Steve Peers, Professor of Law, Royal Holloway University
of London

Photo credit: Andre Engels, via Wikimedia Commons

The EU’s asylum pact was adopted less
a year ago, and mostly won’t apply for over another year – and yet the EU Commission
has already proposed
to amend it, in order to bring forward some of the rules in the procedural
part of the pact, and to adopt a common list of ‘safe countries of origin’ to
apply when the rest of the pact enters into force. The aim is to speed up consideration
of asylum claims, and in particular to help to ‘save’ the Italy/Albania deal on
asylum processing. The following blog post looks in turn at the background to
the new proposal, and then the different elements of it, followed by an
assessment.  

Background

Previous and current rules

Initially, the concept of ‘safe countries
of origin’ goes back, at EU-wide level, to ‘soft law’ adopted in the early
1990s (one of the ‘London
Resolutions’ of 1992). Subsequently, the principle took on binding legal
form at EU level in the first-phase 2005 asylum procedures Directive, which
provided for an option for Member States to accelerate
considering asylum applications (albeit in accordance with the usual
procedural rules), inter alia where the applicant is from a ‘safe country of
origin’, as further defined. (Note that these rules refer to non-EU
countries of origin; there is a separate, stricter set of rules setting out the
near-impossibility of EU citizens making asylum applications in other
Member States, because each EU Member State is considered to be a ‘safe country
of origin’ too, according to a protocol
attached to the EU Treaties).

Currently, a revised version of the
principle is set out in the second-phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’). Unlike the 2005 Directive, there is
no longer a reference to potentially treating only part of a country as ‘safe’,
and the previous option for Member States to retain pre-existing lower
standards on this issue (along with pre-existing rules on designating part of a
country as ‘safe’, or as ‘safe’ for groups of people) was dropped.

The CJEU has ruled on these provisions twice.
First, the Court confirmed that Member States had to provide for a ‘safe
countries of origin’ rule in national law if they wanted to use apply this principle. Secondly, in
October 2024 the Court interpreted the substance of the rule, in particular confirming
that it was no longer possible to designate part of country of origin as ‘safe’,
given that the EU legislator had dropped that possibility from the text of the 2013
Directive, as compared to the 2005 Directive (see further discussion of that
judgment here).

Given that the Italy/Albania treaty on
housing asylum applicants in Albania only applied (at least initially) to
asylum-seekers from supposed ‘safe countries of origin’, this created a number
of potential barriers to the application of that treaty, with multiple Italian
courts sending a questions to the CJEU about the rule. The CJEU has
fast-tracked two of these cases – Alace
and Canpelli – which raise questions in particular about whether Member
States can designate a country of origin as ‘safe’ with exceptions for certain
groups, and also whether they can designate such countries by means of
legislation and must publish the sources of their assessment when they do so.
(The case is pending: see earlier blog posts on the background,
the hearing,
and the Advocate-General’s
opinion)

Future rules

The 2024 asylum procedures Regulation (the ‘2024 Regulation’) has amended the ‘safe country of origin’
rules again, although as things stand the 2024 Regulation is only applicable to
applications made after June 2026. This upcoming version retains many of the
current features of the ‘safe country of origin’ concept (which are set out in
more detail below): the definition of human rights standards which must apply
before a country can be designated as ‘safe’; the procedure for designation
(laying out the sources of information which must be taken into account); and the
safeguards (the asylum-seeker must be a national of or a stateless person habitually
resident in the country concerned, and must have the possibility to rebut the presumption
of safety in their particular circumstances).

But there are several changes in the 2024 Regulation. In particular, it will
now again expressly be possible to create an exception to the designation of ‘safety’
for ‘specific parts’ of the non-EU country’s territory and (not only in the
context of pre-existing law) for ‘clearly identifiable categories of persons’.

More broadly, the ‘safe country of origin’ rule will remain on the list
of possible accelerated procedures, but there is more
harmonisation of the rules on time limits and appeals in these cases. There is
also a potentially overlapping new ground of accelerated procedures where the
country of origin has an international protection recognition rate below 20% at
first instance (based on the latest annual Eurostat data), although this is
subject to some safeguards, discussed further below.

Another important new development in the 2024
Regulation is the possibility to adopt a common EU list of ‘safe countries of
origin’ (there were two earlier failed attempts to do this; see my previous
blog post). According to Article 62(1) of the Regulation in its current
form, the EU common list must be subject to the same rules as the national list
(‘in accordance with the
conditions laid down in Article 61’). The Commission has to review the EU list with the assistance of the
EU Asylum Agency, on the basis of the sources of information applicable to
Member States drawing up their lists (Article 62(2)). Also, the EU Asylum
Agency must provide information to the Commission when it draws up proposals
for the common EU list (Article 62(3); the list must be adopted by the ordinary
legislative procedure, ie a qualified majority of Member States, in agreement
with the European Parliament). If there are ‘significant changes’ in a country
on the common EU list, the Commission must conduct a ‘substantiated assessment’
of the situation in light of the ‘safe country of origin’ criteria, and can
suspend a country from the list on a fast-track basis.

As for Member States, they can still designate additional countries as ‘safe
countries of origin’, even if those countries are not on the common EU list.
But if a country is suspended from the common EU list, Member States need the
Commission’s approval to put that country back on a national list for the
following two years.

The new proposal

The new proposal has two main elements, each of which can be broken down
into two sub-elements. First of all, it would bring forward some of the rules in
the 2024 Regulation. This would apply to aspects of the ‘safe country of origin’
and ‘safe third country’ rules on the one hand (which would apply when the newly
proposed Regulation, once adopted, enters into force), and to the ‘low recognition
rate’ ground of accelerated proceedings on the other (which Member States could
apply before the asylum pact otherwise applies).

Secondly, it would establish a common EU list of ‘safe countries of
origin’ that would apply as from the main 2026 date to apply the 2024 Regulation
as a whole. This would include both candidate countries for accession to the EU
(which would be subject to a new set of special rules) and a further list of
seven countries to be regarded as ‘safe countries of origin’.

The proposal would apply to all Member States except Denmark and possibly
Ireland, which could opt in or out (so far, Ireland has adopted into all of the
asylum pact measures that it could).  It
would not apply to non-EU countries associated with Schengen.

Earlier application of the asylum
pact

‘Safe country’ rules

The proposal would allow the earlier application of key changes to the ‘safe
country of origin’ rules set out in the 2024 Regulation, as regards creating
exceptions to that concept for part of a country, and for groups of people. As
noted above, the CJEU has ruled that the former exception cannot apply under
the 2013 Directive, while it will soon rule on whether the latter exception can
currently be invoked under that Directive. So if the proposal is adopted, the
change as regards exceptions for part of a country will definitely overturn the
existing case law, while the change as regards exceptions for a group of people
will possibly change the existing law, depending on what the Court rules (it’s
likely, but not certain, that the judgment will come before the proposal becomes
law).

Of course, these changes will apply anyway once the 2024 Regulation
applies in June 2026. But some Member States are anxious to be able to apply
these exceptions earlier than that, in particular Italy: both the exceptions are
very relevant in practice to whether the Italy/Albania asylum deal is workable
earlier than next June.

The proposal would also allow the earlier application of the same changes
to the ‘safe third country’ rules set out in the 2024 Regulation (ie the rules
on whether asylum seekers can be sent to another country, other than an EU
Member State or their country of origin, which should decide upon their asylum
application). Presumably the Commission assumes that the CJEU, if asked, would
also find that there is no exception for parts of a country or groups of people
as regards designation of ‘safe third countries’, by analogy with its existing
or possible future judgments on ‘safe countries of origin’ under the 2013 Directive.
 

Note that only some of the new ‘safe third country’ and ‘safe country of
origin’ rules in the 2024 Regulation (ie the possible exceptions for parts of
countries or groups of people) would apply early. For instance, the prospect of
common EU lists for either concept would not apply early; the proposed common ‘safe
country of origin’ list, discussed below, would only apply from June 2026, when
the 2024 Regulation generally starts to apply. Furthermore, the Commission will
likely soon propose further changes to the ‘safe third country’ rules, in a
separate proposal: the 2024 Regulation requires a review of those rules by this
June.

Low recognition rate rules

In addition to early application of revised versions of current rules,
the proposal would also bring forward the application of a brand new rule set
out in the 2024 Regulation: the ‘low recognition rate’ rule, on accelerated
procedures where the recognition rate (ie the success rate of asylum applications)
of a country’s citizens is below 20% at first instance, ie before appeals (even
though a proportion of appeals is successful). This also includes most of the safeguards
attached to this new rule: it cannot apply if the Member States’ administration
‘assesses that a significant
change has occurred in the third country concerned since the publication of the
relevant Eurostat data or that the applicant belongs to a category of
persons for whom the proportion of 20 % or lower cannot be considered to
be representative for their protection needs, taking into account, inter alia,
the significant differences between first instance and final decisions’.

The proposal also provides for early application of
the same rule (subject to the same safeguards) as regards unaccompanied minors,
although the Commission makes no mention of this point, and so provides no
justification for it, in its explanatory memorandum.

However, arguably the proposal does not bring forward
the rule (as regards both asylum seekers generally and unaccompanied minors in
particular) that the assessment of significant changes must take account of any
guidance note on the point issued by the EU Asylum Agency.

Also, the proposal does not bring forward other aspects of the 2024
Regulation related to the ‘low recognition rate’ rule. The Commission expressly
points out that the rule will remain optional for Member States, until the 2024
Regulation makes it mandatory from June 2026. Furthermore, while the proposal states
that the ‘low recognition rate’ rule can be used in special border procedures
(in the 2013 Directive version of border procedures, not the 2024 Regulation
version of them, until June 2026), it does not include the important exceptions
from border procedures set out in the 2024 Regulation.

In particular, that Regulation excludes the border procedure from applying
to unaccompanied minors on ‘low recognition rate’ grounds, and also excludes
the border procedure from applying to asylum seekers generally where: the rules
on accelerated or inadmissible cases do not apply; support cannot be provided
to asylum seekers with ‘special reception needs’ or ‘in need of special procedural
guarantees’; there are medical grounds; or detention guarantees cannot be
complied with. But none of these exceptions are made applicable (prior to June
2026) by the new proposal. This point is particularly relevant to detaining
asylum seekers – which is easier to justify legally when the border procedure
applies. So the attempt to widen the use of the borders procedure could widen
the use of detention.

Common EU list of ‘safe countries of
origin’

EU accession candidates

The proposed Regulation would delete the current Article 62(1) of the
2024 Regulation (which requires any common EU list of ‘safe countries of origin’
to comply with the ‘conditions’ relating to that concept set out in Article 61),
replacing it with a statement that candidate countries to join the EU (the
Commission does not name them, but they are Serbia, Montenegro, Ukraine,
Moldova, North Macedonia, Albania, Bosnia, Georgia and Turkey) are ‘designated
as safe countries of origin’ at EU level, save in ‘one or more’ of three circumstances: