Pyrrhic victory for the Greek government: the CJEU rules on Turkey as a “safe third country”

Professor Steve Peers, Royal Holloway University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

Hamster idiom credit: Adam Sharp

(Thanks to Zoe Gardner for discussion of the case; the following analysis is my own)

 

Introduction

Remember the ‘refugee crisis’ of 2015-16? One part of the EU’s response to it was to negotiate a ‘joint statement’ with Turkey (see comments and criticism here, here and here) that, among other things, led to Turkey agreeing to take back asylum-seekers from the Greek islands. Greece facilitated the application of this process by determining that Turkey was a ‘safe third country’ (ie that asylum-seekers could and should have applied there instead, given that this other country is ‘safe’) under EU asylum law, initially for Syrian asylum-seekers in the eastern Greek islands. Faced with a legal challenge to this determination, the Greek Council of State ruled in 2017 that the determination was legal, deciding by a 13-12 vote not to ask the CJEU to interpret the issue of EU law at stake. For its part the EU General Court (upheld on appeal by the CJEU) rejected legal challenges to the joint statement, on the frankly bizarre ground that the European Council had nothing to do with the EU/Turkey joint statement (which referred to EU law issues such as visa waivers).

Subsequently in 2020, Turkey decided to refuse all readmission of asylum-seekers from Greece, stating that (as quoted in note 10 of the Advocate-General’s opinion):

 Responding to repeated requests from the Greek authorities and the European Commission regarding the resumption of return operations, [the Republic of Türkiye] has stated that no return operation would take place unless the alleged pushbacks along the Turkish-Greek border stop and [the Hellenic Republic] revokes its decision to consider [the Republic of Türkiye] a Safe Third Country.

Greece nevertheless decided to list Turkey as a ‘safe third country’ more broadly in 2021, for asylum-seekers from Syria, Afghanistan, Pakistan, Bangladesh or Somalia; it added Albania and North Macedonia to its ‘safe third country’ list soon afterwards. In light of the EU law rules on ‘safe third country’ (discussed further below), two NGOs (the Greek Council for Refugees and Refugee Support in the Aegean) decided to challenge the Greek government decision to list Turkey, resulting this time in the view of the Council of State in February 2023 (by an 18-4 vote) that the listing of Turkey was invalid, on the grounds that EU law precluded designating a country which refused to readmit asylum-seekers as a ‘safe third country’. (Other EU law arguments against the designation of Turkey were rejected by the national court and not referred to the CJEU: see the analysis by Minos Mouzourakis).  But unlike in 2017, there was great deference to the view of the (much smaller) minority (two judges apiece argued that the issue of readmission was relevant instead when ruling applications inadmissible, or when enforcing that decision). So the national court decided to ask the CJEU questions about the interpretation of EU law on the readmission point before giving its final ruling. The CJEU delivered its judgment last Friday.

This is not only the first time that the CJEU has been asked about an aspect of the EU/Turkey asylum relationship. Remarkably, despite the huge number of asylum seekers that have come to Greece over the last decade and more, this is also the first time that the CJEU has been asked any questions about EU asylum law by any Greek court.

 

EU legal framework

Legislation

The definition of ‘safe third country’ for the EU is currently set out in Article 38 of the EU’s asylum procedures Directive. (This is about the ‘safety’ of non-EU countries, ie it is distinct from the EU Member States regarding each other as ‘safe’ countries, under the Dublin rules) First, Article 38(1) provides that the (optional) ‘safe third country’ concept can ‘only’ be applied if Member States are satisfied that certain ‘principles’ are ensured for asylum-seekers in that country: (a) ‘life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion’; (b) ‘there is no risk of serious harm as defined in’ the EU qualification Directive; (c) ‘the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected’; (d)  ‘prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected’; and (e) ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

Secondly, Article 38(2) requires Member States to subject the application of the ‘safe third country’ rule to national law rules, including: (a) ‘requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country’; (b) ‘rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’; and (c) ‘rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances’. Also, an asylum-seeker must ‘be allowed to challenge the existence of a connection between him or her and the third country’, as referred to in point (a).

Next, Article 38(3) requires Member States to inform the applicant that the principle is being applied to them, and also to give the asylum-seeker a document informing the supposedly ‘safe’ third country that the merits of their asylum claim have not been examined.

Crucially for this case, Article 38(4) then provides that:

Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. [ie an ‘ordinary’ examination of the merits of an asylum claim]

Finally, Article 38(5) obliges Member States to inform the Commission of their use of the concept.

The practical relevance of applying the ‘safe third country’ notion is (among other things) that it is a ground of (optional) inadmissibility under Article 33 of the Directive. And if the case is inadmissible, the asylum application is not further considered on the merits and has failed in that Member State (subject to an appeal of the inadmissibility decision, or the limited prospect of a ‘repeat application’, discussed further below). The failed asylum-seeker can then deprived of support as an asylum seeker under the reception conditions Directive and detained and removed under the Returns Directive. Of course, the impact of this is in theory ameliorated in ‘safe third country’ cases because the supposedly ‘safe’ country will readmit the person concerned and consider their asylum application properly. In practice, as we have seen, Turkey was explicitly and unambiguously refusing to readmit asylum-seekers from Greece in the context of the ‘safe third country’ concept.

Case law

The CJEU had interpreted the ‘safe third country’ rule in some prior case law, all concerning Hungary. First of all, in Case C‑564/18 (paras 29-51 of the judgment), the CJEU confirmed that the grounds of inadmissibility listed in the Directive were exhaustive (‘only’), and ruled that a national law applying a ‘safe third country’ principle to non-EU States where the asylum-seeker ‘as not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed’ was not consistent with the requirements of Article 38(1) of the Directive, in particular because it omitted the ‘non-refoulement’ requirement. Moreover, mere transit through the non-EU country was not enough for there to be a ‘connection’ with that country as required by Article 38(2).

Next, the Court reiterated these points in its judgment in Joined Cases C-924/19 and C-925/19 PPU (paras 148-165); but questions about what happens when the non-EU State refuses to readmit the asylum-seekers – the issue since addressed in last week’s judgment – were ruled inadmissible (paras 166-174). However, the Advocate-General’s opinion in that case discusses the issue (paras 107-127), taking the view that the refusal of readmission is only relevant at the point of enforcement of a decision based on the principle.  

Finally, in Commission v Hungary (Case C‑821/19), along with ruling on the criminalisation of assistance to asylum seekers, the Court again reiterated that the Hungarian law breached Article 38(1) and (2) of the Directive. The existence of a (then) pending proposal to amend the Directive on this point (since adopted as part of the 2024 asylum pact – but without some of the changes originally proposed) was irrelevant in determining whether a Member State was in breach of EU law at the time of the alleged breach.

 

Greek practice

As noted above, Greece had listed Turkey as a ‘safe third country’ despite Turkey’s refusal to readmit anyone in that context. While the CJEU judgment says nothing about the practice of the authorities, and the Advocate-General’s opinion says little (paras 65-68 of the opinion), one can find rather more information at the bottom of the ivory tower, in the recent Pro-Asyl report on the ‘safe third country’ principle in Greece, and in the annual AIDA report on Greece (‘safe third country’ section).

The reports state that over 10,000 asylum claims have been found inadmissible on the basis of the Greek listing of Turkey as a ‘safe third country’, although around 12,000 asylum claims have been found admissible (in some cases because the asylum-seekers argued that Turkey had not allowed them to make an asylum claim, or due to past exposure to refoulement, ie return to an unsafe country, or because they lacked a sufficient ‘connection’ with Turkey, on the basis of the national law implementing Article 38(2) of the Directive). Also, the reports are highly critical of the conclusion that Turkey is ‘safe’ – although the recent CJEU judgment does not address this issue, because the national court did not ask the CJEU about it.

Like the Advocate-General’s opinion, the Pro-Asyl study reports that Greek authorities apply the readmission test at the point of enforcement of a ‘safe third country’ decision. When Turkey then refuses readmission, the Greek bodies refuse to withdraw their prior decisions, leaving asylum-seekers to make a ‘repeat application’. But there are delays in registering these applications, and the authorities often reject them because they do not believe that the refusal of readmission is a ‘new element or finding’ (as required for a repeat application to be admissible under the EU Directive). But at least some courts rule against detention in such cases, given that there is no reasonable prospect of return (as required by the Returns Directive).

 

The judgment

The CJEU’s judgment began by answering the first question referred by the national court, rephrasing it as asking ‘in essence, whether’ the ‘safe third country’ rule in the Directive, ‘read in the light of Article 18 of the Charter’ on the right to asylum, ‘must be interpreted as precluding legislation of a Member State classifying a third country as generally safe for certain categories of applicants for international protection where, despite the legal obligation to which it is subject, that third country has generally suspended the admission or readmission of those applicants to its territory and there is no foreseeable prospect of a change in that position’.

First, the Court reiterated its case law that the grounds for inadmissibility of asylum applications in the procedures Directive (including ‘safe third country’ as defined in the Directive) are ‘exhaustive’, ie the Member States cannot add more grounds of their own (such as a divergent national definition of ‘safe third country’). It pointed out that the EU law definition ‘is subject to compliance with the cumulative conditions laid down’ in Article 38 of the Directive, as summarised above. But as the national court had already ruled that Greek law complied with the basic principles in Article 38(1), the CJEU did not examine that point. But it summarised the requirements for national law set out in Article 38(2) and the information obligations in Article 38(3), then recalled the Article 38(4) rule that ‘where the third country concerned does not permit the applicant for international protection to enter its territory, the Member States are to ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II of that directive’.

In the CJEU’s view, it followed from this first from the wording of the Directive that a Member State can designate a country as ‘generally safe’ by ‘an act of general application’. The references to national law in Article 38(2) referred to such a designation, as did the preamble to the Directive. Also, the Directive did not make the validity of such a general act ‘subject to the condition that it be proved that the applicants for international protection concerned will actually be admitted or readmitted to the territory of that third country’. This was not among the national law rules in Article 38(2); and the wording of Article 38(4) implied that the designation of the third country as ‘safe’ preceded the consideration of the issue of whether that country actually readmitted asylum seekers.

The CJEU also believed that this followed from the context of the Directive, in particular by comparison with the wording of the rules on ‘first country of asylum’ (ie where the asylum seeker already had protection, as distinct from where they could have sought it) on the readmission issue.

Finally, in the CJEU’s view, this interpretation also did not conflict with the objective of the Directive, as set out in the preamble, that in the interests of asylum-seekers in particular, asylum applications ‘should be made as soon as possible, without prejudice to an adequate and complete examination being carried out’. This objective was addressed by Article 38(4), requiring that a Member State ‘ensure’ access to an asylum decision on the merits, in accordance with the usual rules, if the ‘safe third country’ refused readmission. And then a key point:

54      It follows that, where it is established that the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of Directive 2013/32. Furthermore, that Member State may not unjustifiably postpone the examination of those applications and must, inter alia, ensure that that examination is conducted on an individual basis, in accordance with Article 10(3)(a) of that directive and in compliance with the time limits set out in Article 31 thereof.

This interpretation, in the Court’s view, ‘is likewise not such as to deprive of any practical effect the right of an applicant for international protection, as enshrined in Article 18 of the Charter and given specific expression by that directive, to obtain the status of beneficiary of international protection, provided that the conditions required by EU law are met.

Having ruled, in effect, that the designation of Turkey was valid, the CJEU felt it was unnecessary to answer the second and third questions referred by the national court, on whether the refusal of readmission was a factor to be considered at the admissibility or the enforcement stage. But as we have seen, the Court had already de facto answered the second question: if it is ‘established’ that the ‘safe’ third country ‘does not in fact’ readmit the asylum seekers concerned, a Member State ‘cannot’ find their applications admissible, and must consider those applications on the merits (moreover, without ‘unjustifiable’ postponement, and subject to the deadlines in the Directive). And that renders the third question moot.

 

Comments

Greece can have a dog; but it will be wagged by its Turkish tail. That is the effect of the Court’s judgment: in more technical legal language, Turkey can remain on Greece’s ‘safe third country’ list, but the practical impact of this is zero as long as Turkey refuses to readmit asylum-seekers from Greece, because asylum applications cannot be found inadmissible on this ground. The wheel of designation of Turkey as a ‘safe third country’ keeps spinning, but the hamster of inadmissibility of asylum applications is dead. Let’s unpack this further, examining first the reasoning of the judgment and then its potential consequences.  

Judicial reasoning

The CJEU begins by, with respect, answering a ‘straw man’ question that it had not been asked.  The national court did not ask the CJEU if it was possible to designate ‘safe third countries’ at all; rather it asked if those countries could be designated if they failed to readmit asylum-seekers. The references to common principles on ‘safe third countries’ in the preamble to the Directive do not answer the question as to what those common principles are; a rule that failure to readmit precludes listing a country would be a ‘common principle’ too. However, the Court’s points that Article 38(2) on national law and (especially) Article 38(4) on readmission presume that the country concerned is already on a list are more convincing.

Most importantly, the Court’s finding that applications cannot be inadmissible on ‘safe third country’ grounds where the country concerned refuses to readmit, requiring a Member State to consider the merits of such applications, is particularly convincing.  Given that between Greece and Turkey the readmission will not take place, and in light of the evidence that repeat applications are difficult to make and are often rejected, this is the best way to ensure that the obligations set out in Article 38(4), coupled with the principle of considering applications as soon as possible, are met.

Unlike some judgments, this is not so much a ‘liberal’ or ‘activist’ interpretation of EU asylum law by the CJEU, but rather the overdue termination of conservative activism by the Greek authorities and lower courts. In light of the clear obligation in Article 38(4) to consider the merits of an asylum application if the asylum seeker is not readmitted to a ‘safe third country’, in the context of the absolute refusal of Turkey to readmit, the failure of the authorities to consider the merits of many of those applications, and of the courts to require them to do so, is unjustifiable and frankly shocking.

Consequences in practice

First and foremost, what happens to the 10,000 plus asylum seekers whose applications were already rejected as inadmissible? As noted above, some had previously tried to make repeat applications, but faced the difficulty that they had to invoke ‘new elements or findings’ in order to do so, which was often difficult to do. But their ability to invoke the ‘repeat applications’ clause in the Directive has now, as a consequence purely of the Court of Justice’s recent judgment, undergone a Copernican revolution. This is because the CJEU has previously ruled (see Joined Cases C-924/19 and C-925/19 PPU, paras 175-203, confirmed in Case C-216/22) that its own judgments on EU asylum law are a new element or finding in filing a repeat application, where those judgments are relevant and add significantly to the likelihood of an asylum application being successful. For those asylum-seekers whose application was found inadmissible on ‘safe third country’ grounds despite Turkey’s refusal to readmit them, last week’s judgment is obviously highly relevant; and overturning the finding that their applications were inadmissible equally obviously significantly increases the odds that their application will be successful. (Moreover, the judgment in Joined Cases C-924/19 and C-925/19 PPU is especially relevant by analogy here, since the prior national judgments which conflicted with a later CJEU judgment in that case also concerned an unlawful application of the ‘safe third country’ rules).

Therefore, if the rejected asylum-seekers apply again, the Greek asylum system will now have to decide on the merits of thousands of asylum applications that it wrongly ruled were inadmissible in the first place. A pending CJEU case referred from Ireland may be relevant by analogy in establishing whether Greece has to pay damages too. Finally, if any Afghan women asylum-seekers were among those whose applications were considered inadmissible, they can also rely on another CJEU judgment from the same day (discussed here) as a ‘new element or finding’, supporting the merits and fast-tracking of their gender-based persecution claims.

As for current or future applicants, their applications cannot be rejected as inadmissible on the grounds that Turkey is a 'safe third country' at all. Nor can they be rejected on the grounds that Turkey is a ‘first country of asylum’ for them: without even looking at the substance of that concept, the CJEU judgment explicitly stated that this principle cannot even get off the ground if the country concerned will not readmit the asylum seeker.

What about applicants after the asylum pact takes effect? The Court of Justice judgment from last week only mentions the new asylum procedures Regulation (discussed here) in passing, but as the Advocate-General’s opinion pointed out (in para 64), the interpretation of the Directive ultimately followed by the Court is explicitly set out in the Regulation, now being built into the definition of inadmissibility – also as regards the ‘first country of asylum’ principle (these grounds of inadmissibility can be invoked for either principle ‘unless it is clear that the applicant will not be admitted or readmitted to that country’). (See also recital 53 in the preamble to the Regulation). Whether the planned review of the ‘safe third country’ rules in the Regulation in 2025 affects these issues remains to be seen.

Finally, the Court’s judgment understandably only dealt with situations where the refusal of readmission is certain at the time of considering the possible application of the ‘safe third country’ rule. It did not deal with the scenario where refusal was merely a possibility – as that was hypothetical on the facts. How should such cases be dealt with?

The starting point is that the current Directive (recital 44 in the preamble) implies the possibility of an inadmissibility decision in that scenario: Member States do not have to examine the merits of an application where ‘there are grounds for considering that the applicant will be admitted or readmitted to that [‘safe’ third] country’. The inadmissibility rule in the new Regulation points in the same direction: it can’t be applied if ‘it is clear that’ readmission is not going to happen (see also recital 43 in the preamble to the Regulation). But this implies that the inadmissibility rule can be applied if it is not clear that readmission is ruled out. On the other hand, the recent judgment points to the importance of deciding on applications as soon as possible, without unjustifiable postponements, while ensuring the application of the Charter right to asylum. How best to reconcile the possibility of the adoption of inadmissibility decisions with the need to take decisions speedily and afford an effective prospect of having an asylum application decided on the merits, if there is uncertainty about whether readmission will actually take place?

The 2024 procedures Regulation already expressly provides (in recital 53 in the preamble) that access to the Member State’s asylum system must be offered again if readmission does not take place:

…if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation

How should that principle apply in concrete terms? The best approach is to infer an obligation upon the Member State to act with due diligence to attempt to secure the readmission, starting as soon as it takes the inadmissibility decision (after any appeals, or the prospect of appeals, against that decision are spent). From that point, the Member State should have a reasonable time frame to request readmission from the non-EU country concerned. By analogy with the procedures Regulation time limit for deciding on inadmissibility, two months should be sufficient. If the non-EU country refuses readmission, or does not reply within the time limit set out in the readmission arrangements in force, or accepts readmission in principle but does not carry it out in practice within the relevant time limit, then the Member State’s obligation to consider the application on the merits where readmission does not take place must be triggered. Procedurally either the inadmissibility decision must be considered as withdrawn from that point (it makes sense to consider it as only provisional until readmission is actually carried out), or a repeat application must be considered – the requirement of new developments being satisfied by the inability, subsequent to the inadmissibility decision, to ensure readmission in practice within a reasonable time frame. The inadmissibility decision was based on the presumption that readmission would be secured within a reasonable period; that presumption has since been rebutted.

The final word on the impact of last week’s judgment should go to the asylum NGOs who brought the case:

…the CJEU’s judgment is of major importance because it overturns an arbitrary and abusive practice of the Greek authorities which has been in force for many years, of wholesale rejecting asylum applications as inadmissible under the safe third country principle, and puts an end to the denial of the rights of thousands of applicants, by prohibiting their rejection when there is no possibility of their readmission to Türkiye and dictating their individual examination in accordance with the Directive.

The new EU asylum laws, part 7: the new Regulation on asylum procedures

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

(last updated 18 June 2024: changed text marked by asterisks)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws, which was formally adopted on May 14 2024, and published in the EU Official Journal on 22 May 2024.*

I have looked at all the new legislation on this blog in a series of blog posts, which are a preview of a forthcoming article.* This is the seventh post in the series, on the asylum procedures Regulation, along with the parallel Regulation on a borders return procedure. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the revised Dublin Regulation/AMMR (part 6), and the crisis Regulation plus general comments (part 8).*

The new package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The asylum procedures Regulation

The EU’s development of a Common European Asylum System in multiple phases has included a first phase asylum procedures Directive, adopted in 2005, and a second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’). The case law on the 2013 Directive is presumably still relevant to the 2024 Regulation, except where the latter has changed the text of the rules.

The UK and Ireland both opted into the first phase Directive, but not the second, although the UK is no longer bound by EU law due to Brexit. Ireland has also opted out of the 2024 Regulation (update, April 29 2024: Ireland has announced an intention to opt in to the Regulation).* Denmark has opted out of all the procedures laws.

The legislative process leading to the 2024 Regulation began with a proposal in 2016, which was supplemented by a revised proposal tabled in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact. The parallel Regulation on a border return procedure was carved out of the proposal; the reason for a separate law on this is that unlike the main procedures Regulation, the border return procedure Regulation will also apply to Denmark and Schengen associated countries. 

Substance of the Regulation

Like most of the new asylum laws (except the resettlement Regulation, which will apply almost immediately), the new procedures and border returns procedure Regulations will apply in about two years’ time - namely applications made after 12 June 2026.* But certain provisions (on the revised borders procedure) will have some effect earlier than that, as discussed below. Furthermore, the Commission must produce a ‘common implementation plan’ to the Council within three months of the entry into force of the procedures and border return procedure Regulations (it is planning to issue this early, in June); Member States must produce national implementation plans by December 12 2024.*

The objective of the procedures Regulation, according to the preamble, is ‘to streamline, simplify and harmonise the procedural arrangements of the Member States by establishing a common procedure for international protection in the Union’. Instead of the ‘current disparate procedures’, applications ‘should be examined in a procedure, which is governed by the same rules, regardless of the Member State where the application is lodged to ensure equity in the treatment of applications for international protection, clarity and legal certainty for the individual applicant’; this ‘should limit the secondary movements’ of asylum seekers.

To examine what the Regulation does to achieve these goals, this blog post will examine in turn: the general provisions of the Regulation; the basic guarantees for applicants; the start of the administrative procedure; the examination of applications; the border procedure (including the separate Regulation on a border returns procedure); other special procedures (accelerated applications and repeat applications); ‘safe country’ concepts (first country of asylum, ‘safe third country’, and ‘safe country of origin’); withdrawal procedures; appeals; and an overall assessment. It will focus in particular on the various ‘fast-track’ rules (borders, inadmissibility, repeat applications, accelerated cases, ‘safe’ countries) – many of which have been significantly amended – as well as the key rules on time limits and appeals.

General Provisions

As before, the Regulation applies to applications made on the territory or at the external border, including the territorial sea and transit zones, and to withdrawal of international protection, but not to applications made in consulates – although Member States can choose to apply it to applications for national forms of protection if they wish to. Conversely, one fundamental change is that unlike the 2013 Directive, the Regulation is no longer a minimum standards measure: it fully harmonises the law except where it leaves specific flexibility to Member States. This parallels the changes made to EU law on qualification for asylum (see part 1).

Guarantees for Applicants

Crucially, there is still a right for asylum-seekers to remain on the territory until the first instance decision on their application, subject to limited exceptions: the previous exceptions for repeat applications, European Arrest Warrants, or (subject to non-refoulement, ie no removal to an unsafe country) extradition to a non-EU country, plus a new exception for public security. The previous rules on personal interviews, legal assistance, special guarantees, and medical examinations are also retained with amendments (for instance, it is now mandatory to record interviews); and there is a new provision on age assessment.

Start of the Procedure

The Regulation elaborates upon the process of starting the asylum process, retaining also the key rule that asylum seekers should have an ‘effective opportunity’ to lodge an application for asylum (on the equivalent provision in the 2013 Directive, see, for example, Cases C-808/18, C-823/21, C-72/22 PPU, and C-392/22: ruling out various national measures restricting access to the asylum process, such as limitations on the numbers allowed to cross the border to apply, obligations to apply abroad in advance, pushbacks, and a refusal to consider applications in ‘instrumentalisation’ cases, ie where Belarus shoved people across the border).

Examination of Applications

The Regulation’s rules on examination of asylum applications include more harmonisation of deadlines to make decisions on asylum applications. The general deadline to decide on applications remains six months, with a further six months (rather than nine months, as previously) in three scenarios (somewhat revised: ‘complex issues of fact or law’, ‘disproportionate’ numbers of applications at around the same time, and the applicant’s non-compliance), and (as before) a possible extension to a total of 21 months after lodging the application where there is an ‘uncertain’ situation which is ‘expected to be temporary’. A previous possible general extension for three months has been dropped.

There are also deadlines in other cases now too: two months for admissibility decisions (and only ten working days for one ground of inadmissibility, relating to returns procedures); three months for accelerated proceedings; and an unspecified time limit (which must be shorter than the normal deadlines) where a court has referred a case back to the administration for a new decision.

Another big change is an important new obligation to issue return decisions pursuant to the Returns Directive alongside (or as part of) rejections of asylum applications. If a return decision has previously been issued, there is no need to issue a new one. If the return decision is separate from the asylum refusal, it must either be issued simultaneously or ‘without undue delay’ afterwards.  

Changes have also been made to the rules on inadmissibility of asylum applications – which are primarily applications which the EU believes have been, or should have been, dealt with already. As before, applications must be found inadmissible if they are repeat applications, with a slightly reworded exception: if there are ‘no new relevant elements’ (replacing ‘no new elements or findings’). Applications may be ruled inadmissible (also as before) in the event of the ‘first country of asylum’ or ‘safe third country’ principles applying, or another Member State granting international protection. However, unlike the Dublin rules as regards asylum seekers (see Part 5), there is no recognition of the CJEU case law providing that in exceptional cases a beneficiary of international protection in one Member State may request it from another Member State, if there are systematic deficiencies or an individual risk in the other Member State (see, for instance, Ibrahim).

There are also new possibilities for optional inadmissibility: an ‘international criminal court has provided relocation’, under certain conditions; or the application was filed more than a week after a return decision was issued to the person concerned, if the applicant was aware of the consequences of missing that deadline, and there are ‘no new relevant developments’ since that date. Furthermore, an application which another Member State is responsible for under the Dublin rules is still not examined on the merits (other than by the Member State responsible). Withdrawn applications are still not examined on the merits either.

Finally, the rules on withdrawal of applications now require Member States to provide for both explicit and implicit withdrawal, along with many more procedural rules than before – although the safeguard of having another opportunity to apply in cases of implied withdrawal has been dropped. Also, as noted in part 6, parallel changes to the Dublin rules mean that in some cases asylum seekers who move to another Member State will in some cases no longer have the right to have their applications considered after being transferred back to the responsible Member State.

Border Procedure

A key feature of the Regulation compared to the 2013 Directive is its approach to border procedures – which were previously an option for Member States to decide on cases subject to inadmissibility or accelerated procedures at the border or transit zones. Where there was no decision within four weeks, the applicant had to be released from detention and allowed entry into the territory of the Member State to continue with the application (see Cases C-808/18 and C-924/19 and C-925/19 PPU); and there were special rules for a large number of applicants at the border.

Under the 2024 Regulation, the scope of the border procedure is defined first, as an option – consisting of people who are not yet authorised to enter the territory. But the border procedure cannot be applied if neither inadmissibility or accelerated procedures apply, or if there is insufficient support for people with special reception or procedural needs at the border locations, or for medical reasons, or if detention standards in accordance with the reception conditions directive cannot be applied at the border. In that case the asylum-seekers must be allowed to enter the territory, and a regular procedure must apply. Also, the border procedure can only be applied to unaccompanied minors in cases of national security or public order. The purpose of the border procedure is to decide on inadmissible cases or some accelerated cases.

What is the impact of the border procedure in practice? First of all, Member States must not allow those subject to the border procedure to enter their territory, ‘without prejudice’ to the exceptions from the border procedure or to the time limits on application of the border procedure; but in the latter case, there are several exceptions where the asylum-seeker still cannot be allowed to enter the territory and the border returns Regulation must apply instead. Moreover, Member States must ensure human rights monitoring of the border procedure equivalent to that in the Screening Regulation (see part 5).

But as with that Regulation, the ban on entering the territory is a legal fiction, as the locations of the border procedure could be either at or near the borders or transit zones or on the territory; yet this still does not count as authorisation to enter the territory. Even travel for health care or legal proceedings does not count; the Regulation maintains its legal fiction even inside courtrooms. However, as with the screening process, this legal fiction does not mean that the borders procedure is a law-free zone. Far from it: the Regulation itself applies a corpus of law to the procedure, and makes other law applicable too, referring to the detention conditions standards under the reception conditions Directive (see Part 2) and the basic procedural guarantees in the procedures Regulation itself – which include the right to remain until the first instance decision. The absence of a right to enter may, however, make it easier to justify detention from an ECHR perspective, given the ground to detain to prevent unauthorised entry in Article 5(1)(f) ECHR; and in any event, the revised reception conditions Directive provides that being subject to the borders procedure is a ground for detention as such.

Secondly, there is a 5-day deadline to lodge applications, and a 12-week deadline to decide on them. Member States must derogate from the usual administrative and judicial deadlines in the Regulation to ensure that the 12 week deadline is met – although this can be extended to 16 weeks in relocation cases. If the deadline is not complied with, then the asylum seeker can enter the territory, unless the border return procedure applies. Note that the 12 week deadline covers both administrative and judicial procedures – whereas the usual three months for accelerated cases and two months for inadmissibility cases only cover the administrative phase. Presumably, in line with the prior case law, detention (at least, detention solely on border procedure grounds) must still end when the time limit for the border procedure expires (again, see Cases C-808/18 and C-924/19 and C-925/19 PPU); but that procedure (and therefore detention) can apply for much longer than the 4 weeks under the previous Directive.

The most fundamental change from the previous Directive is that the border procedure is now mandatory, for three categories of accelerated cases: misleading statements or bad faith behaviour; national security or public order; and the new category of applicants from countries with low recognition rates (below 20%). However, this obligation applies to a limited number of asylum-seekers: the ‘adequate capacity’ for the mandatory border procedure is set at 30,000 people across the EU, and the Commission is to determine the allocation of that capacity for each Member State, with the numbers that each Member State is obliged to assess in a border procedure rising to a total of 120,000 annually by 2028. The Commission must adopt the first of these allocation decisions within two months of the Regulation’s entry into force, then will adopt further such measures on October 15 for subsequent three-year periods.

For those whose application is rejected while in the borders procedure, the parallel Regulation on a border return procedure applies. This Regulation provides that those rejected in the border procedure still do not have a right to enter the territory. Instead, Member States must require them to reside for up to 12 weeks ‘in locations at or in proximity to the external border or transit zones’; but if Member States cannot accommodate the refused asylum seekers there, they can resort to using other locations on their territory – exacerbating the legal fiction of non-entry. A swathe of provisions of the Returns Directive apply during this process. In fact, the Returns Directive fully applies if the rejected asylum seeker is not returned within the 12 week period. However, the rules on the prospect of voluntary departure are stricter than under that Directive.

The borders return procedure Regulation also includes rules on detention. There is a general provision that detention is a ‘last resort if it proves necessary on the basis of an individual assessment of each case and if other less coercive measures cannot be applied effectively’, but that is then undercut by more specific provisions. These provide for continued detention (post refusal of asylum) of those detained already, ‘for the purpose of preventing their entry into the territory of the Member State concerned, of preparing their return or of carrying out the removal process’. Rejected asylum seekers who were not detained before can be detained too, on partly different grounds: ‘risk of absconding’ as defined in the Returns Directive, or ‘if they avoid or hamper the preparation of return or the removal process or they pose a risk to public policy, public security or national security’. But there are time limits to detention under the border return procedure: either the 12-week maximum in this Regulation, or (if detention is ordered under the Returns Directive after that period expires) the detention under the Regulation counts towards the time limits on detention in that Directive. Logically, by analogy with the case law on the border procedure, detention under the border returns procedure must end when this time limit is up – unless there is another ground for detention.

Accelerated Procedures and Repeat Applications

Besides the radically overhauled rules on the border procedure, there are two other types of special procedures retained in the new Regulation: for accelerated applications and repeat applications. Both of these special procedures have also been amended.

First of all, the rules on accelerated procedures are now mandatory (‘shall’), rather than optional (‘may’). As before, there are ten grounds for accelerated procedures, although some of them have changed:

a) the claim is irrelevant to the grounds of international protection;

b) obviously false or contradictory claims;

c) the asylum seeker has been misleading or acted in bad faith destroying documents (now subject to a ‘good cause’ justification, and a requirement of intention);

d) the asylum seeker has brought the claim to frustrate an expulsion order;

e) the rules on ‘safe country of origin’ apply;

f) national security or public order;

g) the application is a repeat application that is not inadmissible (ie it has new elements);

h) the asylum-seeker entered or stayed ‘unlawfully’ and ‘without good reason’ did not present themselves to the authorities ‘as soon as possible, given the circumstances of’ their entry (similar to the provisions of Article 31 of the Refugee Convention, on the conditions for non-application of penalties to refugees who entered unlawfully);

i) (new) the applicant entered lawfully, but ‘without good reason’ did not apply ‘as soon as possible, given the grounds of his or her application’, although this is ‘without prejudice’ to applications sur place (ie applications for asylum due to new circumstances after entry on the territory; see part 1);

j) and finally (also new) the applicant is a national or a stateless habitual resident of a country with a recognition rate below 20% or below, according to annual Eurostat data – unless there has been a ‘significant change’ in that country, or the asylum seeker ‘belongs to a category of persons for whom the proportion of 20% or lower cannot be considered as representative for their protection needs, taking into account, among others, the significant differences between first instance and final decisions.’

This move to a mandatory accelerated procedure for a potentially large proportion of applications – with an apparently absolute obligation to decide cases within three months – is watered down by the new possibility that the determining authority may simply decide that the case is ‘too complex’, so the ordinary procedure must apply. Obviously the interpretation of the various grounds for applying accelerated procedures will be crucial. Furthermore, for unaccompanied minors, only five of the ten grounds can be applied; and the obligation to apply accelerated procedures is ‘without prejudice’ to the rules on vulnerable persons, which state that an authority must not apply (or cease applying) an accelerated procedure if it believes that ‘the necessary support cannot be provided within the framework’ of that procedure, ‘paying particular attention to victims of torture, rape or other serious forms of psychological, physical, sexual violence or gender-based violence’.

In contrast, fewer changes have been made to the rules on repeat applications. As before, an application made before the previous application has been decided does not count as a repeat application, and repeat applications made in any Member State after a final decision was taken must be considered by the Member State responsible under the Dublin rules. It remains to be seen whether an application in a second Member State counts as a repeat application under the 2013 Directive (see Khan Yunis, pending; an application following a decision in Norway (Case C-8/20) or Denmark (Case C-497/21) does not count as a repeat application, because those countries are not bound by EU asylum law other than Dublin); and the point might be relitigated under the Regulation.

In the event of a repeat application, there is still an initial examination, although it now looks solely at whether there are new elements (rather than new elements or findings) which ‘significantly increase the likelihood of the applicant to qualify’ for international protection (see interpretation of this rule in the 2013 Directive by the CJEU: it can apply to CJEU judgments (Cases C-924/19 and C-925/19 PPU and C-216/22), and to new documents (Case C-921/19)). If there are new elements as defined, then the repeat application has to be considered on the merits, unless another ground of inadmissibility applies. Otherwise, there is an obligation to consider the repeat application inadmissible. Finally, as before Member States have an option to remove the right to remain on the territory during repeat applications, or the suspensive effect of appeals, if there are no new elements and the asylum seeker has made a first repeat application ‘merely in order to delay or frustrate the enforcement of a decision which would result in the applicant's imminent removal from that Member State’, or if they have made multiple repeat applications. But this is still subject to the principle of non-refoulement, although it is no longer clear how that should be assessed. And as noted already, those repeat applications which are not inadmissible (because they do not raise new elements) are anyway (ie even if they do raise new elements) still subject to the rules on accelerated procedures – which are now also mandatory.

‘Safe’ Country Concepts

As before, there are three types of ‘safe country’ concepts (‘first country of asylum’, ‘safe third country’, and ‘safe country of origin’), but there are a number of changes to them.

First of all, there is a new overarching definition of ‘effective protection’, which is relevant to the first two of the three rules. If a non-EU country ‘has ratified and respects’ the Refugee Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’. But in other cases, and where a non-EU country has applied a geographical limit to the Convention, that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care, and education, and ‘effective protection remains available until a durable solution can be found’. In practice, the point is most obviously relevant to Turkey, where the invocation of the geographical limit in Article 1.B of the Convention means that only those fleeing Europe can claim refugee status – leaving African or Asian people unable to claim refugee status in Turkey, despite its position as a transit country. The new provision has presumably been inserted to confirm the practice of the EU institutions and Member States of assuming that Turkey meets the definition of ‘safe third country’ – a point not tested before the CJEU. But the new law means that even countries which have not ratified the Convention at all can be covered by the ‘effective protection’ concept.

This brings us to the ‘first country of asylum’ notion as such: the idea that the asylum seeker (supposedly) already had protection elsewhere. The concept is elaborated upon, compared to the previous Directive: it can ‘only’ apply if the person enjoyed refugee status or ‘effective protection’ as already defined, and is not threatened on Refugee Convention grounds, does not face a subsidiary protection risk as defined in the Qualification Regulation, and is protected against refoulement under the Convention and removal to face an Article 3 ECHR risk. The Regulation also includes specific protections for unaccompanied minors, and builds upon previous requirements that the asylum seeker must be readmitted to that country and can challenge the determination.

Secondly, the concept of ‘safe third country’ – the idea that the asylum seeker (supposedly) already could have sought protection elsewhere – is retained, with some amendments: not threatened on Refugee Convention grounds; not facing a subsidiary protection risk as defined in the Qualification Regulation; protected against refoulement under the Convention and removal to face an Article 3 ECHR risk (of torture or other inhuman or degrading treatment); and (as revised) able to enjoy ‘effective protection’ in the non-EU country (as defined by the Regulation), in place of (previously) being able to obtain refugee status under the Refugee Convention. Another change is that it is possible to exempt parts of a country or certain groups of people from that country from the designation, or even (bizarrely) to target it on individual applicants. The previous variation on this rule – sarcastically dubbed the ‘super-safe third countries’ rule – has been dropped.

Crucially, the Regulation retains key safeguards: asylum-seekers can still challenge the application of the concept in their individual circumstances, and it is still necessary to have a ‘connection between the applicant and the third country in question on the basis of which it would be reasonable for him or her to go to that country’. The preamble still suggests a high threshold to find a ‘connection’ with the non-EU country (‘[t]he connection between the applicant and the safe third country could be considered established in particular where members of the applicant’s family are present in that country or where the applicant has settled or stayed in that country’), consistently with the case law on the 2013 Directive (see Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries), apparently still ruling out a ‘Rwanda’ policy (like the UK’s) of expelling asylum-seekers to countries they have nothing to do with – although as the example of the Italy/Albania deal suggests, the EU institutions may take a different view (the CJEU has not been asked yet whether it agrees with that view, and the Italy/Albania deal has significant differences from the UK’s Rwanda policy).

There is also a new safeguard for unaccompanied minors, and retained safeguards as regards information for the asylum-seeker and the third country, and if the asylum-seeker is not readmitted (on how this safeguard – notably not applicable to the UK’s Rwanda policy – works, see pending Case C-134/23). Finally, a new provision provides that a presumption of safety ‘may be considered fulfilled’ if the EU and a non-EU country agree in a treaty that ‘migrants admitted under this agreement will be protected in accordance with the relevant international standards and in full respect of the principle of non-refoulement’. But this is ‘without prejudice’ to the safeguards on individual assessment, unaccompanied minors, and – crucially again, and unlike the UK/Rwanda treaty – a connection with the country concerned, thus ruling out a Rwanda scenario in this context too.

Thirdly, the concept of ‘safe country of origin’ – ie, the asylum seeker was (supposedly) obviously never in danger to begin with – is retained, based (as before) on whether there is no risk of persecution or serious harm in a country, based on the legal and political situation there, taking account of the law, human rights record, non-refoulement and availability of effective remedies in that country. As with ‘safe third country’, it is now possible to exempt parts of a country or certain groups of people from that country from the designation. But as before, the concept can only to apply to nationals, or formerly resident stateless persons, of the country in question; and the presumption can be rebutted in an individual assessment. Furthermore, the preamble states (applying also to ‘first country of asylum’ cases) that these concepts should not apply where the asylum-seeker is covered by the family reunion Directive, or is the family member of an EU citizen with free movement rights.

For both the ‘safe third country’ and ‘safe country of origin’ notions (but not the ‘first country of asylum’ notion), there is a more fundamental step towards harmonisation: the prospect of common EU lists. This is the latest attempt at providing for such lists, and it implicitly assumes that they will be adopted by the ordinary legislative procedure (ie a Commission proposal, qualified majority in the Council and negotiation with the European Parliament). Such lists must comply with the general criteria which apply to the designation of such ‘safe’ countries, although the Commission must review the designations regularly; a comparable safeguard was notably rejected as regards the recent UK legislation on the supposed safety of Rwanda. And unlike in the UK, if the CJEU ruled that a designation of a country as ‘safe’ was in breach of the Charter, it would not be possible for the EU’s political institutions to simply pass a law saying that they considered it safe regardless of that judgment – because as primary EU law, the Charter takes precedence over EU legislation.

However, due to the potential for sudden developments in those non-EU countries, there is a potential fast-track process to amend the lists. In the event of ‘significant’ changes in a country on the list, the Commission must ‘conduct a substantiated assessment of the fulfilment by that country of the conditions’ in the Regulation, and can adopt a delegated act suspending the ‘safe’ status of that country for a period of six months if it believes that the conditions are no longer met. Within three months of that delegated act being adopted, the Commission has to decide whether or not to propose legislation to the Council and Parliament to make that suspension permanent. If it does not make such a proposal within three months, the suspension lapses, and the country returns to the list; if it does make a proposal, it can extend the suspension of the country from the list for two further six-month periods. But if the proposed legislation on permanent suspension is not adopted within 15 months, the country returns to the list.  

As for national lists, Member States can in principle adopt their own lists supplementing any EU list. However, they cannot put a country on a national list while the delegated act suspending that country from an EU list is in force. After a country is removed from the list by EU legislation, a Member State can potentially add that country back to a national list; but for a two-year period after the removal from the list, the Commission can block a Member State from doing that.

While all three types of ‘safe’ country rules remain optional in principle (‘may’), it is not clear whether the adoption of EU lists, which appears to be mandatory (‘shall’) changes that. Arguably, the real issue is the link with other parts of the Regulation: the ‘first country of asylum’ and ‘safe third country’ rules link to the inadmissibility rules, which remain optional (except as regards repeat applications with no new elements), while the ‘safe country of origin’ rules link to accelerated procedures, which have become mandatory. And both those types of procedures link to the borders procedure, albeit not being grounds for the mandatory use of that procedure; some of the ‘safe country’ rules also entail no automatic suspensive effect of an appeal.

Withdrawal Procedure

There is still an obligation to start the process of withdrawing international protection if evidence emerges suggesting ‘reasons to reconsider’ that status. The rules on the procedure in such cases have been further developed, in particular providing for obligations upon the beneficiary of international protection to cooperate.

Appeals

As before, the right to an appeal has a broad scope, although it is redrafted in light of the revised terminology in the Regulation. In particular, while there is a right of appeal against the new prospect of a return decision issued in connection with a refusal of an asylum application, the return decision can be appealed separately if it was issued separately. Conversely, where a return decision is part of an asylum refusal, it must be appealed jointly (see the preamble). Subsidiary protection beneficiaries who were refused refugee status have a stronger right to appeal the refusal of refugee status. The right to a full ex nunc examination of facts and law, at least in the first instance of appeal, is retained (there is extensive case law on the equivalent provision of the 2013 Directive; see, for instance, Case C-406/18, trying to squelch the Hungarian government’s attempts at non-compliance with judgments). There are still provisions on interpretation and translation during appeals.

However, there is an important change as regards time limits: the Regulation now details deadlines for applicants to bring appeals, which must be between five and ten days as regards implicitly withdrawn, inadmissible, or accelerated cases, and between two weeks and a month in all other cases. There is also now an obligation for Member States to lay down deadlines on courts issuing judgments – although note that the CJEU case law on the 2013 Directive (where such deadlines were an option) said that the national courts should simply ignore those time limits if necessary to take enough time to consider the appeal sufficiently (Case C-406/18).

Finally, a crucial issue as regards appeals in asylum cases is their suspensive effect. As before, the Regulation grants the right to stay on the territory pending or during the exercise of the right to appeal (now extended to linked return decisions) – but subject to wide exceptions, ‘[w]ithout prejudice to the principle of non-refoulement’, which are now mandatory. The exceptions are: accelerated cases; border procedure cases (except for unaccompanied minors); most inadmissibility cases; implied withdrawals; repeat applications; and most withdrawals of status. Compared to the 2013 Directive, the lack of suspensive effect is broader for accelerated cases (the previous exception for unlawful entry cases was dropped, as were the additional safeguards in border procedure cases), different for inadmissible cases (automatic suspensive effect is still dropped for ‘first country of asylum’ and repeat applications; this now also applies to international court cases and last minute ‘frustration of return’ cases; it is no longer dropped for ‘other Member State’ cases), and new for implied withdrawals and withdrawals of status. Of course, many of these procedures are also now broader in scope, as discussed above.

However, there is still a safeguard applying to the exceptions: the national court hearing an appeal may decide to let the asylum-seeker stay anyway, in individual cases; and there are further safeguards pending that decision: as before, the right to stay as long as this interim decision could be or has been requested, plus new safeguards (a time limit of at least five days to request to remain during appeal; interpretation; legal aid; and being informed of the right). But there is now an option to drop the most important safeguard (the right to stay pending the decision on whether there is a longer right to stay) for repeat applications ‘if the appeal has been made merely in order to delay or frustrate the enforcement of a return decision which would result in the applicant’s imminent removal from the Member State’, although this is again ‘without prejudice to the respect of the principle of non-refoulement’, begging the question again of how that principle can be upheld if it is at risk in such cases. Integrating the prior case law, the Regulation provides that whether there is a further level of appeal, and whether the asylum-seeker gets to stay in that case, is up to Member States.

Assessment

The procedures Regulation does not simplify the rules, as claimed in the preamble: one special process is removed, but the remaining special procedures are made more complex, especially the borders procedure. If the EU really wanted to simplify asylum procedures, it could have cut the size of this Regulation by about two-thirds, by dropping all of the special procedures and simply setting out basic procedural guarantees and (uncomplicated) appeal rights. But obviously that is the last thing that Member States want to do.

Although the Regulation has not actually been simplified, it certainly entails significantly more harmonisation, not only by means of detailing the law further but also by means of making some provisions fully mandatory (accelerated procedures), or mandatory for a significant number of people (border procedures). And this move towards harmonisation does not only aim to deter secondary movements by the fact of harmonisation per se, but also (in conjunction with the Dublin rules) by providing that those who make an application then move between Member States will be regarded as having implicitly withdrawn their application. Furthermore, as with the revised Dublin Regulation and the amended reception conditions Directive, it prevents secondary movement by locking more people up – an implicit likely consequence of the greater use and longer duration of the borders procedure, which is a ground for detention per se.

To what extent does this threaten human rights protection? One issue here is the limited time periods to challenge a decision (which parallels the limited time periods to challenge a Dublin transfer decision). On this point, the CJEU case law on effective remedies in asylum cases is something of a dog’s dinner: a 15-day deadline in one context breached the principle of effectiveness of EU law (Danqua); a 15-day time limit in another context did not (Diouf); a 10-day deadline to challenge an inadmissibility decision was not a breach in one case (Case C-651/19), but a more general eight-day deadline in inadmissibility cases was (Case C-564/18); as was a three-day deadline in an accelerated procedure (Abboudnam). The most that can be gleaned from these cases is that if Member States choose the shortest possible deadlines available to bring challenges under the Procedures and Dublin Regulation, that short deadline may breach the Charter, depending on the details of the procedural circumstances.

As for (in effect) not allowing an asylum application at all because of secondary movements, this is fundamentally problematic, going beyond the logic of the Dublin system (applicants must have a chance to apply for asylum somewhere in the EU), or even the ‘safe third country’ principle (applicants should have applied for asylum somewhere else ‘safe’) – because it can apply regardless of whether someplace else is ‘safe’. It is submitted that this is a breach of the right to seek asylum in Article 18 of the Charter that cannot be justified on the basis of Article 52 of the Charter, because it breaches the essence of that right.

Finally, the new Regulation attempts to let itself ‘off the hook’ for low standards at several points, by saying that these low standards are without prejudice to the principle of non-refoulement. The best approach to these vague provisions is to interpret them by analogy to the case law on non-refoulement under the Returns Directive and as a back-up to the withdrawal of international protection – a right to stay on the territory and, where relevant, the suspensive effect of an appeal.

Updated Qs and As on the legal issues of asylum-seekers crossing the Channel

 

 

Professor Steve Peers, University of Essex

The issue of asylum seekers crossing the Channel has again arisen as a moral panic. These crossings raise a number of legal issues. There’s already a good discussion of many of them in the Free Movement blog, but I think it’s also useful to address some legal issues here, in a question and answer format. The following is an update of a January 2019 blog post on the issue; the updates particularly concern the Brexit process, with new material on bilateral treaties with France. 

Where are the international law rules on asylum?

 They are scattered all over the place incoherently. International lawyers like to describe their subject as ‘fragmented’, and that’s particularly true of asylum law. There are three main sources of law on asylum in Europe, and although they are legally separate, their rules overlap and interact. I won’t discuss every way in which this happens in this blog post – just those most relevant to the Channel crossings.

 The UN Refugee Convention

 The starting point is the United Nations (Geneva) Convention on the status of refugees, which defines what a refugee is and lists the rights of refugees. But that Convention does not deal with issues like asylum procedure, and has an uneasy and uncertain relationship with immigration law.

 ECHR

 Secondly, the European Convention on Human Rights (ECHR) says nothing about asylum explicitly, but the case law of the European Court of Human Rights has addressed a number of asylum-related issues, in particular arising from Article 3 ECHR, the ban on torture or other inhuman or degrading treatment. According to that case law, removal to another country to face a sufficiently serious risk of Article 3 treatment in that other country infringes Article 3 in the country removing the person concerned. A series of procedural obligations then follow from that.  (There are other international human rights treaties which take a broadly similar approach, but I focus here on the ECHR as its court rulings are binding and have a greater impact in practice).

EU asylum law

Thirdly, EU law has aimed to create a Common European Asylum System (CEAS) in several phases.  A first phase of EU asylum law was adopted from 2003 to 2005, and a second phase was adopted between 2010 and 2013. A (de facto) third phase of laws, responding to the perceived European refugee crisis of 2015, was proposed in 2016, but negotiations on those laws are still continuing (the Commission plans to attempt a relaunch of talks in autumn 2020).

 The CEAS consists of:

a) legislation on responsibility of asylum applications (the Dublin rules: currently the Dublin III Regulation);

b) the Eurodac system of taking fingerprints of asylum-seekers and ‘illegal’ migrants;

c) laws on the definition of ‘refugee’ and parallel ‘subsidiary protection’ status, and the rights of beneficiaries of either status;

d) asylum procedure;

e) reception conditions for asylum-seekers, ie rules on benefits, detention and childrens’ education; and

f) an EU asylum agency, which supplements Member States’ administrations applying asylum law, but does not replace them.  

As an EU Member State, the UK had an opt out from the EU’s Schengen system of (in principle) open internal borders, as well as an opt out on EU law on asylum, immigration and criminal law. In practice, the UK only opted in to some EU asylum laws: all of the first phase laws, but only some of the second phase laws (Dublin, Eurodac and the asylum agency).

Overall, the international asylum law rules are fragmented in various ways: the UN Refugee Convention only applies to certain issues, and has no enforcement mechanism; the ECHR case law is ad hoc and indirect; and while the EU asylum laws are potentially more coherent than the other two sources, only some of those EU laws apply to the UK. There’s also divergent national application of the laws, some of which is built in, as the various sources mostly set only minimum standards.

Can ‘illegal’ migrants be refugees?

The notion that ‘illegal’ migrants – ie those people who entered the country or arrived at the borders without authorisation – cannot be ‘genuine’ refugees is utter nonsense: morally, factually and legally. It’s inherent in the notion of fleeing a dangerous country that one might not have the documents to leave and/or the documents to enter another country – because the persecuting country might want to keep its dissidents where it can mistreat them, or because of moral panic in the country they might flee to.

This is recognised not just in popular culture – think of the plot underlying the romance of Casablanca – but also (for example) by the efforts of Raoul Wallenberg and others, who hardly felt constrained by the finer legal details in their efforts to save Hungarian Jews.

Legally, there’s no reference to immigration status in the definition of ‘refugee’ in the Refugee Convention (Article 1.A). Nor is there an exclusion from refugee status on the grounds of being an ‘illegal’ migrant in Article 1.F. Some refugee rights in the Convention are explicitly dependent on having lawful migration status, but some are not – most importantly the fundamental rule, in Article 33, that a refugee should not be sent to an unsafe country. 

Furthermore, there’s an explicit provision on the position of refugees who entered a country illegally – which would be irrelevant if they were not eligible to be refugees at all. In fact, Article 31 of the Convention restricts States from penalising refugees for irregular entry, subject to certain conditions. If the refugee doesn’t satisfy those conditions, a penalty for irregular entry could be imposed – but that does not mean that the person concerned is disqualified from being a refugee. For that matter, the ECHR and EU law don’t disqualify ‘illegal’ migrants from refugee status either. 

On the other hand, not all those who enter illegally are refugees: they must still meet the relevant criteria (fleeing their country of origin due to a well-founded fear of persecution due to race, religion, nationality, political opinion or particular social group). Moreover, it is still possible for States to argue that even though a person is (or might be) a refugee, their refugee status (or responsibility for considering their asylum claim) is the responsibility of another country. Let’s now turn to that issue. 

Don’t refugees have to apply in the first ‘safe country’ they enter – otherwise they are not genuine? 

While it is often strongly asserted that 'international law requires refugees to apply for asylum in the first safe country they enter', in fact the position is rather vaguer than that. The Refugee Convention doesn’t contain any express rule to that effect in the rules on the definition of refugee, or on the cessation (loss) or exclusion from being a refugee, as set out in Articles 1.A to 1.F of that Convention. 

However, there are some indirect suggestions in the Convention that the number of countries which a refugee has crossed through might be relevant. Article 31 of the Convention, which deals with ‘illegal’ entry (as discussed above), includes the condition that a refugee had to be 'coming directly' from the country which they had to flee, in order to avoid penalties for illegal entry. While the 'non-refoulement' rule in Article 33 of the Convention prevents States removing refugees to an unsafe State, it does not prevent refugees from being removed to a safe State. 

Furthermore, as noted already, some of benefits which the Convention gives to refugees (such as welfare and access to employment) are reserved for those who are lawfully resident or present in the territory; and the Convention does not require States to give refugees a lawful status under national immigration law. In particular, Article 32 of the Convention prevents expulsions of refugees in general (whether to an unsafe or a safe country, subject to exceptions), but its protection applies to ‘a refugee lawfully in their territory’. The obvious implication is that refugees not lawfully in the territory are protected only against expulsion to unsafe states, under Article 33. In fact, in its judgment on the validity of the EU law on relocation of asylum seekers (discussed here), the CJEU explicitly took the view (paras 338 to 344 of the judgment) that the Refugee Convention did not prevent removing an asylum seeker to another safe country, at least within the context of the EU’s relocation scheme. 

So overall, the Refugee Convention gives States a degree of flexibility to insist upon a 'safe third country' requirement, but there is no absolute rule that refugees must always apply in a ‘safe’ third country. If the Convention had intended to impose a firm rule in that regard, it would surely have said so expressly, defined the conditions for such a rule to apply, and provided for obligations for the first ‘safe’ country to readmit the refugee – for without such obligations the rule would not easily be workable. Moreover, the preamble to the Convention refers to the heavy burden which the grant of asylum may place upon some countries, and the need for international cooperation to avoid refugees becoming a source of tension between States. Taken as a whole, then, the drafters of the Convention recognized that a strict safe third country rule could impose undue burdens on countries neighbouring a conflict in some cases, but left it to States to work out the details of how to address such burdens when they occur.  

The EU’s Dublin rules are an example of a group of States working out such rules, and we’ll now look at them in more detail. But note that they don’t create obligations for asylum-seekers to apply in certain countries; they create obligations for States to admit those asylum-seekers if they are responsible for the application. Asylum-seekers can still apply in a State which isn’t responsible for them under the EU rules; but they might face the consequence that their application is deemed inadmissible (not unfounded on the merits) and they are transferred to the country responsible for their application, where they can apply for asylum (or pick up where they left off, if they had applied for asylum there already). This will make it de facto impractical for an asylum seeker to apply in a particular country, and one might describe the Dublin rules as setting out where asylum seekers should apply for asylum; but that’s not the same as a legal requirement to apply in a certain country. 

Travelling through one or more safe countries to apply in a particular country doesn’t mean that the asylum-seekers don’t have a genuine refugee claim; it just means that they prefer some countries to others, due to language or family links, for example. That doesn’t mean that they have a legal right to have their preference accepted; but nor does it mean that they are lying when they say that they faced persecution. 

(Note: part of this answer is adapted from my previous discussion of this issue in a 2015 blog post on the supposed EU refugee crisis). 

What do the Dublin rules say about which country has to consider an asylum application? 

It’s often claimed that the Dublin rules say that an asylum-seeker has to claim asylum in the first EU country they reach. Apart from the fact that the rules don’t regulate asylum seekers directly – as discussed above – the ‘first country they enter’ point is oversimplified. That’s not a rule as such, although in practice the Dublin rules will often – but not always – amount to assigning responsibility to the first country of entry. (For more, see my separate article and thread on the Dublin system).

The Dublin rules include a special rule for responsibility for unaccompanied minors, and then rules about responsibility for family members of someone who already has refugee or subsidiary protection status, or who has applied for it. (In fact, some asylum seekers come to the UK under the Dublin rules on the basis of such family member links). They also assign responsibility to a State which first issued an asylum seeker with a visa or residence permit, or which waived the visa requirement for them to enter. It also assigns responsibility to a State which they first entered illegally, or where they stay without authorisation. 

These criteria are often hard to prove, and the Dublin rules set out details about how States must cooperate applying them. It’s easier to apply them where the asylum-seeker has been fingerprinted already as an asylum-seeker or irregular entrant, because the Eurodac database then contains a record of this. Also, States have the option to consider an asylum application if they are not obliged to do so under the rules. 

It’s often argued that France is a ‘safe’ country for asylum seekers. The Dublin rules assume that all Member States are safe, but the case law of the CJEU and European Court of Human Rights have recognised exceptions, either where there is a systemic problem with the asylum system of a Member State (NS and MSS cases), or where there are problems for specific asylum seekers amounting to a real risk of torture or inhuman or degrading treatment (Tarakhel and CK cases). An asylum seeker might challenge their return to France under the Dublin rules on that basis (note that there's a recent judgment of the European Court of Human Rights, ruling that France breached ECHR standards for at least some asylum-seekers). If their challenge fails, this does not mean that they are not a genuine refugee; it simply means that their transfer to France, which is responsible for considering their asylum application, can go ahead. But this brings us to the question of how much longer the Dublin rules will apply between the UK and France. 

What’s the impact of Brexit? 

The UK is still bound by the UN Refugee Convention and the ECHR, because (as noted above) these are separate sources from EU law. In contrast, the impact of Brexit on the UK and EU asylum law is a rather different kettle of fish. 

The withdrawal agreement keeps in place the Dublin rules and other EU asylum legislation which binds the UK until the end of the transition period (discussed here), which is the end of 2020. During this period, the UK retains its opt out over new EU asylum laws (and its capacity to opt in to those laws, if they amend existing EU laws which apply to the UK). The withdrawal agreement contains no common rules on what happens to Dublin cases pending at the end of the transition period; the UK has adopted unilateral rules on this issue, but it remains to be seen what approach Member States will take. 

It’s possible that after that point a new treaty between the EU and UK, perhaps keeping in force the Dublin rules or some version of them, could be agreed. However, there is no reference to this possibility in the political declaration on the future relationship between the UK and EU (annotated here) – although that declaration is not binding, so can’t prevent such a treaty being negotiated if the two sides wish. Although the EU has signed Dublin ‘association agreements’ with some non-EU countries – Norway, Iceland, Switzerland and Liechtenstein – the rationale for this is that those countries are also associated with the EU’s Schengen system. In practice, the UK has tabled proposals for treaties on readmission of people and unaccompanied minors, which would replace aspects of the Dublin system, but the EU proposals do not so far deal with this issue. 

Alternatively the UK could arguably sign treaties or reach informal arrangements with individual Member States. (It’s not clear to what extent EU asylum laws confer external competence on the EU on asylum issues, which might limit Member States from doing this). Failing that (or in addition to it), the UK might try to make greater efforts than it does now to return asylum-seekers to non-EU countries – although the basic international law obligations (in the Refugee Convention, the ECHR, and under other international law) not to return a refugee to an unsafe country will still apply. 

The notion that those intercepted in the Channel or detected after crossing the Channel could be forcibly returned to France without that country’s consent is a non-starter (as is patrolling French territorial waters without consent). The referendum result is not a mandate to ‘take back control’ of a different country – least of all a country which English forces were booted out of in 1453. Comparisons to Australian policy miss the point: that country intercepts asylum seekers in international waters, and obtains the consent of the country or territory which it sends asylum seekers to. 

However, the separate bilateral treaties in force between the UK, France and other nearby states relating to ‘juxtaposed controls’ – the exercise of power by the immigration control officers of one country on the territory of another – will not automatically cease to apply at the end of the transition period. These include notably the Le Touquet treaty, as supplemented in 2018 by the Sandhurst agreement, which provides for some broader UK/France cooperation. Note, however, that while juxtaposed controls are linked to an asylum responsibility system, and the former treaty includes a provision on responsibility for asylum claims made to UK border officials exercising controls in France (or before a vessel departs), they are not a full asylum responsibility system as such. In particular these treaties have no direct impact on people who evade such controls by crossing the Channel on boats without authorisation. The UN Protocol on the trafficking in persons, the Council of Europe Convention on trafficking in human beings and the UN protocol on smuggling of migrants oblige States to take back their citizens and some permanent residents who have been smuggled or trafficked; but there's notably no obligation to take back other non-citizens who have been smuggled or trafficked from their territory.

The end result of this is that for one category of non-EU citizens – asylum-seekers whose application would be the responsibility of another country under the Dublin rules – the effect of Brexit may be ultimately to reduce UK control of migration, not increase it. What a tangled web some people weave, when first they practice to deceive.

*Amended on August 9 2020, as regards asylum applications made to UK border officials under the Le Touquet treaty. Amended on August 12 2020 to add a sentence on the UN Protocols on trafficking and smuggling of persons and the Council of Europe Convention on trafficking in human beings. Amended on August 13 2020 to add a reference to a recent ECtHR judgment against France. Updated August 17, 2020 to add link to separate article and thread on the Dublin system.

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:5

Photo credit: whitecliffsofdover.co.uk