Country of Origin Information
Vogelaar, F.G.H.W.
2020
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Vogelaar, F. G. H. W. (2020). Country of Origin Information: The Essential Foundation for Fair and Credible
Guidance for Decision-making on International Protection Needs.
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Chapter 5
The presumption of safety
tested: the use of Country
of Origin Information in the
national designation of Safe
Countries of Origin
5
1.
Introduction
Many have argued against the legality and fairness of the Safe Country of Origin (SCO) practices applied by the Member States of the European Union (EU).1 To no avail, as the designations of countries of origin as safe has been a reality in Europe for almost three decades.2 The concept is now a seemingly fixed part of the Common European Asylum System (CEAS) by way of articles 36 and 37 of the EU Asylum Procedures Directive (recast APD).3 EU Member States may legally designate a country as safe on the basis of the general presumption of safety where there is ‘generally and consistently no persecution (...) no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.’4 It has long been recognised that the assessment of the presumed safe situation in a country of origin should be based on a wide range of sources of information.5
However, do EU Member States indeed rely on a wide range of sources, including Country of Origin Information (COI) from the European Asylum Support Office (EASO), United Nations High Commissioner for Refugees (UNHCR), the Council of Europe and other international organisations, when analysing whether a country of origin is safe? The aim of the article is to assess the analysis of Country of Origin Information at the basis of SCO policy in the United Kingdom (UK) and the Netherlands. In particular, it will examine the way supportive and contradictory information is weighed in the national policies regarding the Safe Countries of Origin Albania and Kosovo. The assessment shows a lack of use of primary sources, a lack of corroboration of information and a lack of balancing of information. As a result, the policies regarding Albania and Kosovo are not based on properly weighed Country of Origin Information. The material relied on did not always justify the decision that there was generally and consistently no persecution or serious harm in Albania and Kosovo.
Section 2 discusses the methodology of the research at the basis of this article. Section 3 discusses the evolution of the SCO concept and the role of Country of Origin Information in the application of the of SCO concept at the EU level. Section 4 discusses the EASO COI Report Methodology as the COI standard applicable to the use of Country of Origin Information by the Netherlands and the UK in their national SCO policies. Section 5 discusses the application
1 For example, Guy S. Goodwin -Gill, ‘Safe Country? Says Who?’ (1992) 4(2) International Journal of Refugee Law 248; Cathryn Costello, ‘Safe Country? Says Who?’ (2016) 28 (4) International Journal of Refugee Law 601 – 622; European Council for Refugees and Exiles (ECRE), ‘Comments on the Proposal for a Regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin and amending the recast Asylum Procedures Directive (COM(2015) 452)’ (October 2015) 2; Statewatch, ‘EU Divided over list of Safe Countries of Origin – Statewatch Calls for the List to be Scrapped’ (September 2004); Amnesty International, ‘Amnesty International’s Comments on the Amended Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status COM (2002) 326 final’ (February 2003) par 15.
2 For example, Matthew Hunt, ‘The Safe Country of Origin Concept in European Asylum Law: Past, Present and Future’ (2014) 26 (4) International Journal of Refugee Law 500 – 532.
3 Directive 2013/32/EU of the European Parliament and the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast APD) [2013] OJ L 180/60.
4 Annex I recast APD.
5 European Union, ‘Conclusions on Countries in Which There is Generally No Serious Risk of Persecution (London Resolution) (November 1992) par 5; Art 37 (3) recast APD.
of the SCO concept in the UK context as well as the analysis of the use of Country of Origin Information in UK policies regarding Safe Countries of Origin Albania and Kosovo. Section 6 discusses these issues for the Netherlands.
2. Methodology
Originally, the study set out to examine the use of Country of Origin Information in the application of the SCO concept in Belgium, Germany, the Netherlands and the UK. These EU Member States were early advocates of the application of the SCO concept and they maintain (elaborate) lists of designated states. However, research showed that the reports at the basis of the SCO policies in Belgium and Germany are not made public. Regarding Belgium, the designation of a country as safe is based on a confidential advice by the Commissioner General for Refugees and Stateless persons.6 In the context of the proceedings before the Council of State against the designation of Albania as safe, a list of documents consulted by the Commissioner General was published.7 Unfortunately, a list of documents does not show how the information was used in a balanced manner within the legal requirements for a Safe Country of Origin. German SCO policies are based on confidential country reports by the Ministry for Foreign Affairs.8 The country reports can only be accessed by authorised lawyers in a particular appeal procedure.9 The published analysis put before parliament does not include references to Country of Origin Information.10
As a result of the lack of sufficient information in the public domain for a credible analysis of the use of Country of Origin Information in the Belgian and German SCO policies, the study now focuses solely on the Netherlands and the UK. The Netherlands and the UK were not only early advocates of the SCO concept. They were also frontrunners in the professionalising of Country of Origin Information. Both were amongst the first countries to set up dedicated COI units in the 1990s that have developed into specialised units whose core mandate is to assist in providing information for the determination of asylum applications.11 The Netherlands and the UK have played an active role in the practical co-operation on Country of Origin Information within the Common European Asylum System (CEAS) and have lend their extensive experience for the development of EU COI quality standards.12 Considering
6 The Commissioner General as well the Federal Government refuses to publish the advice, see email 2 May 2018 from Coordination et Initiatives pour Réfugiés et Etrangers (CIRE) Belgique.
7 E.g. Council of State (Belgium), No 235.211, 23 Jun. 2016.
8 E.g. Deutscher Bundestag, Erster Bericht zu der Überprüfung der Voraussetzungen zur Einstufung der in Anlage
II zum Asylgesetz bezeichneten sicheren Herkunftsstaaten, Drucksache 19/299, 15 Dec. 2017.
9 Federal Office for Migration and Refugees, Lageberichte/Auskünfte des Auswärtigen Amtes für bevoltmächtigte
Rechtsanwälte in anhängigen Asylverfahren, Feb. 2012; Email of 18 May 2018 of the Information Service
Migration of the Federal Office for Migration and Refugees. A call for relevant country reports through the German Immigration Law Network was unsuccessful.
10 E.g. Deutscher Bundestag, Erster Bericht zu der Überprüfung der Voraussetzungen zur Einstufung der in Anlage
II zum Asylgesetz bezeichneten sicheren Herkunftsstaaten.
11 Patrick Wall, ‘In a Constructive, Informal and Pragmatic Spirit; Thirty years of the Intergovernmental Consultations on Migration, Asylum and Refugees, the World’s First Regional Consultative Process on Migration, Secretariat of the Intergovernmental Consultations on Migration, Asylum and Refugees (IGC)’ (2018) 156.
12 See European Union, ‘Common EU Guidelines for Processing Country of Origin Information (COI)’ (EU Common guidelines) [2008] JLS/2005/ARGO/GC/0, 2 and European Asylum Support Office (EASO), EASO Country Of Origin Information Report Methodology (EASO methodology 2012) (2012) 5.
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the role model status of the Netherlands and the UK regarding the use of COI, it is interestingto study whether they actually provide other EU Member States with good practices in which the SCO concept is correctly applied after a thorough analysis of the available Country of Origin Information in accordance with the appropriate COI quality standards.
The study examines the SCO policies on Albania and Kosovo, because they were among the first countries to be designated safe by the Netherlands and the UK. Also, Albania and Kosovo feature on the proposed EU common list of Safe Countries of Origin. At first glance, reasons such as the number of asylum applications, recognition rates, visa requirements, etc. appear to have been determinative in the designation of these countries. Therefore, it is interesting to study whether the decisions are based on a wide range of sources and whether the situation in Albania and Kosovo can truly be considered safe in accordance with article 37 of the recast APD.
The EASO COI Report Methodology13 was used as the COI standard applicable to the Netherlands and the UK for the purpose of the analysis in this article. As mentioned, the Netherlands and the UK have played an important role in the development of the EASO methodology. Moreover, the EASO methodology has become legally relevant for EU Member States with the adoption of recital (46) in the preamble of the recast APD. The recital states that where Member States apply the SCO concept they should consider, among other documents, the methodology. EU Member States are not obligated to transpose the recital according to article 51 of the recast APD and article 288 of the Treaty on the Functioning of the European Union.14 However, they are obligated to interpret national law in light of the wording and purpose of the directive to achieve the prescribed result.15 From recital (46) of the recast APD, it is obvious that the directive intents that in the application of the SCO concept EU Member States should consult a range of sources of information (article 37(3)) while taking into account the EASO methodology that provides a standard on how to properly assess this information.
The situation is different for the UK as it has opted out of the adoption of the recast APD and as such is not bound by it.16 The UK Home Office used to refer to the EASO methodology as the general principles of COI research in line with which policy and information notes are written. Also, in January 2018 the Independent Chief Inspector of Borders and Immigration recommended that the UK Home Office adhere to the EASO methodology.17 In response to the Independent Chief Inspector’s recommendation, the UK Home Office has removed any references to the EASO methodology in the Country Policy and Information Notes.18 The UK Home Office stated that it views the EASO methodology as guidelines that do not need to be followed to the letter. It stated that it follows the EU Common Guidelines on Processing
13 Ibid.
14 Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1.
15 Case 14/83, Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1984 – 01891. 16 Recital (58) of the preamble of the recast APD.
17 Independent Chief Inspector of Borders and Immigration, An Inspection of the Home Office‘s Production and
Use of Country of Origin Information April – August 2017 (January 2018) 11.
18 Compare UK Home Office, ‘Country Policy and Information Notes, Somalia: Women fearing gender-based violence,’ (April 2018) 2 to UK Home Office, ‘Country Policy and Information Notes, Afghanistan: Unaccompanied Children’ (April 2018) 2.
COI19 and the ACCORD Training Manual.20 Considering that the 2012 EASO methodology is a reiteration of the EU Common Guidelines as well as considering the references to the methodology in the examined Country Policy and Information Notes in this article, the EASO methodology is still considered the most appropriate standard for the purpose of the analysis of the UK Home Office Country Policy and Information Notes in this article. As the EASO methodology is considered an important tool in increasing convergence and quality in decision-making among EU Member States,21 it is argued that the methodology should be followed in detail for the sake of practical co-operation in the EU. Any differences with the COI standards in the EU Common Guidelines and the ACCORD training manual will be discussed in section 4.
The analysis focuses on the period following the implementation of the recast APD in July 2015 up until July 2018. Information provided by the UK and the Netherlands was verified by studying the sources relied upon in the SCO policies on Albania and Kosovo. The sources were assessed in accordance with the standards set by EASO. Sources other than those relied on by the UK or the Netherlands were not researched. UNHCR’s Refworld website22 was used to verify how up to date the information was.
The analysis will not focus on the legality issues surrounding the SCO concept nor will it look into the reduction of procedural safeguards in asylum procedures for asylum applicants from SCOs. It will solely focus on whether the UK and the Netherlands make fair decisions regarding the safety of a country of origin, based on a wide range of sources, in accordance with the current definition of a Safe Country of Origin in the context of the EU.
3.
Safe Countries of Origin in the European context
The following section briefly discusses the evolution of the SCO concept23 as well as the use of Country of Origin Information by the EU institutions in the designation of countries as safe in accordance with current European legislation, namely Article 37(3) recast APD.
19 EU Common Guidelines (n 12).
20 Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Researching Country of Origin Information: Training Manual’ (ACCORD Training manual) (November 2013); UK Home Office, ‘Response to The Home Office response to the Independent Chief Inspector of Borders and Immigration’s report: An Inspection of the Home Office’s Production and Use of Country of Origin Information April–August 2017’ (January 2018) 1.
21 EASO methodology 2012 (n 12) 5; See also European Asylum Support Office (EASO), ‘EASO Country Of Origin Information Report Methodology’ (June 2019) (EASO methodology 2019) 15.
22 Refworld is managed by UNHCR for the purpose of making COI, refugee case law, and refugee legislation available to all persons involved in decision making on asylum applications. Refworld contains a vast collection of reports relating to situations in countries of origin, as well as policy documents and positions, and documents relating to international and national legal frameworks. Refworld was the preferred COI database, rather than, for example, ecoi.net, since Refworld covers more countries, in addition to national legislation and case law <http://www.refworld.org>.
23 For a full discussion on the history of the SCO concept see, for example, Goodwin -Gill (n 1); Hunt (n 2); Costello (n 1); Claudia Engelmann, ‘Convergence against the Odds: The Development of the Safe Country of Origin Policies in EU Member States (1990 – 2013)’ (2014) 16 (2) European Journal for Migration and Law 277 – 302.
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3.1 The Safe Country of Origin concept
A Safe Country of Origin is a non-refugee-producing country.24 It is a country presumed to be generally safe for its nationals, therefore, it is also presumed that an application for international protection by an applicant from a Safe Country of Origin is likely to be unfounded. It would be inconsistent with the 1951 Refugee Convention if these applicants were precluded from applying for international protection. However, the concept has long been used as a procedural tool to increase the burden of proof of the asylum applicant and accelerate asylum procedures.25
The SCO concept was first applied in the early 1990s when several European countries were confronted with an increased demand to admit and receive asylum applicants.26 The concept was originally formalised in the ‘London Resolutions’ in 1992 which aimed to harmonise the ‘approach to applications from countries which give rise to a high proportion of clearly unfounded applications and to reduce pressure on asylum determination systems that are at present excessively burdened with such applications.’27 The Asylum Procedures Directive of 200528 (APD) provided for the first legally binding provisions regarding the SCO concept.
The APD allowed for SCO designations based on an EU common list (article 29 APD) and on a national list (article 30). The EU common list was never realised as the provisions for a SCO list in the APD were annulled by the European Court of Justice (ECJ) over a legal technicality.29 However, EU Member States were free to adopt national lists based on the SCO provisions in article 30, 31 and Annex II of the APD. Annex II APD stated that EU Member States had to base national designations on the legal situation in a country of origin as well as the ‘application of the law within a democratic system and the general political circumstances.’ EU Member States needed to assess whether a country can provide protection against persecution or mistreatment by taking into account:
(a) the relevant laws and regulations of the country and the manner in which they are applied;
(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;
(c) respect for the non-refoulement principle in accordance with the Geneva Convention;
(d) provision for a system of effective remedies against violations of those rights and freedoms.’
24 UN High Commissioner for Refugees (UNHCR), Background Note on the Safe Country Concept and Refugee
Status [1991] EC/SCP/68.
25 UN High Commissioner for Refugees (UNHCR), ‘Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Detailed Research on Key Asylum Procedures Directive Provisions’ (March 2010) 331.
26 UNHCR Background Note on Safe Country Concept (n 24). 27 London Resolution (n 5) par 2.
28 Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status [2005] OJ L 326/13.
Article 23 (4) APD allowed Member States to treat an application from a SCO national as manifestly unfounded. This means that an application could be fast-tracked, and the applicant would be burdened with the difficult task of providing credible evidence to rebut the presumption of safety within strict time limits.30
In 2013, the recast of the APD brought changes to the EU rules regulating the SCO concept. The recast APD aims to ensure a more consistent application throughout the EU Member States as well as a higher level of protection for asylum applicants from SCOs than under the original APD. For example, the recast APD no longer allows Member States to derogate from the criteria set in the Directive for considering a country of origin safe.31 EU Member States now need to regularly review the conditions in countries designated safe in accordance with article 37 (2) recast APD. Moreover, the European Commission is to be notified in case of a SCO designation.32 Despite the strengthening of these important safeguards, discrepancies between EU Member States designations of Safe Countries of Origin are persistent.33
3.2 The role of Country of Origin Information in the EU policies on Safe Countries of Origin
Article 37 (3) of the recast APD explicitly requires Member States to conduct their safety assessments by reference to a range of sources, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations. However, the development of the SCO concept at the European level shows that Country of Origin Information is not necessarily the most important consideration in determining whether a country of origin can be presumed safe.
Low refugee recognition rates, indicating a certain level of safety in a country of origin, has always been considered a relevant element.34 However, high recognition rates in some EU Member States could dispel the assumption that asylum applicants with certain nationalities do not need protection.35 According to the European Commission, Member States should also pay particular attention to a country of origin’s record before the ECtHR. A low number of violations found by the ECtHR presumably means that the ECtHR is an effective safeguard guaranteeing remedies against human rights violations.36 However, the European Commission
30 Hunt (n 2) 511.
31 Compare article 30 APD to articles 36 and 37 recast APD.
32 Hunt (n 2); European Council for Refugees and Exiles (ECRE), Information Note on the Asylum Procedures
Directive (recast) (2014) 43.
33 E.g. Henry Martenson and John McCarthy, ‘In General No Risk of Persecution: Safe Country of Origin Practices in Nine European States’ (1998) 11 (3) Journal of Refugee Studies 304 – 325; Asylum Information Database (AIDA), Common asylum system at a turning point: Refugees caught in Europe’s solidarity crisis (2015) 78; European Commission, ‘Information note on the follow-up to the European Council Conclusions of 26 June 2015 on “safe countries of origin”’ (2015).
34 London Resolution (n 5) par 4; Proposal for a Regulation of the European Parliament and the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, COM (2015) 452 final 2015/0211 (COD) [2015] 3.
35 ECRE (n 1) 9-10.
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fails to specify relevant elements that would give proper meaning to the number of violationsfound by the ECtHR.37
Where the EU Council and European Commission have referred to Country of Origin Information as the basis for considering a country of origin safe, the use of it appears substandard. In March 2004, the EU Council first proposed an EU common list of Safe Countries of Origin. The European Commission as well as several Member States were critical of the Country of Origin Information provided by the Council in support of the countries on the first list. However, it did not prevent them from supporting the inclusion of the countries on the EU SCO common list.38 As mentioned, the common list was never realised.
The European Commission proposed a new regulation for the establishment of an EU common list of Safe Countries of Origin in 2015. The European Commission considered the Western Balkans and Turkey safe,
on the basis of all relevant information at its disposal, in particular reporting from the European External Action Service (EEAS) and the information from Member States, the European Asylum Support Office (EASO), the Council of Europe, the United Nations High Commissioner for Refugees (UNHCR) and other relevant international organisations.39
The European Commission neither provided any specific reports by the abovementioned sources nor footnotes with specific references for its statements relating to the safety criteria. The European Commission refers to two country-specific dedicated EEAS reports, dating 31 August and 1 September 2015. There are no such reports available in the EEAS public register. Moreover, there were no (public) EASO COI reports available on the Western Balkans and Turkey at the time of the European Commission’s proposal in 2015. The outcome of the EASO expert-level meeting of 2 September 2015 is not in the public domain. Finally, the publicly available information from the Council of Europe, UNHCR and other relevant international organisations was not specified.
Therefore, it is impossible to establish on how wide a range of sources the designations of the European Commission are based, whether primary sources were used, whether information was corroborated, and whether the conclusions regarding the safety situation were based on properly weighed Country of Origin Information. That Country of Origin Information might not have been analysed properly follows from, for example, the fact that the European Commission stated that isolated or individual cases of domestic violence still occurred in Albania. Many publicly available sources claimed the opposite, that domestic violence was widespread, and considered a serious problem.40 Moreover, the European Commission’s emphasis was on the protection available in Albania and Kosovo, in particular by the ECtHR, rather than on the existence of persecution and/or serious harm.
37 ECRE (n 1) 9-10; Costello (n 1) 611. 38 Statewatch (n 1); Hunt (n 2) 507-508.
39 European Parliament and the Council, Proposal for an EU common list of safe countries of origin (n 34) 3. 40 E.g. Republic of Albania Ombudsman, ‘Special Report on the Violence Against Women and the activity of the
Ombudsman, Tirana, Avocati I Poppulit’ (2012); National Institute of Statistics (INSTAT) Albania, ‘Domestic Violence in Albania, National population based Survey’ (2013); Republic of Albania Ombudsman, ‘Annual Report on the People’s Advocate 2014’ (2015) para 3.15.6; Amnesty International, ‘Amnesty International Report 2014/15 – Albania’ (2015) 53 – 54; United States Department of State, ‘2014 Country Reports on Human Rights Practices – Albania’ (2015) section 6; UN Children’s Fund (UNICEF), ‘Child Notice Albania’ (2015) 73.
The European Commission did not set a good example for the EU Member States. Yet, EU Member States were quick to follow. For example, the Netherlands considered Albania and Kosovo safe referring to the high influx of asylum applicants from the Western Balkans and strong indications brought forward by the EU Justice and Home Affairs Council that these countries could be considered safe. The strong indications of safety included the fact that the majority of national SCO lists already included these countries and the fact that the countries were exempted from visa requirements.41 How careful was the Dutch assessment of the safety of the Western Balkans?
The next section will discuss the relevant standards in the EASO COI Report Methodology in accordance with which the Dutch and UK government should have assessed the available information on the safety situation in the Western Balkans. It will also discuss any possible conflicting standards included in the EU common guidelines on COI and/or the ACCORD training manual. In June 2019, EASO published a revised COI methodology after it identified the need to clarify certain concepts.42 Although, the guiding COI principles have not changed, it is interesting to note that the 2019 methodology has clarified how information should be presented.
4.
The EASO COI Report Methodology
The regulation establishing EASO states that EASO should organise, promote, and coordinate activities relating to information on countries of origin, in particular, the development of a common format and a common methodology for presenting, verifying and using information on countries of origin.43 This has led to the EASO COI Report Methodology in which EASO emphasises that ‘a common approach to COI is an important aspect of the practical co-operation activities of EASO, with the ultimate aim of increasing convergence and ensuring ongoing quality of Member States’ decision-making procedures.’44
The EASO COI Report Methodology is a reiteration of the Common EU Guidelines for Processing of COI. In 2006, the European Commission acknowledged the importance of access to reliable Country of Origin Information in the assessment of the need for international protection and called for more convergence on collection and analysis of Country of Origin Information as this would contribute to levelling the asylum playing field.45 The European Commission considered the guidelines a first step towards the longer-term objective of harmonised application of Country of Origin Information.46 The guidelines aim to improve
41 Parliamentary documents (Netherlands), TK 2015 – 2016, 19.637 n. 2076 (3 November 2015). 42 EASO methodology 2019 (n 21).
43 Regulation (EU) No 439/2010 of the European Parliament and the Council of 19 May 2010 establishing a European Asylum Support Office [2010] OJ L 132/11 Article 4 (d).
44 EASO COI Methodology 2012 (n 12)5; EASO COI Methodology 2019 (n 21) 15.
45 European Commission, ‘New structures, new approaches - improving the quality of decision making in the common European asylum system’ (COM (2006) 67 final [2006] para 12.
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the quality of decision-making within the CEAS by providing ‘basic common criteria onhow to process transparent, objective, impartial, and balanced factual COI, with the aim of facilitating EU-wide exchange and use of such information.’47 The guidelines have been developed by the representatives of the COI Units from several different EU Member States, including the immigration services from the Netherlands and the UK. The UK COI Service again assisted with the development of the EASO COI Report Methodology in 2012.
The EASO COI Report Methodology focuses on improving COI reports. However, it can also serve as the basis for, for example, SCO policy.48 SCO policy provides an opinion on the safety situation in a country of origin within a certain set of legal limits and aims to influence the (consistency of the) decision-making process. However, the analysis of the situation in a country of origin, upon which the opinion is based, should reflect the use of objective information in accordance with COI quality standards concerning the use of up to date information, primary sources, corroboration of information, and the balancing of information.
4.1 Up-to-date information
According to the EASO COI Report Methodology, Country of Origin Information should be current. This means that information should be ‘time-relevant, up-to-date and/or the most recent information available and where the events in question have not changed since the release of the information.’49
4.2 Primary sources
The EASO COI Report Methodology defines a primary source as follows, ‘a primary source is a person or institution closely or directly related to (i.e. having first-hand information of) an event, fact or matter.’50 Unlike the ACCORD training manual,51 the EASO COI Report Methodology includes the definition of an ‘original source’ or ‘the person or institution who documents the event, fact or matter for the first time. The original source can also be the primary source.’52 The secondary source ‘is the person or institution who/ which reproduces the information documented by the original source.’ The EASO COI Report Methodology states that while researching Country of Origin Information, every effort should be made to find the original or primary source of information. This will prevent round tripping, false corroboration, and misquoting of information.53
47 EU Common guidelines (n 12) 2. 48 EU Common guidelines (n 12) 2.
49 EASO methodology 2012 (n 12) 10; See also, EASO methodology 2019 (n 21) 12; EU Common guidelines (n 12) 12; ACCORD Training manual (n 20) 33.
50 EASO methodology 2012 (n 12) 8; See also, EASO methodology 2019 (n 21) 12; EU Common guidelines (n 12) 6; ACCORD Training manual (n 20) 85.
51 ACCORD Training manual (n 20) 85.
52 EASO methodology 2012 (n 12) 8; See also EASO methodology 2019 (n 21) 12; EU Common guidelines (n 12) 6. 53 EASO methodology 2012 (n 12) 8; See also, EASO methodology 2019 (n 21) 13; EU Common guidelines (n 12)
7 – 8; ACCORD Training manual (n 20) 87, 136. Round-tripping concerns information that is ‘being quoted differently in several sources, but which has to be referred in fact to a single original source of information.’
4.3 Corroboration of information
According to the EASO COI Report Methodology, all information should be cross-checked with information from other (types of) sources whenever possible, unless it is an obvious or undisputed fact.54 The EASO COI Report Methodology recommends the use of different types of sources, such as, governmental sources, media, international Organisations, and NGO’s as this will help to ensure a balance of information is obtained and presented in the report. 55 The aim is to consult ‘a well-balanced range of sources in order to reflect different perspectives.’56 According to the EASO COI Report Methodology, ‘[c]orroborating information supports or strengthens the accuracy and reliability of information by finding matching information from multiple and different kinds of sources with accounts of what occurred that are independent of one another.’57
The 2012 EASO COI Report Methodology states that ‘wherever possible the information provided by one source should be corroborated with information from another source (double-checked) and additional sources as appropriate (multi-checked).’58 The 2019 EASO COI Report Methodology clarifies in what situations there is a strong need to corroborate information and when there is a ‘lower need’ for corroboration.59 The ACCORD training manual suggests corroboration of information central to a decision by using ‘three different sources and different types of sources [...] that independently provide information on the research issue at hand.’60
The minimum requirement is that every piece of information is referenced by one source, preferably the original/primary source.61 Yet, transparency requires to ‘be clear and open about the methods for how research decisions were made, information was obtained, assessed, and presented,’ which includes making every piece of information traceable to its original/primary source.62 Also, the ACCORD training manual requires the full cross-checking process to be reported in detail, including the referencing of all the sources used in the research process.63
54 EASO methodology 2012 (n 12) 10; See also EASO methodology 2019 (n 21); EU Common guidelines (n 12) 12. Interestingly, the 2019 EASO methodology states that the disclaimer in a COI report no longer needs to state that all information presented has been cross-checked, Compare the EASO methodology 2012 (n 12) 12 to EASO methodology 2019 (n 21) 21, and EU Common guidelines (n 12) 17.
55 EASO methodology 2012 (n 12) 10; See also, EASO methodology 2019 (n 21) 14; EU Common guidelines (n 12) 7; ACCORD Training manual (n 20) 134.
56 EASO methodology 2012 (n 12) 6; See also, EASO methodology 2019 (n 21) 7; EU Common guidelines (n 12) 7; ACCORD Training manual (n 20) 134.
57 EASO methodology 2012 (n 12) 8; See also EASO methodology 2019 (n 21) 14; EU Common guidelines (n 12) 7; ACCORD Training manual (n 20) 134.
58 EASO methodology 2012 (n 12) 10; See also EU Common guidelines 2019 (n 12) 12. 59 EASO methodology 2019 (n 21) 14 – 15.
60 ACCORD Training manual (n 20) 134.
61 EASO methodology 2012 (n 12) 11; See also, EASO methodology 2019 (n 21) 20; EU Common guidelines (n 12) 16.
62 EASO methodology 2012 (n 12) 10; See also EASO methodology 2019 (n 21) 7; EU Common guidelines (n 12) 15. 63 ACCORD Training manual (n 20) 165
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4.4 Balancing of information
Country of Origin Information should be presented in a factual and objective manner. According to the EASO COI Report Methodology, this means that the facts should be presented without bias, based on information that has been assessed and balanced and put in the right context.64 All sources as well as their information should be selected, assessed and validated against the following COI quality standards: Reliability, objectivity, accuracy, currency, transparency and traceability.65
First, sources should be assessed by asking who is providing the information. What information is provided by the source? Why is the source providing this information? How is the information presented? And when was the information gathered and provided?66 The EASO COI Report Methodology only requires a description of sources when validity questions are raised in view of the quality standards or where it concerns lesser known sources. 67 Where only one source can be found, which provides information that should normally be cross-checked and corroborated, the source should also be briefly described taking into account the context from which the source is providing information. For example, whether the country and/or situation is widely reported on, whether the country has an active and free press, whether (self-)censorship takes place, and whether the source in question is uniquely placed to document the information at hand.68
Second, information should be validated ‘by way of scrutinising the origin of information provided by every source, and by way of cross-checking, corroborating and balancing the information with information of other sources.’69 The EASO COI Report Methodology requires the reporting of the fact that no information has been found, including referencing the sources that have been consulted. Moreover, it requires relevant and contradictory information on a certain subject to be presented. ‘The source assessment should be explicitly presented in the report in order to assist the reader in assigning weight to such information.’70 Third, the validated sources and their information should be balanced in an analysis. The analysis should be a neutral assessment of the available information which can be done by breaking the central topic down into essential issues. The analysis should describe the different issues and how they relate to one another.71 The 2019 EASO COI Report Methodology introduced the term ‘synthesising’ of relevant information in its methodology to clarify what is meant by analysis:
64 EASO methodology 2012 (n 12) 10; See also, EASO methodology 2019 (n 21) 7; EU Common guidelines (n 12) 12, 14, ACCORD Training manual (n 20) 134.
65 EASO methodology 2012 (n 12) 10; See also, EASO methodology 2019 (n 21) 12; EU Common guidelines (n 12) 12; ACCORD Training manual (n 20) 31 – 35.
66 EASO methodology 2012 (n 12) 9; See also, EASO methodology 2019 (n 21) 13; EU Common guidelines (n 12) 8 – 9; ACCORD Training manual (n 20) 89.
67 EASO methodology 2012 (n 12) 9, 13; See also, EASO methodology 2019 (n 21) 13.
68 EASO methodology 2012 (n 12) 9; See also, EASO methodology 2019 (n 21) 16; EU Common guidelines (n 12) 10; ACCORD Training manual (n 20) 136.
69 EASO methodology 2012 (n 12) 10; See also, EASO methodology 2019 (n 21) 14 – 15; EU Common guidelines (n 12) 12 – 13; ACCORD Training manual (n 20) 134 – 135.
70 EASO methodology 2012 (n 12) 11; See also, EASO methodology 2019 (n 21) 16; EU Common guidelines (n 12) 13; ACCORD Training manual (n 20) 165.
71 EASO methodology 2012 (n 12) 10, 13; See also, EU Common guidelines (n 12) 13; ACCORD Training manual (n 20) 134.
The synthesis reflects the analytical COI process and its components, namely the structuring of the content and the sorting of information along this structure, the source assessment and validation of information, including cross-checking of information. The drafter synthesises similar statements found in sources, presenting corroborating or contradictory information together, and makes the comparison clear for the reader.72
The 2019 methodology also introduces the term ‘COI conclusions’ which aim to highlight main patterns in the analysed information that can assist the user of a COI report to come to an informed conclusion relevant to their tasks.73 Therefore, the COI conclusions can be used by policy makers in their legal assessment in national policies regarding specific countries of origin.
5.
The role of Country of Origin Information in UK
policies on Safe Countries of Origin
The UK is bound by the APD but has opted out from the recast APD. Therefore, the UK was still able to derogate from the SCO criteria in Annex I recast APD. Now the UK has left the EU, it will be able to establish its own SCO policy. This section discusses the current application of the SCO concept in the UK context: the legal framework, the policy framework, and the policies regarding Albania and Kosovo. Furthermore, it analyses the UK Home Office’s Country Policy and Information Notes on Albania and Kosovo which shows a lack of the use of primary sources, corroboration and balancing of information. 74
5.1 The UK context
5.1.1 The legal framework
Article 94 (5) of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) determines that the Secretary of State may, by order, designate a State safe if (s)he is satisfied that there is in general no serious risk of persecution of persons in that State or part of that State, and the removal to that State will not in general contravene the UK’s obligations under the Human Rights Convention. The Secretary of State should have regard to all the circumstances in
72 EASO methodology 2019 (n 21) 17 – 18. 73 Ibid 19.
74 See also, for example, Stephanie Hubert, ‘The Use of COI in Operational Guidance Notes’ in Immigration Advisory Service (IAS), ‘The Use of Country of Origin Information in Refugee Status Determination: Critical Perspectives’ (2009).
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a country of origin, including the laws and how they are applied.75 In accordance with UKjurisprudence, the designation of a country as safe needs to be rational in light of the known facts about the country of origin.76 However, it is generally accepted that the State Secretary has a wide margin of appreciation in designating a country safe.77 UK legislation does not specify any mechanism for the State Secretary to review the safety situation in countries that have been designated safe.
Asylum applications from applicants from designated countries are considered clearly unfounded, applicants may be detained, and the procedure fast-tracked. An appeal against a refusal may only be made from outside the UK.78 The order to designate a country safe itself may also be challenged before the Asylum and Immigration Chamber of the First-tier Tribunal, in case the criteria in article 94 (5) NIAA 2002 are not met.
There are currently orders in force for Albania, Macedonia, Moldova, Bolivia, Brazil, Ecuador, South Africa, Ukraine, Kosovo, India, Mongolia, Bosnia-Herzegovina, Mauritius, Montenegro, Peru, South Korea and Serbia. Ghana, Nigeria, Gambia, Kenya, Liberia, Malawi, Mali and Sierra Leone are only considered safe for men.79
5.1.2 The policy framework
Since 2014, the UK Home Office Country Policy and Information Team (CPIT) is responsible for providing balanced Country of Origin Information and the advice on development of country-specific asylum policies, including the review of the situation in Safe Countries of Origin.80 Over the years, several different COI products have been merged into Country Policy and Information Notes (CPINs) that are now being published by the CPIT for the 20 countries that generate the largest amount of asylum claims. For key countries, CPIT publishes several separate CPINs that are more concise and focus on main issues raised in asylum claims. Each CPIN consists of policy (or analysis) and COI sections.81 The first section includes the UK Home Office’s view on a particular situation through the analysis of Country of Origin Information in light of the applicable protection standards.82
The work of the CPIT is overseen by the Independent Advisory Group on Country Information (IAGCI), under the auspices of the Independent Chief Inspector. The IAGCI advises the Chief inspector who makes (non-binding) recommendations about the content
75 Article 94 (5D) NIAA 2002
76 High Court, R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; High Court, R (on the
application of Zakir Husain) v Secretary of State for the Home Department [2005] EWHC 189 (Admin); Supreme
Court, R (on the application of Brown) Jamaica [2015] UKSC 8, para 36.
77 R (Husan) v SSHD (n 93) para 50; MD (Gambia) v Secretary of State for the Home Department [2011] EWCA Civ
121.
78 Article 94 (2) NIAA 2002 79 Article 94 (4) NIAA 2002.
80 For an overview of the evolution of the UK Home Office COI unit and its COI products, see Independent Chief Inspector of Borders and Immigration (n 17) 13 – 14; Public Law Project, ‘Best Practice Guide to Asylum and Human Rights Appeals’ (2018) chapter 17, available at: https://www.ein.org.uk/bpg/contents (accessed 4 September 2019); R. Gibb and A. Goode, ‘Do the Facts Speak for Themselves? Country of Origin Information in French and British Refugee Status Determination Procedures’ (2013) 25(2) International Journal of Refugee Law 291 – 322, para 3.
81 Independent Chief Inspector of Borders and Immigration (n 17) 25. 82 UK Home Office response (n 20) 2.
and quality of the COI products to the UK Home Office.83 The Chief Inspector has reported on the use of Country of Origin Information in general as well as on specific COI products, including CPINs on Albania.84
5.1.3 Designation of Albania and Kosovo
Albania was designated safe in 2003,85 Kosovo in 2010.86 The latter designation involved a technical amendment as Kosovo had already been designated safe when it was still a province of Serbia. There is no COI included in the orders designating Albania and Kosovo safe, they simply state that the Secretary of State is satisfied that there is in general no serious risk of persecution of persons entitled to reside in the designated states. However, from the debate in the House of Lords it follows that the discussion on the designation of Albania and Serbia centred around statistical evidence on asylum claims rather than the safety situation in Albania or Serbia (Kosovo).87 It was emphasised during the debate that the Secretary of State had the ongoing obligation to keep under review whether the designated countries continued to meet the test set in article 94 NIAA 2002 and that COI would have to be the crucial element in that review.88
The CPIT has published separate CPINs for Albania on blood feuds, trafficking, domestic violence, sexual orientation, and ethnic minorities.89 Kosovo is not included in the top 20 asylum countries in the UK. As a result, the last COI product on Kosovo dates back to 2009.90 Seemingly, it has not been reviewed whether the situation in Kosovo still meets the conditions in article 94 NIAA 2002. Moreover, the CPINs on Albania do not properly examine the available Country of Origin Information in light of the conditions set in article 94 NIAA 2002 and the information notes do not adhere to the EASO COI Report Methodology.91
83 Public Law Project (n 80) Chapter 17
84 Independent Chief Inspector of Borders and Immigration, An Inspection of Country of Origin Information:
March 2017 Report (2017).
85 The Asylum (Designated State) Order 2003, No. 970, 31 March 2003. 86 The Asylum (Designated State) Order 2010, No. 561, 2 March 2010. 87 House of Lords debate 31 March 2003 vol 646 cc1114-27.
88 Ibid cc1118.
89 The CPINs on Albania are available at: https://www.gov.uk/government/publications/albania-country-policy-and-information-notes (accessed 4 september 2019)
90 United Kingdom: Home Office, ‘Country of Origin Information Key Documents: Kosovo’ (2009). 91 See also Independent Chief Inspector of Borders and Immigration (n 17) 9.
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5.2 Analysis of the Country Policy and Information Notes
The analysis in this section focuses on the sources relied on by the UK Home Office in the CPINs reviewing the situation in Albania from July 2015 until July 2018.92 In total, 13 country information notes and close to 850 references were examined. These are the most important findings.93
5.2.1 Lack of use of primary sources
The study of the CPINs showed that the UK Home Office often relied on sources that do not use references, leaving the primary source and origin of the information unknown.94 Regularly, quotes were taken out of executive summaries or abstracts rather than out of a report’s body.95 Summary information was hardly ever sourced. Moreover, it missed the necessary context to properly verify the reliability of the information. The most remarkable example of this is the UK Home Office’s reliance on a report by the Norwegian COI Centre Landinfo on family and marriages in Albania. The report, written in Norwegian, includes a two-paragraph summary in English which states that arranged marriages are becoming less and less common.96 The origin of the information is unknown. Additionally, the meaning of arranged marriages in the context of the Landinfo report is lost. An arranged marriage is not necessarily the same as a forced marriage under which topic the Norwegian information is included in the CPIN on Domestic Violence. Therefore, the information might not have been specifically relevant for the CPIN.
Furthermore, the UK Home Office often relied on secondary sources instead of the source that first reported the information. For example, in the 2016 CPIN on Domestic Violence the UK Home Office directly relied on data from a 2013 survey by the National Institute for 92 1. UK Home Office, ‘Country Information and Guidance - Albania: Background information, including actors of protection, and internal relocation’ (August 2015) version 1.0; 2. UK Home Office, ‘Country Information and Guidance - Albania: Trafficking’ (September 2015); 3. UK Home Office, ‘Country Information and Guidance - Albania: Women fearing domestic violence’ (April 2016) version 1.0; 4. UK Home Office, ‘Country Information and Guidance Albania: Blood feuds’ (July 2016) version 2.0; 5. UK Home Office, ‘Country Information and Guidance - Albania: Female victims of trafficking’ (July 2016) version 5.0; 6. UK Home Office, ‘Country Information and Guidance - Albania: Sexual orientation and gender identity’ (August 2016) version 2.0; 7. UK Home Office, ‘Country Policy and Information Note - Albania: Ethnic minority groups’ (October 2016) version 2.0; 8. UK Home Office, ‘Country Policy and Information Note - Albania: Sexual orientation and gender identity’ (December 2016) version 3.0; 9. UK Home Office, ‘Country Policy and Information Note - Albania: Sexual orientation and gender identity’ (May 2017) version 4.0; 10. UK Home Office, ‘Country Policy and Information Note - Albania: Ethnic minority groups’ (May 2017) version 3.0; 11. UK Home Office, ‘Country Policy and Information Note - Albania: Background information, including actors of protection, and internal relocation’ (July 2017) version 2.0; 12. UK Home Office, ‘Country Policy and Information Note Albania: Women fearing domestic abuse’ (December 2017) version 2.0; 13. UK Home Office, ‘Country Policy and Information Note Albania: People trafficking’ (June 2018) version 6.0.
93 The study also revealed concerns regarding the relevancy of certain sources and how up to date some of the information was. However, these findings will not be discussed as they were mostly an issue in the earlier CPIN’s and not so much in the more recent CPIN’s.
94 E.g. CPIN Ethnic minorities groups May 2017 (n 93) footnotes 2, 4, 5, 6, 7, 8, 9, 12, 15, 17, 19, 23, 24, 25, 28, 32, 33, 34, 35, 37, 40, 42, 46, 47, 48, 54, 55, and 56. This means that at least 28 sources, out of the 64 sources, relied on unreferenced information.
95 E.g. CPIN Background information July 2017 (n 92) footnotes 4, 5, 24, 63, 64, 65
96 CPIN Women fearing domestic abuse December 2017 (n 92) footnote 110; Landinfo. ‘Albania: Familie og ekteskap’ (June 2015).
Statistics Albania (INSTAT)97 and a baseline study report by the Data Centrum Research Institute.98 However, it also relied on other sources reporting on the survey and study report.99 Some of the sources relied on in the 2017 CPIN on Domestic Violence continued to refer to the 2013 survey by INSTAT.100 On several other occasions, the CPIN relied on secondary sources rather than on publicly accessible primary sources.101 The UK Home Office often failed to identify the primary source in the quote included in the CPIN.
The frequent use of secondary sources over primary sources, without always properly identifying the latter, and the use of sources that rely on unreferenced information leads to round tripping. This gives the users of the CPINs a false impression of who the author is and how up to date the information is. Additionally, the analysis showed that false corroboration was a real concern.
5.2.2 Lack of corroboration of information
As a general principle CPINs state that ‘multiple sourcing is used to ensure that the information is accurate, balanced and corroborated, so that a comprehensive and up-to-date picture at the time of publication is provided (...).’ In line with the EASO COI Report Methodology,102 information should be double and multi-checked with information from Governmental sources, media, international organisations and NGOs. The study of the CPINs showed that relevant issues were often covered by only limited sources because of the following problems. First, in general the studied CPIN’s appeared to rely on a wide range of sources. However, upon closer examination most sources were only used once or twice, and a few sources were relied on disproportionately.103 For example, the June 2018 CPIN on Trafficking was mostly covered by the UK 2017 Fact-Finding Mission (FFM) report.104 Most of the FFM’s sources were governmental sources, such as the Albanian government and/or French and American Embassy workers, sometimes corroborated by information from local NGOs and the media (Balkan Investigative Reporting Network). Not all sources were evidently primary sources. There were 6 other sources of which the US Department of State and the Council of Europe Group of Experts on Action Against Trafficking of Human Beings (GRETA) were the second and third most referenced sources. These governmental sources provided mostly unreferenced information.
Second, certain issues were sometimes only covered by one or two sources. For example, in the December 2017 CPIN on Domestic Violence, the discussion on domestic law is only covered by the US Department of State and the Council of Europe’s Group of Experts 97 INSTAT (n 40).
98 Data Centrum Research Institute, ‘Baseline Study Report on Domestic Violence and Albanian state police’ (October 2012).
99 CPIN Women fearing domestic violence April 2016 (n 92) footnotes 4, 6, 7, 8, 13, 36, 37, 38, 51 and 57. 100 CPIN Women fearing domestic abuse December 2017 (n 92) footnotes 2, 9, 16, 28, 63, and 94.
101 Ibid footnotes 2, 9, 10, 16, 21, 27, 28, 44, 47, 61, 63, 64, 65, 66, 74, 79, 81, 82, 84, 92, 93, 94, 98, 99, 101, 105, 106, 108, 109, 113, and 114.
102 See section 4.3, the EU Common guidelines (n 12) and the ACCORD Training manual (n 20) also require the use of (three) different kinds of sources.
103 E.g., see also, Independent Chief Inspector March 2017 report (n 84) recommendation 2.3.
104 73 out of 121 footnotes referenced the FFM report; A discussion of FFM reports is outside the scope of this article, for an overview of criticism on FFM reports see, for example, Public Law Project (n 80) paras 17.13 – 17.23A.
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on Action against Violence against Women and Domestic Violence (GREVIO).105 Theinformation discussed several different issues in a disorderly fashion106 and none of the issues were discussed elaborately. Moreover, both sources relied on unreferenced information. The material on the resolution of domestic violence complaints in practice, arguably the most relevant information, relied on 4 different sources. However, most of the discussion on execution of (Emergency) Protection Orders was based on unreferenced information from GREVIO. The contribution of the other sources was minimal, lacked context and possibly relevancy.107
Third, it appeared that information was corroborated, but sources regularly referred to each other or to the same primary source. This resulted in false corroboration. For example, the June 2018 CPIN on Trafficking stated concerns regarding the effectiveness of the police identifying and referring victims of trafficking. The UK Home Office referenced three sources, namely the FFM, the US Department of State and the US Department of Labor. One of the sources for the FFM was a human rights officer for the US Embassy in Tirana.108 The US Embassy is also the source of information for the US Department of Labor109 and the most likely source of the US Department of State. So, the concerns regarding the effectiveness of the police led back to the same primary source, and therefore, the information is not truly corroborated. For the information to be credible, the UK Home Office should have corroborated it with material from other EU Member States, EASO, Governmental or international organisations, NGOs and the media.
5.2.3 Lack of balancing of information
On rare occasions did the CPIN country information section include a short description of a source.110 However, the sources and their information were never discernibly assessed for reliability.111 The assessment of a source is crucial to establish the weight of a source in relation to other sources and the conclusions that can be drawn from the information. Nevertheless, the analytical or balancing process, of contradictory and supportive information, was not made visible. As a result, the analysis or policy guidance112 was not based on properly weighed Country of Origin Information and did not always support the conclusions by the UK Home Office.
105 CPIN Women fearing domestic abuse December 2017 (n 92) footnotes 15 – 19.
106 First, rape was discussed followed by spousal rape, psychological violence, then back to a discussion on rape, non-serious intentional injury, and again, back to rape.
107 CPIN Women fearing domestic abuse December 2017 (n 92) footnotes 32 – 42; The UN Committee for the Elimination of Discrimination Against Women mentioned alimony, but the issue was not further discussed. The US State Department discussed police training, which is discussed later in a separate paragraph. Both issues needed more context to understand the exact relevancy for bringing up the issues in this paragraph.
108 See UK Home Office, ‘Report of a Home Office fact-finding mission to Albania, 31 October to 7 November 2017’ (HO FFM report 2017) (February 2018) paras 2.4.1 to 2.4.5.
109 United States Department of Labor, ‘2016 Findings on the Worst Forms of Child Labor (September 2017) 5. 110 E.g. CPIN Women fearing domestic abuse, December 2017 (n 92) footnote 1.
111 On reliability of sources see, for example, Public Law Project (n 80) para 17.8.
112 As a response to the criticism by the Independent Chief Inspector, in the more recent CPINs the ‘Policy guidance section’ has been replaced by an ‘Analysis section.’
For example, the Analysis section in the June 2018 CPIN on Trafficking stated:
Although reports relied on by the U[pper] T[ribunal] in TD and AD indicated that 18% of women referred to shelters had been subject to re-trafficking, Different and Equal, an NGO working with victims of trafficking, told the HO FFM in 2017 that the figure is now 4 to 5%. Re-trafficking has become a less common occurrence, with a very small percentage of women willingly leaving the security of shelters or re-integration assistance and being re-trafficked.113
The reports relied on by the Upper Tribunal114 in the country guidance case TD and AD were in fact only one report by the International Organisation for Migration on the UN Program ‘Support to Social Inclusion in Albania.’ The report is dated January 2015. Yet, the 18% of women being referred to shelters that have been subject to re-trafficking originated from a report by the National Coalition of Anti-Trafficking Shelters over the period October 2009 to September 2010.115 The information of the Coalition is relevant, as it covers the government shelters plus three NGO shelters. However, the information is more out-of-date than the UK Home Office made it appear. The 4 to 5% mentioned to the HO FFM in 2017 is an educated guess by the NGO interviewed for the FFM and covers only their own shelter.116 The question is how representative that number is for all the other shelters. It was not clear why the UK Home Office attached substantive weight to the percentage mentioned by the one NGO in the FFM report. Both, the report by the International Organisation for Migration and the NGO are not particularly reliable, as the information is either out-of-date or not representative or substantiated by actual numbers. The information certainly did not warrant the conclusion that re-trafficking is a less common occurrence. In this case, the country information section on re-trafficking would not have enlightened a more thorough user of the CPIN; Neither the information relied on by the Upper Tribunal117 is discussed nor any other corroborate information.118
5.2.4 Conclusion: Unsubstantiated presumption of safety
The studied CPINs often missed the connection to the legal requirements for the presumption of safety in Albania. Rather, the emphasis of the CPINs was on the protection after instances of persecution and/or serious harm or the possibilities of internal relocation. For example, the 113 CPIN People trafficking, June 2018 (n 92) para 2.3.6.
114 The Immigration and Asylum Chamber of the UK Upper Tribunal is responsible for handling appeals against decisions made by the First-tier Tribunal (Immigration and Asylum) relating to visa applications, asylum applications and the right to enter or stay in the UK. It also handles applications for judicial review of certain decisions made by the Home Office, normally relating to immigration, asylum and human rights claims. 115 International Organisation for Migration (IOM), ‘United Nations Program, Support to Social Inclusion in
Albania, Profile of the Situation of Trafficking Victims and Efforts for Social Inclusion (January 2015) 36, footnote 70.
116 HO FFM report 2017 (n 108) para 2.10.
117 This is another example of a lack of the use of primary sources; The UK Home Office relied on the Upper Tribunal relying on an IOM report relying on a report from the National Coalition on Anti-Trafficking Shelters. 118 CPIN People trafficking June 2018 (n 92) para 10.9.1. The second source, a journalist from the Balkan
Investigative Reporting Network, did not corroborate the information on the prevalence of re-trafficking, only on the reasons for women to be re-trafficked.
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CPIN on the Background Information on Albania focused on information on protection andinternal relocation. It provided information on history, geography, as well as the economy, the political system, security apparatus and the judiciary. The CPIN stated corruption as a concern within the police and the judiciary but failed to connect the corruption problems to the issues raised in asylum claims. How does the corrupt judiciary impact the possibilities of redress for a victim of domestic violence? How does corrupt police affect protection in case of a blood feud between two influential families? The topical CPINs also only briefly touched upon the existence of a well-founded fear of persecution or a real risk at serious harm. The December 2017 CPIN on Domestic Violence concluded that domestic violence is widespread. However, the focus was on legal protection, such as protection orders, and various other initiatives to tackle domestic violence. Some of the information was based on limited sources, as was previously discussed in section 5.2.2. Given, for example, the prevalence of corruption and the widespread domestic violence, has the UK Home Office properly established that there is in general no serious risk of persecution of persons in Albania? If not, is it the level of protection that justifies the SCO designation and the level of safeguards in the asylum procedure that come with such designation? This does not sit well with the reasoning behind the concept of Safe Country of Origin which presumes the safety of a country of origin. How can a country be considered safe when domestic violence is widespread? An asylum application of a traumatised victim of domestic violence may not necessarily lead to a refugee status or subsidiary protection due to the existence of some form of state protection. However, her asylum application should at least be heard in a normal asylum procedure with all safeguards in place.
6.
The role of Country of Origin Information in the
Dutch policies on Safe Countries of Origin
The Netherlands has implemented article 37 (3) recast APD in their national legislation and have committed to basing SCO designations on a wide range of sources.119 This section discusses the current application of the SCO concept in the Dutch context. Furthermore, it analyses the Dutch decisions to designate Albania and Kosovo as safe. The decisions are based on extremely limited, mostly secondary, sources and out-of-date information. Moreover, they lack an analysis of properly weighed and balanced Country of Origin Information within the set SCO criteria.120
119 Article 3.105ba (2) Aliens Decree 2000
120 See also Hemme Battjes, ‘Veilige Landen van Herkomst: Verzwaring van de Bewijslast?’ (2016) Asiel &
6.1 The Dutch context
6.1.1 The legal framework
In the Netherlands the implementation of the recast APD121 led to a word for word inclusion of the SCO criteria laid down in Annex I of the recast APD.122 The Dutch Government (re-) created the possibility for a SCO list to be adopted through Ministerial Decree.123 This means that the government and Parliament are only informed on the composition of the list. Conform Annex 1 recast APD, the decision to designate a country safe should be based on the legal situation, the application of the law with the democratic system, and the general political circumstances.124
According to article 3.105ba Aliens Decree, ‘the assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations.’125 This list of sources is not considered to be exhaustive and/or obligatory: A country of origin can not only be considered safe when there is information available from EASO, UNHCR or the Council of Europe. A country can also be designated safe when there is relevant information available from other sources.126 The sources should be authoritative, independent, objective and reliable. In its decision, the State Secretary of Justice and Safety should clearly identify what sources were used in the designation of a country as safe, how these sources were selected and how they were weighed. This guarantees that an asylum applicant will be able to put up an effective defence and the administrative judge will be able to do a full examination of the designation decision which is subject to a full judicial review.127 The situation in third countries designated as safe should be re-assessed on a regular basis.128
The SCO concept serves a procedural purpose in the Netherlands.129 Therefore, the application from a SCO asylum applicant will be considered manifestly unfounded.130 The application will be accelerated, at first instance as well as on appeal.
The SCO list currently includes, apart from all EU and European Economic Area Member States, Albania, Algeria, Andorra, Australia, Bosnia-Herzegovina, Brazil, Canada, Georgia, Ghana, India, Jamaica, Japan, Kosovo, Macedonia, Morocco, Monaco, Mongolia, Montenegro, New-Zeeland, Ukraine, San Marino, Senegal, Serbia, Switzerland, Togo, Trinidad and Tobago,
121 Legislation of 8 Jul. 2015 to change the Aliens Act 2000 to implement the recast APD and Directive 2013/33/ EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L 180/96, 29 Jun. 2013.
122 Article 3.37f Aliens Regulation 2000 introduced by order of the State Secretary of Safety and Justice of 13 Jul. 2015, n 666060.
123 Article 3.105ba Aliens Decree 2000 introduced by decision of 10 Jul.2015.
124 Parliamentary documents (Netherlands), TK 2015 – 2016, 19367, No 2076 of 3 Nov. 2015, article 3.37 Aliens Regulation 2000
125 Article 37 (3) recast APD
126 Council of State (Netherlands), Decision No 201607902/1/V2 (1 Febuary 2017) paras 5.1, 5.3. 127 Ibid paras 5.3 - 5.4.
128 Article 3.105ba (3) Aliens Decree 2000; Article 37 (2) recast APD.
129 Council of State (Netherlands), Decision No 201603036/1/V2 (14 September 2016) ECLI:NL: RVS:2016:6:2040, para 3.4.2.
