Plan of action
Chapter one sets out the historical origin of the safe third country concept by explaining when and how the concept was introduced for the first time and will take the criticism that arose at that time into account. This chapter is descriptive and has an evaluative aspect at the end. Chapter two describes the further development of the
1 See: Amnesty International, Europe’s Gatekeeper. Unlawful Detention and Deportation of refugees
from Turkey, AI Index: EUR 44/3022/2015, 16 December 2015; E. Roman, T. Baird, T. Radcliffe,
2 European Council, EU-Turkey statement, 18 March 2016, available at
http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/, accessed on 13-10-2016.
safe third country concept from 2005 until 2016 and evaluates the 2005 APD, the Recast Directive and the recent draft Regulation. Therefore, this chapter is descriptive and evaluative in nature. Chapter three examines the compliance of the safe third country concept with the provisions of the GC and Article 3 ECHR. This chapter will also provide recommendations for improvement in the future. Chapter three is therefore evaluative. The sub-questions are interrelated in the sense that first the history and background of the safe third country concept have to be established before the development of the concept can be examined. Furthermore, it is important to have full knowledge of the concept before being able to examine whether or not the use of this concept is in compliance with the GC and Article 3 ECHR.
1. Historical origin of the safe third country concept until 2005
1.1. Introduction
This chapter will explore the historical origin of the safe third country concept. First, the legal framework of this thesis will be set out. Secondly, it will be explained what the concept means. Thirdly, the introduction of the concept into European Asylum Law and its requirements will be discussed. Fourthly, the criticism on this concept will be evaluated.
1.2. Legal framework
Before explaining the safe third country concept it is important to set out the legal framework wherein it will be examined. This thesis examines whether the application of the safe third country concept in the European Asylum System is in compliance with the GC and Article 3 ECHR. All EU Member States are party to both treaties.3 Therefore, the important articles concerned have to be discussed.
1.2.1 The 1951 Geneva Convention
The GC, which defines the term refugee in Article 1A, sets out the rights of displaced persons and refugees and the obligations for states to protect them.4 The United Nations High Commissioner for Refugees (UNHCR) guards the GC and states are expected to cooperate with them.5 In order to examine the concept’s compliance with the GC article 33 has to be taken into account, which includes the principle of
non-refoulement.
Article 33 states that “1. No Contracting State shall expel or return (‘refouler’) a
refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious
3 See the Simplified Chart of signatures and ratification of the ECHR and States Parties to the GC. 4 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations,
Treaty Series, vol. 189, p. 137 (Geneva Convention).
crime, constitutes a danger to the community of that country.”6
The principle of non-refoulement comes from the French refouler, which means to drive back or to repel.7 This principle prohibits states from returning refugees and asylum seekers to a territory where there is a risk that their life will be threatened on one of the grounds mentioned in Article 33(1) of the GC.8 Article 33(2) gives the exceptions to this principle. Refoulement is prohibited to the frontiers of any territory where the person’s life could be at risk and therefore not only to the country of origin.9 The same applies to third countries, meaning that a refugee or an asylum seeker cannot be sent to a third country when he/she can be sent from there to a territory where he/she might be at risk.10 However, removal to a ‘safe’ third country is not prohibited, but Article 33(1) requires an assessment to make sure that the third country is truly safe.11 This interpretation is supported by different sources. First, by
human rights law, wherein the principle of non-refoulement prohibits the transfer of an asylum applicant to a country where there is a danger of subsequent removal to a territory where he or she might be at risk.12 This means that the sending country needs to examine whether the asylum applicant will not be exposed to such a risk. Secondly, by information from UNHCR, which indicates that it is accepted among states to take into account the risk of subsequent removal before sending an asylum applicant to a ‘safe’ third country.13 Thirdly, by Conclusion No. 58 (XL) 1989 of the UNHCR Executive Committee stating that refugees who have already found protection in a country, but move to other countries in an irregular manner, can be sent back to that country when they are protected there against refoulement.14 In short, the prohibition of refoulement as is laid down in Article 33 of the GC covers any transfer of refugees and asylum seekers to a territory where they may be at risk directly or indirectly
6 Article 33 of the GC.
7 Guy S. Goodwin-Gill, The Refugee in International Law, 2007, p. 201.
8 S. Lauterpacht and D. Bethlehem, The scope and content of the principle of non-refoulement:
Opinion, Cambridge University Press, 2003, p. 89.
9 Ibid, p. 122. 10 Ibid. 11 Ibid.
12 Ibid. T.I. v. The United Kingdom, Appl. No. 43844/98, Council of Europe: European Court of
Human Rights, 7 March 2000, available at: http://www.refworld.org/docid/3ae6b6dfc.html, accessed on 04-09-2016.
13 S. Lauterpacht and D. Bethlehem 2003 (n8) p. 123.
14 Ibid. See also Conclusion No. 58 (XL) 1989 of the UNHCR Executive Committee 40th session,
because of subsequent expulsion.15
1.2.2. The European Convention of Human Rights
The ECHR, drafted by the Council of Europe, was the first instrument to make some rights of the Universal Declaration of Human Rights binding.16
This thesis also examines whether the application of the safe third country concept is in compliance with Article 3 of the ECHR, which provides that “No one shall be
subjected to torture or to inhuman or degrading treatment or punishment”.17 The prohibition laid down in Article 3 is absolute and the ECtHR has interpreted the principle of non-refoulement from this provision.18 There have been many cases wherein the ECtHR has held a deporting state responsible for violating Article 3 ECHR when it wanted to deport an individual to a country where he/she could face treatment in violation of Article 3 ECHR.19 This is the case, because when substantial
grounds are shown that an individual could face treatment as described in Article 3 in the receiving state and the sending state still deports the individual to that receiving state, the sending state is responsible for the exposure to this ill-treatment.20 In other words, a sending state must scrutinise the truthfulness of the individual’s claim that he/she will be maltreated in the receiving country, before sending the individual to a third country where he/she could be exposed to treatment in violation of Article 3.21 This also indicates that a sending country has the obligation to scrutinize the safety of the receiving country, or (as relevant for this thesis) the safety of a safe third country, before sending an asylum applicant to this country.
1.3. Explanation of the safe third country concept
In order to examine how the safe third country concept in European Asylum Law has developed over time, it is necessary to explain first what this concept means, where it
15 Ibid.
16 Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950 (ECHR).
17 Article 3 of the ECHR.
18 S. Krisper, Dissertation, The European Union’s safe country concepts versus the principle of
non-refoulement, Vienna, 2012, p. 28.
19 Council of Europe, Human rights handbooks, No. 6, The prohibition of torture, A guide to the
implementation of Article 3 of the European Convention on Human Rights, 2003, p. 32.
20 Soering v. the United Kingdom,Appl. No. 14038/88, Council of Europe: European Court of Human
Rights, 7 July 1989, para. 90-91.
originated from and how it has been applied. In the refugee context a country is considered safe when it is not refugee producing or when refugees can enjoy asylum without danger in this country.22 The concept of a safe country can be applied in two situations, namely that of a safe country of origin and a safe third country.23 This thesis will focus on the latter. The concept of a safe third country is generally applied in the sense that an EU Member State can refuse to examine an asylum seeker’s application on the basis that he/she has already been granted or could have been granted protection in another country and can therefore be sent to that ‘safe third country’.24 Hereby, the asylum seeker is denied a substantive examination of his/her asylum application on the merits.25
1.3.1. Article 31 of the 1951 Geneva Convention and the 1977 UN Conference on Territorial Asylum
Other terms used for this concept are ‘safe country of asylum’; ‘host third country’ and ‘first asylum country’ and its origin can be retrieved from interpreting Article 31 of the GC.26 Article 31 stipulates that “Contracting Parties shall not impose
penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory whether their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”27 The article refers specifically to asylum seekers coming
directly from a territory where their life was threatened. This can be interpreted
narrowly, in the sense that asylum seekers are supposed to avail themselves to the protection of the first safe country they transit.28 However, it can also be interpreted
22 UNHCR, Background Note on the Safe Country Concept and Refugee Status, EC/SCP/68, 1991,
available at http://www.unhcr.org/excom/scip/3ae68ccec/background-note-safe-country-concept-refugee-status.html, accessed 31-8-2016.
23 Ibid. See also European Union: Council of the European Union, Council Resolution of 30 November
1992 on a Harmonized Approach to Questions Concerning Host Third Countries ("London Resolution"), 30 November 1992.
24Article 31 of the GC. See also R. Byrne and A. Schacknove, The Safe Country Notion in European
Asylum law, Harvard Human Rights Journal/ Vol. 9, 1996, p. 189.
25 G. Borchelt, The safe third country practice in the European Union: a misguided approach to asylum
law and a violation of international human rights standards, Columbia Human Rights Law Review, 2000-2001, p. 475.
26 R. Byrne and A. Schacknove 1996 (n24) p. 189. 27 Article 31 of the GC.
28 S. Peers, The refugee crisis: What should the EU do next? EU Law analysis, 8 September 2015,
available at http://eulawanalysis.blogspot.nl/2015/09/the-refugee-crisis-what-should-eu-do.html, accessed on 03-11-2016.
more generously, in the sense that not all asylum seekers who have transited a ‘safe’ country will be sent back, but only those who have already obtained protection in another country.29
The concept was formally introduced in the context of the 1977 United Nations (UN) Conference on Territorial Asylum. At this conference, Denmark proposed that a person with a reasonable and fair connection or close link to another State can be requested to apply for asylum in that State.30
1.3.2. UNHCR’s support
In 1979, the Executive Committee of UN High Commissioner’s Programme enounced support for a safe country of asylum notion. However, the UNHCR stressed that asylum could not be refused on the sole basis that it could be sought elsewhere and emphasized that individual circumstances of asylum seekers had to be taken into account.31 Furthermore, the UNHRC accepted in 1989 that asylum seekers can be sent
back to a safe third country as long as they can enter and remain there, are protected against refoulement and persecution and have access to a durable solution.32
1.4. Formal introduction of the safe third country concept in European Asylum Law
Now that it has been explained that the safe third country concept could be interpreted from the GC, it is essential to establish how the concept became so important in European Asylum Law. The concept of a safe third country was first formally introduced into European Asylum Law with the term ‘host third country’ by European Community (then EC, now EU) Ministers responsible for immigration at the London Resolution of 30 November 1992.33 For the clarity of this thesis it will be mentioned as safe third country. This Resolution includes principles that were not legally binding, but they formed the procedural basis for the application of the safe third country concept at that time and were introduced into the national legal systems of the
29 Ibid.
30 UNHCR 1991 (n22).
31 R. Byrne and A. Schacknove 1996 (n24) p. 190. 32 Ibid. See also UNHCR 1991 (n22).
33 E. Kjaergaard, Opinion, The Concept of 'Safe Third Country' in Contemporary European Refugee
EC Member States.34 These principles state that a Member State must primarily identify whether there is a safe third country before it can examine the application of asylum on the merits. This practice is applicable to all applicants for asylum, regardless of whether they are refugees or not. If there is a safe third country outside the EU, the Member States are advised not to examine the application for asylum on the merits and send the asylum seeker to that safe third country.35 However, Member States retain the possibility not to send the asylum seeker to the safe third country on the basis of humanitarian reasons.36
When it is impossible in practice to send an asylum seeker to a safe third country outside the EU, the European rules (Dublin Convention) will apply. The 1990 Dublin Convention (DC) is a piece of European legislation that establishes a framework to identify which EU Member State is responsible to examine an asylum application that is lodged within the EU.37 The aim of the DC is to ensure that only one EU Member
State will examine the asylum application and avoid situations of ‘refugees in orbit’.38
Hereby, asylum applicants are left in doubt for too long regarding the outcome of their applications and are pushed around between Member States.39 The difference between the safe third country practice applied to non-EU Member States and the Dublin System is that the first is based on a unilateral decision by an EU Member State to send the asylum applicant to a safe country outside the EU, while the second is based on a multilateral agreement wherein EU Member States consider each other safe and only send an applicant back when the Member State agrees to examine his/her application.40
34 Ibid.
35European Union: Council of the European Union, Council Resolution of 30 November 1992 on a
Harmonized Approach to Questions Concerning Host Third Countries ("London Resolution"), 30
November 1992.
36 Ibid.
37 Convention determining the State responsible for examining applications for asylum lodged in one of
the Member States of the European Communities 15 June 1990 [1997] OJ C254/1 (1990 Dublin Convention) (This Convention is no longer in force and has been replaced by the Dublin Regulation). See also Refugee Council, Briefing, The Dublin Convention on Asylum applications: What it means and how it’s supposed to work, August 2002, p. 1.
38 Ibid.
39 Preamble to the 1990 Dublin Convention.
40 A. Hurwitz, The 1990 Dublin Convention: A comprehensive assesment, International Journal of
1.4.1. Requirements
The 1992 London Resolution also lays down the requirements that must be met in order to qualify a country as a safe third country. These include that in the safe third country the life of the asylum applicant must not be threatened, in accordance with Article 33 of the GC, and the asylum applicant must not be exposed to torture or inhuman or degrading treatment.41 Furthermore, the asylum applicant must already have been given protection in that safe third country or have had an opportunity to avail him-/herself of the protection of that country and he/she must have effective protection against refoulement, in accordance with the GC.42 If more than one country fulfils the requirements, a Member State can choose to which safe third country it sends the applicant. In order to make this choice, the Member State has to take into account known practices in those third countries, on the basis of UNHCR information, with special attention to the use of the principle of non-refoulement.43
Furthermore, this Resolution explains the relationship between these requirements and the 1990 DC. Member State A, in which the asylum applicant filed his application, will first examine whether it can send the applicant to a safe third country before it considers whether another Member State (Member State B) is responsible.44 When Member State B is responsible under the DC, it cannot refuse to examine the application on the basis that the applicant could have been send to a safe third country by Member State A. However, Member State B can still send the applicant itself to a safe third country in accordance with its national law.45 These principles do not detract from Article 3(4) and 9 of the DC, meaning that each Member State retains the right to examine an asylum application by itself, even though another Member State is responsible and any Member State may examine the application for humanitarian reasons.46
1.4.2. Readmission agreements
In order to make this system work well, EU Member States formed readmission agreements with countries outside the Dublin and Schengen area. These were mostly 41 London Resolution 1992 (n35). 42 Ibid. 43 Ibid. 44 Ibid. 45 Ibid.
Central and Eastern European countries, in which the asylum seekers transited. Parties to such readmission agreements agreed that they would take back their own nationals and asylum seekers who crossed their external borders and were irregularly staying on the territory of another party.47 As Kjaergaard wrote in 1993, “with these measures
combined with visa restrictions and airline liability, the institution of asylum, certainly as far as the Twelve EU countries is concerned, is in overwhelming danger of being completely abandoned”.48 There was a risk that asylum applicants were send
back to countries that did not have the appropriate constructions to examine their applications and were thereby exposed to inhuman or degrading treatment. Moreover, the asylum applicants faced the risk of being send back to their country of origin in violation of the principle of non-refoulement.49 The European Council on Refugees and Exiles (ECRE) adopted recommendations to improve this situation and in 1993 the European Legal Network on Asylum (ELENA) pronounced the ELENA ‘Safe Third Country’ Monitoring Project.50 ECRE and ELENA set up a monitoring system
to identify cases in which asylum seekers faced inhuman or degrading treatment or
refoulement. Documentation was made available to lawyers in the network to be able
to identify the flaws in the system and strive for better refugee protection. With this project ECRE and ELENA tried to get European refugee protection back on the right track.51
1.5. Background and context in which the safe third country practice developed In order to have a better understanding of the safe third country practice, it is important to have some knowledge of the background and context in which the practice developed. Around 1980, many people started traveling to Western European States for reasons of economic instability in their home countries, but also in quest of asylum.52 Among them were people from Central and Eastern Europe, but also from Africa, Central America, Asia and the Middle East.53 Due to the huge increase of migrants and refugees using the asylum system, Member States were afraid they would not be able to manage the flood and believed they were facing an ‘asylum 47 E. Kjaergaard 1994 (n33) p. 653. 48 Ibid. 49 Ibid, p. 654. 50 Ibid, p. 655. 51 Ibid. 52 G. Borchelt 2000-2001 (n25) p. 491. 53 Ibid.
crisis’.54 For the Member States it was hard to differentiate between refugees and economic migrants and therefore they treated them all the same. This resulted in trying to refuse them all from entering the Western European States. For this reason, they included the third country practice in the European Asylum System.55 In this sense they would be able to send all applicants for asylum, who had been in another country, where they could also have applied for asylum, back to that country. The Member States did not think about how they could protect refugees, instead they thought about how they could prevent them all from entering their territory.56
1.6. The 1990 Dublin Convention and the 1951 Geneva Convention
The safe third country practice was laid down in two legal instruments, namely the DC and the Schengen Agreement, both signed in 1990. Article 3(5) of the DC provides that “any Member State shall retain the right, pursuant to its national laws,
to send an applicant for asylum to a third State, in compliance with the provisions of the [Refugee Convention]”.57 The Dublin Regulation (DR) as we know it today, is mostly a reproduction of the DC, but the content has changed enormously. This is the case, because most states that were safe third countries at that time have now acceded to the EU.58 The relation of the safe third country concept to the DR will be further discussed in chapter two.
The safe third country concept could also be derived from interpreting the GC. It is remarkable that for the use of the safe third country concept the 1992 London Resolution not necessarily required that the third country had acceded to the GC. More important was that the practice in the third country could be considered ‘safe’.59 This does not mean that accession did not matter at all. Accession demonstrated that a state respected the provisions of the GC and implemented them in practice.60 It was more difficult for Member States to rely on state practice, since there were no requirements codified in international law. Although the Member States accepted that
54 Ibid. 55 Ibid. 56 Ibid, p. 492.
57 Article 3(5) of the Dublin Convention.
58 C. Costello, The Asylum Procedures Directive and the Proliferation of Safe Country Practices:
Deterrence, Deflection and the Dismantling of International Protection? European Journal of Migration and Law 7: 35-69, 2005, p. 46.
59 R. Byrne and A. Schacknove 1996 (n24) p. 200. 60 Ibid.
direct and indirect refoulement were illegal, there was no legal obligation to investigate whether third states complied with the principle of non-refoulement.61 After all, it was easier for the Member States to rely on ratification of the GC than on state practice.
1.7. Criticism on the safe third country concept at that time
In examining this concept’s development it is also noteworthy to take the criticism that arose into account. In 1996, when the safe third country practice had been formally introduced for four years, Byrne and Schacknove already stated that the safe country notion was found problematic in law and in practice. This was the case because, first, states were regarded as safe before they had acceded to the 1951 GC and before it was established that there was sufficient protection for individual applicants.62
Secondly, it appeared in practice that asylum seekers had been sent back to countries they only transited, while UNHCR stated that transit was an insufficient basis for return.63
Besides, Article 7 of the 1990 DC does not consider mere transit at an airport entry into a country.64
This may be interpreted as considering another form of mere transit not as entering or staying in a country either. More emphasis was laid on the technicalities of transit than on actual contacts with the ‘safe’ third country. The problem of refugees in orbit was also not solved by this concept, they were only more pushed around and therefore it did not meet the purpose of the 1990 DC.65
In 2005, Costello wrote that the safe third country practice had weakened the access to and integrity of the asylum procedures in the EU. Without the appropriate procedures, the chances of error in the asylum applications and the risk of refoulement for the applicants increased.66
Furthermore, Costello noted that the safe third country practices have proved to be unjust, unfair and inefficient, mainly because of the high risk of refoulement.67
There are plenty of cases wherein asylum seekers have been sent back directly and indirectly, such as the case of T.I. v the UK from 2000.68
The
61 Ibid, p. 200-201.
62 R. Byrne and A. Schacknove 1996 (n24) p. 199.
63 Ibid. See also UNHCR, Considerations on the “Safe third country” concept, EU Seminar on the
Associated States as Safe Third Countries in Asylum Legislation, Vienna, 8 - 11 July 1996, p. 4.
64 Article 7 of the 1990 Dublin Convention. 65 Ibid, p. 200.
66 C. Costello 2005 (n58) p. 36-37. 67 Ibid, p. 47.
applicant was persecuted in his home country, Sri Lanka, and applied for asylum in Germany. The German authorities decided that the applicant could be sent back, because he could be safe in another part of Sri Lanka, even though non-state actors and security forces had tortured him.69
The applicant, in response, travelled to the United Kingdom (UK) and applied for asylum there. The UK requested Germany to take responsibility within the meaning of the DC. Germany agreed, but the applicant applied for judicial review in the UK, complaining of the approach of the German authorities.70
There was a risk of chain refoulement, because the German authorities had already tried to send the applicant back to Sri Lanka. The ECtHR decided that the applicant could be sent back to Germany, also a Contracting State, and would not be exposed to treatment violating Article 3 of the ECHR.71 This makes clear that the ECtHR acknowledges the use of the safe country and safe third country concept. Germany could then re-examine the case, but there remained the risk that Germany would refuse and send the applicant back to Sri Lanka. However, this risk was not sufficient for a violation of the principle of non-refoulement.72
The system could work properly if and when the safeguards were duly respected. Whether those safeguards were better respected in later times will be set out in the next chapter.
1.8. Conclusion
This chapter has established that the safe third country concept could be interpreted in compliance with the 1951 GC and originated in a time where there was a flood of asylum applicants, among them economic migrants, but also refugees. In order to stop them from entering the Western European States, the European Migration Ministers introduced the safe third country concept into European Asylum Law. Hereby, they ensured that applicants who had been granted or could have been granted protection in a safe third country could be sent back to that country. Furthermore, they laid down non-binding principles in the 1992 London Resolution that formed the procedural basis for the application of the safe third country concept. However, given the fact that those third countries did not necessarily have to ratify the GC and that their state practice was not scrutinized that strictly, the concept was not that well established in the light of refugee protection. Whether this has changed with the coming into force
69 Ibid. 70 Ibid. 71 Ibid.
2. How has the safe third country concept in European Asylum Law
further developed from 2005 until 2016?
2.1. Introduction
This chapter will elaborate on how the safe third country concept has developed in European Asylum Law from 2005 until 2016. First, the entry into force of the 2005 APD will be set out and its provisions on the safe third country concept will be discussed. Secondly, it will be researched why a recast of the APD was introduced and what changes were made in relation to the safe third country concept. Thirdly, the recent draft APR will be discussed and evaluated.
2.2. The entry into force of the 2005 Asylum Procedures Directive
Since 1999, The EU has been working towards achieving a Common European Asylum System (CEAS).73 The EU established a Qualification Directive (QD) that defines persons eligible for international protection, including refugees and persons eligible for subsidiary protection.74 These provisions were based on Article 1A of the GC. The QD examines the asylum applicant’s international protection needs, wherefore an individual assessment of that person’s situation is needed.75 For this purpose, the APD has been established, which provides minimum standards on procedures in Member States for granting and withdrawing refugee status.76
For the general understanding of the safe third country concept, it is important to note that the ‘safe third country’ concept can be applied to non-EU Member States and the ‘safe country’ concept to EU Member States. The APD applies to non-EU Member States and the DR, which is the replacement of the DC, to EU Member States. The DR indicates which Member State is responsible for examining an asylum application and on that basis an asylum applicant can be sent back to the safe country/ EU
73 European Commission, Migration and Home Affairs, Common European Asylum System, available
at http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/index_en.htm, accessed on 13-10-2016.
74 Article 2 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (QD 2004).
75 QD 2004. See also ECRE, AIDA, Admissibility, responsibility and safety in European asylum
procedures, 2016, p. 8.
76 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in
Member State responsible.77 This thesis focuses on the application of the safe third country concept to non-EU Member States in relation to the APD. Therefore, the DR will not be further discussed. However, the ECtHR jurisprudence on the principle of
non-refoulement, considering EU Member States, could be important to the
application of the safe third country concept to non-EU Member States and will be taken into account in Chapter three.
The Commission first introduced an APD in 2000, but as a result of political disagreement, it announced an amended proposal in 2002.78 Regarding the amendments concerning the safe third country practice, the original proposal required ‘previous stay’ of the applicant in the safe third country, but this was deleted and the amended proposal only required admittance of the applicant by the safe third country.79 Although the safe third country admits the applicant, the sending country still has to take into account whether the applicant has a connection or close link to the receiving country. In the amended proposal this has been called a minor modification, while this can actually be seen as a huge amendment, given the fact that the applicant can now also be sent to a safe third country without having stayed in that country.80 Thereby, it has not been clarified what a connection or close link should consist of. For this reason, it can be said that amending the proposal has lowered the standards.
2.2.1. The preamble to the Asylum Procedures Directive
In 2005, the APD entered into force. The preamble states that Member States should examine all applications in substance, but this is immediately undermined by the fact that they are not obliged to do so when an applicant can avail himself of the
77 Council regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms
for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, (DR 2003). This is an old version of the Dublin Regulation, which is no longer in force.
78 C. Costello 2005 (n58) p. 52.
79 Article 22 of the Proposal for a Council Directive on minimum standards on procedures in Member
States for granting and withdrawing refugee status (COM(2000) 578 final — 2000/0238(CNS)), OJ C 62E , 27.2.2001, p. 231–242. Article 28 of Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (COM (2002) 326 final — 2000/0238(CNS)), OJ C 291E, 26.11.2002, p. 143–171.
80Article 28 of Amended proposal for a Council Directive on minimum standards on procedures in
Member States for granting and withdrawing refugee status (COM (2002) 326 final — 2000/0238(CNS)), OJ C 291E, 26.11.2002, p. 143–171.
protection of a third country.81 The preamble also mentions that Member States should only send the applicant to a third country where it is safe. To avoid secondary movements, a list of common principles regarding the safety of third countries should be established.82 Furthermore, the safe third country concept should only be used when the Council is satisfied that in that country the high standards of safety, as set out in the Directive, are met.83
2.2.2. Article 25 and 28 of the Asylum Procedures Directive
Article 25 of the APD sets out that Member States are not obliged to examine whether the applicant can qualify as a refugee where an application for asylum is considered inadmissible.84 Member States can consider an application inadmissible if there is a country, which is not a Member State, which can be considered a country of first asylum, as laid down in Article 26 of the APD, or a safe third country, as laid down in Article 27, for the applicant.85 This means that Member States do not have to examine
the asylum application in substance and can send the applicant to a first country of asylum or safe third country. This is at odds with the ECtHR jurisprudence of T.I. v.
the United Kingdom, which requires an individual assessment before an asylum
applicant can be sent to a safe third country.86 Member States assume that the application will be fully examined elsewhere, while they have to examine themselves.87
Besides the possibility of declaring an application inadmissible, there is the possibility of declaring an application unfounded in Article 28 of the APD. This provision allows applications to be considered unfounded on one of the grounds of Article 23(4).88 The safe third country concept is one of these grounds. A critical element is that a personal interview may be omitted when an application can be considered unfounded.89
81 Preamble recitals 22-23 of the APD 2005. 82 Ibid.
83 Ibid, preamble recital 24. 84 Article 25 of the APD 2005. 85 Article 25(b)(c) of the APD 2005. 86 T.I. v. The United Kingdom (n12). 87 C. Costello 2005 (n58) p. 55.
88 Article 28 and 23(4) of the APD 2005.
2.2.3. Article 26 of the Asylum Procedures Directive
As has been explained in the first chapter, another term that could be used for the safe third country concept is the term ‘first country of asylum’, which is also reflected in Article 26 of the APD.90 According to UNHCR, there is a clear distinction between a first country of asylum, where protection has been granted, and a safe third country, where the person could have requested protection on the basis of a connection.91 This will become clearer after further explanation of Article 26 and 27 of the APD. According to Article 26 a country can be regarded as a country of first asylum when the asylum applicant has been recognised as a refugee in that country and can still avail him/herself of the protection of that country.92 Moreover, the applicant must be adequately protected, including protection against refoulement and that country must be willing to take the applicant back. If a member state uses this concept, it may also take the criteria of Article 27 of the APD into account.93
2.2.4. Article 27 of the Asylum Procedures Directive
The criteria for the application of the safe third country concept are laid down in Article 27 of the APD. This article stipulates that Member States can only send an applicant to a safe third country when they are certain that “in the third country life
and liberty of the asylum seeker will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion”.94 The third country must respect the principle of non-refoulement in accordance with the GC and the prohibition of removal to a country where the applicant could face torture, cruel, inhuman or degrading treatment. Furthermore, the applicant must retain the possibility to require refugee status and receive protection in accordance with international law.95 Member States can lay down rules in their national law that influence the use of the safe third country concept, such as the requirement of a connection between the applicant and the third country, a case-by-case analysis of the safety of that country for a particular applicant and the possibility for the applicant to challenge the safety of the third country on the ground that he/she would face torture,
90 Article 26 ofthe APD 2005.
91 J. van Selm, UNHCR Background paper, Access to procedures ‘safe third countries’, ‘safe countries
of origin’ and ‘time limits’, 2001, p. 7.
92 Article 26 of the APD 2005. 93 Ibid.
94 Article 27 of the APD 2005. 95 Ibid.
cruel, inhuman or degrading treatment or punishment in that country.96 The requirement of a connection has been made optional, while UNHCR advocates that the applicant must have a meaningful link with the third country.97 It is clear that Article 27 does not ensure the existence of a meaningful link between the applicant and the safe third country.98
2.2.5. Article 36 of the Asylum Procedures Directive
Article 36 of the APD describes the European safe third country concept. This provision states that no examination needs to take place when an asylum applicant is staying on the territory of a Member State illegally, while coming from a safe third country. In this case, the applicant can be sent back to that country when it is sufficiently safe, meaning that it has signed the GC without any geographical limitations and honours its provisions.99 Chapter three will further examine this
requirement, since it is an important condition for the EU-Turkey deal. The third country must also have signed the ECHR and live up to its provisions. The Member States shall lay down modalities in national law for implementing the safe third country rule, including exceptions on the basis of humanitarian or political reasons or reasons of public international law.100 Article 36 also mentions the adoption of a common list of safe third countries.101 However, the European Court of Justice (ECJ) annulled this requirement, because it was assumed that it breaches EC Law.102 This breach concerns procedural aspects, in the sense that such a list must be established in accordance with the co-decision procedure, demanding involvement of the European Parliament.103 For that reason, no common list of safe third countries had been adopted.
96 Ibid.
97 UNHCR, Improving asylum procedures comparative analysis and recommendations for law and
practice, March 2010, p. 63.
98 C. Costello 2005 (n58) p. 64. 99 Article 36 of the APD 2005. 100 Ibid.
101 Ibid.
102 European Court of Justice, Judgment of the Court (Grand Chamber) of 6 May 2008, European
Parliament v. Council of the European Union, C-133/06, Official Journal C 158/3, 21 June 2008, 3-4.
Furthermore, Article 36 indicates that countries in the European region are safer than others.104 At the time the APD entered into force, these countries were Albania, Belarus, Bulgaria, Croatia, Macedonia, Romania, the Russian Federation, Serbia & Montenegro, Norway, Turkey, Ukraine and Switzerland.105 Although many of these countries had asylum laws in place, they did not all provide for access to the proper procedures. When an applicant was transferred to a country without proper procedures, his right to international protection was denied. There has been a lot of evidence showing that some of these countries were not safe. For example, ECRE has indicated the failure to provide for refugee protection in Turkey, the Russian Federation and Bulgaria.106 Another form of evidence is the case of Mamatkulov, wherein Turkey expelled two asylum applicants to Uzbekistan, not complying with an ECtHR request to stop the expulsion in order to enable the ECtHR to review the expulsion decision.107 Moreover, the Commission itself has shown in its reports that
Bulgaria was not a safe country, because of the shortcomings in the asylum system.108
Having regard to the application of the super safe third country concept, Article 36 does not provide for sufficient safeguards and legal accountability for the decision makers, which leads to a real risk of violation of the principle of non-refoulement.109
2.3. Evaluation of the 2005 Asylum Procedures Directive
Overall, the criteria laid down in the APD have been found weak since the Directive only lays down minimum requirements and does not provide for a stand-still clause.110 Hence, it is not prohibited to lower domestic standards in implementing the Directive.111 Moreover, the Directive does not provide for a rebuttal of the safety
presumption either.112
104 Article 36 of the APD 2005. 105 C. Costello 2005 (n58) p. 63.
106 ECRE, Recommendations to the Justice and Home Affairs Council on the Safe Third Country
Concept at its Meeting 22-23 January 2004, 15 January 2004.
107 Mamatkulov and Askarov v. Turkey , Appl. No. 00046827/99 and 00046951/99, Council of Europe:
European Court of Human Rights, 4 February 2005.
108 European Commission, Regular Report on Bulgaria’s Progress towards Accession, 2003, p.
104-105. See also C. Costello 2005 (n58) p. 64.
109 C. Costello 2005 (n58) p. 64. 110 Ibid, p. 53.
111 Ibid.
2.4. The 2013 Recast Asylum Procedures Directive
This paragraph will explain why a recast of the APD was introduced and what changes were made in relation to the safe third country concept. In 2009, the European Commission presented a proposal amending the 2005 APD. The objective of the proposal was to continue to ensure full respect of fundamental rights and to achieve a true CEAS, which will benefit Member States and refugees alike.113 The European Commission states on its website that “the rules were often too vague and
derogations allowed Member States to keep their own rules, even if these went below basic agreed standards”.114 Therefore, the new Directive needed to ensure more precision and harmonisation.115
With regard to changes made in the light of the safe third country concept, the amended proposal added a new sentence to the old Article 26 (the first country of asylum concept) and now Article 35: “The applicant shall be allowed to challenge the
application of the first country of asylum concept in his/her particular circumstances”.116 A similar amendment was made to the old Article 27 (the safe
third country concept) and now Article 38: “The applicant shall also be allowed to
challenge the existence of a connection between him/her and the third country”.117 As for Article 36, (the European safe third country concept) the requirement of designing a common list of safe third countries has been removed.118
2.5. Evaluation of the 2013 Recast Asylum Procedures Directive
ECRE has written a comment on the proposal to recast the APD, which will be discussed in this paragraph. Although ECRE welcomes the amendments, ECRE is unsatisfied with the fact that the Commission did not fundamentally change the role of the safe third country concept in the Directive.119 ECRE is, and remains an
113 European Commission, Amended proposal for a directive of the European Parliament and of the
Council on common procedures for granting and withdrawing international protection status (Recast), 1.6.2011 (COM(2011) 319 final) 2009/ 0165 (COD), p. 1-4.
114 European Commission, Migration and Home affairs, asylum procedures, available at
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/common-procedures/index_en.htm, accessed on 13-10-2016.
115 Ibid.
116 Article 35 of the Amended Proposal. 117 Article 38 of the Amended Proposal. 118 Article 39 of the Amended Proposal.
119 ECRE, Comments from the European Council on Refugees and Exiles on the amended Commission
opponent of the safe third country concept, because it is likely to weaken the access to asylum procedures and international protection for persons in need thereof.120 It is also an opponent of the European safe third country concept, because it permits Member States to not or not fully examine asylum applications and thereby it denies a person’s particular circumstances. This practice is also likely to lead to a violation of the principle of non-refoulement.121
According to ECRE, the Recast APD allows Member States to examine claims faster, in the sense that national authorities can presume admissibility and well-foundedness of a claim before even interviewing the applicant.122 The applicants, coming from a safe third country, can be sent back to that country, unless they prove otherwise. This has lowered protection standards.
2.6. Proposal for a new Asylum Procedures Regulation
At the moment, a proposal is pending for an APR, which is part of the third phase of harmonization of the CEAS.123 The Commission has chosen for the form of a Regulation, being directly applicable in all EU Member States, because it aims at more harmonization and uniformity in the outcome of asylum procedures between the Member States.124 This means that the applicants for international protection and the authorities can directly rely upon the Regulation. While the Directive required transposition into national law, the Regulation must make sure that all Member States examine asylum applications in the same way.125 Furthermore, the proposal aims to reduce asylum shopping and secondary movements.126 The proposal provides for mandatory presumptions on the Member States, which makes the safe third country concept a mandatory presumption instead of an optional provision.127 This means that Member States will be required not to examine an application on the merits if a
120 Ibid. 121 Ibid.
122 ECRE, AIDA, Admissibility, responsibility and safety in European asylum procedures, 2016, p. 9. 123 European Commission, Proposal for a Regulation of the European Parliament and of the Council
establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM (2016) 467, 13 July 2016. (Commission Proposal for an APR).
124 Ibid, p. 3-4.
125 European Commission- Fact Sheet, Reforming the Common European Asylum System: Frequently
asked questions, 13 July 2016, available at http://europa.eu/rapid/press-release_MEMO-16-2436_en.htm, accessed on 15-12-2016.
126 Commission Proposal for an APR, p. 3-4.
person comes from a first country of asylum or a safe third country.128 At the moment, not all Member States use this concept in their national practice, which brings the risk that Member States are required to reject applications as inadmissible on the basis of a concept that they are not accustomed to use.129
In this proposal, amendments have been made regarding the safe third country concept.130 Most important, the designation of a common list of safe third countries has been introduced again.131 The Commission wants to replace national lists of safe third countries with European lists of safe third countries, while the designation of common lists of safe countries has been condemned by UNHCR.132
The proposal amends the old Article 35 (the first country of asylum concept) and now Article 44 in the sense that the proposal requires the Member States to examine the level of ‘otherwise sufficient protection’ enjoyed by the applicant in a first country of asylum against the same criteria as provided for by the safe third country concept.133
While the Recast Directive states that Member States may take Article 38 into account, those requirements of Article 38 of the Recast have now been added to Article 44 of the proposal, which makes taking them into account obligatory.134 More requirements have been added for establishing ‘sufficient protection’, namely access to the labour market, reception facilities, healthcare and education and a right to family reunification in accordance with international human rights standards.135 This will provide for more protection.
While the Recast APD requires that the applicant must have been recognized as a refugee in the first country of asylum, the proposal only requires that he applicant must have enjoyed “protection in accordance with the Geneva Convention”.136 What this protection should exactly consist of has not been clarified. Another amendment
128 Ibid.
129 ECRE, AIDA 2016 (n122) p. 17. 130 Commission Proposal for an APR. 131 Ibid.
132 ECRE, AIDA 2016 (n122) p. 5. See also UNHCR, Safeguards needed for EU asylum rules on “safe
countries”, 2003 available at http://www.unhcr.org/news/latest/2003/10/3f7ac0577/safeguards-needed-eu-asylum-rules-safe-countries-warns-unhcr.html, accessed on 12-10-2016.
133 Article 35 of the Recast APD, Article 44 of the Commission Proposal for an APR. 134 Article 35 and 38 Recast APD.
135 Article 44(2)(f)(g) of the Commission Proposal for an APR.
made in the proposal is that a connection between the applicant and a safe third country can now also exist when the applicant transited trough a third country ‘geographically close’ to the country of origin.137 These amendments seem to make it easier to send applicants back to a first country of asylum or safe third country and provide them with less protection.
2.7. Has the interpretation of the concept changed?
This paragraph will set out whether the interpretation of the concept has changed from 1992 until 2016, thereby taking into account chapter one, as part of the overall assessment of the concept’s development. From 1992 until 2016, the interpretation of the concept changed in the sense that the London Resolution did not have legal value, or an enforcement mechanism or a legal structure for implementation and the APD does.138 Moreover, the APD is binding on all EU Member States.
According to a UNHCR research from 2010 on the application of the 2005 APD, the safe third country concept had been rarely applied.139 However, in 2015 the EU again believed that it was facing a refugee crisis. Since then, the concept has gained more meaning and has been applied more often.140 For instance, Hungary introduced a list of safe third countries, including Serbia, while this country had been criticized for not respecting fundamental rights and not guaranteeing protection in the asylum process.141 Moreover, on 18 March 2016, the EU-Turkey agreement has been implemented.142 The implementation of this deal was possible because the EU considers Turkey as a safe third country and therefore all irregular migrants entering the Greek Islands from Turkey can be sent back to Turkey.143
137 Article 45(3)(a) of the Commission Proposal for an APR. 138 S. Krisper 2012 (n18) p. 5.
139 UNHCR, 2010 (n97) p. 60. 140 ECRE, AIDA 2016 (n122) p. 18.
141 Hungarian Government Decree 191/2015 (VII. 21.) on the national list of safe countries of origin
and safe third countries. See also AIDA Country Report Hungary: Fourth Update, November 2015, 43-45; ECRE, Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary, October 2015; UNHCR, Hungary as a country of asylum, May 2016.
142 European Council 2016 (n2). 143 Ibid.
