‘Safe countries of origin’ in asylum law: the CJEU first interprets the concept

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: viewsridge, via Wikimedia commons

 

Introduction

Along with judgments on Afghan women asylum seekers (discussed here) and the status of Turkey as a ‘safe third country’ (discussed here), the Court of Justice of the European Union recently gave its first judgment interpreting the substance of the concept of ‘safe countries of origin’ in EU law. The judgment addressed a number of important points, interpreting the law in ways that may have broad relevance to EU law on asylum procedures going forward.

EU legal framework

Previous rules

The concept of ‘safe countries of origin’ goes back, at EU-wide level, initially to ‘soft law’ adopted in the early 1990s (one of the ‘London Resolutions’ of 1992). Next, the principle first 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’. The latter concept was then further defined: it applied to countries (as described in Annex II to the Directive) where:  

on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC [the first-phase qualification Directive], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

When ‘making this assessment’, Member States had to take account, ‘inter alia, of the extent to which protection is provided against persecution or mistreatment by’:

	- the relevant laws and regulations of the country and the manner in which they are applied;
	- observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;
	- respect of the non-refoulement principle according to the Geneva Convention;
	- provision for a system of effective remedies against violations of these rights and freedoms.

When applying these tests, Member States had to ‘have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned’, and the ‘assessment of whether a country is a safe country of origin’ had to ‘be based on a range of sources of information, including in particular information from other Member States, the UNHCR, the Council of Europe and other relevant international organisations’.

Furthermore, the Directive expressly provided that Member States could designate ‘part of a country as safe where the conditions in Annex II are fulfilled in relation to that part’. It was also open to Member States to continue in place pre-existing rules that fell short of the standards in the Directive to some extent; these rules could also be applied to part of a country, or to designate a country (or part of it) ‘as safe for a specified group of persons’. There were safeguards for individuals: for the ‘safe country of origin’ concept to apply, they would have to be nationals of the country concerned (or stateless persons who were habitual residents of it), and must not have ‘submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee in accordance with’ the qualification Directive. Also, Member States were obliged to ‘lay down in national legislation further rules and modalities for the application of the safe country of origin concept’ – although there was no indication of what those rules and modalities might concern.

Finally, there was a power for the EU to adopt common lists of ‘safe countries of origin’, by means of a special procedure. But this power was soon annulled by the CJEU, when the European Parliament successfully challenged the prospect of using such a special procedure.

Current rules

The current asylum procedures Directive, adopted in 2013, retains the ‘safe countries of origin’ concept as an option for Member States to apply an accelerated procedure to. There is no longer a reference to potentially treating only part of a country as safe, and the 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 notion of a common EU list was not revived in the Directive; although the Commission subsequently proposed such a list (consisting of Western Balkans states and Turkey) in 2015, that proposal did not receive enough support and was withdrawn in 2019. An express requirement for regular review of the supposedly ‘safe countries of origin’ by Member States has been added. Otherwise the rules on ‘safe country of origin’, including the core definition of the concept, were not amended.

However, the rules on appeals, elaborated compared to the previous Directive, now address the issue too. Although the 2013 Directive provides that in principle asylum-seekers can remain on the territory pending resolution of their appeal, there is an exception for (inter alia) most accelerated procedures, including the ‘safe country of origin’ rule. In such cases Member States, if they opt not to give an appeal suspensive effect, must at least allow a court to rule on whether or not the asylum-seeker can stay pending the appeal; and the asylum-seeker can at least stay until a court has ruled on this point.

Before the recent judgment, the CJEU has only ruled on these provisions once, and on a purely procedural point: according to the Court, Sweden could not apply a ‘safe country of origin’ rule until it legislated for one in national law. Sweden duly did so. In passing, the Court confirmed the usual understanding that the ‘safe country of origin’ rules set out a ‘rebuttable presumption’.  

Future rules

The 2024 asylum procedures Regulation has amended the ‘safe country of origin’ rules again. This entails: explaining the concept of ‘non-refoulement’; confirming that rebuttal of the presumption by an asylum-seeker must take place ‘in the framework of an individual assessment’; again expressly providing for exceptions 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’; and again allowing for the adoption of a common EU list (this time not via a special procedure, so not repeating the previous legal problem with the concept of such a list). There is no longer any reference to national rules providing for further ‘rules and modalities’ of the concept.

In the broader context, the ‘safe country of origin’ concept is still on the list of possible accelerated procedures, but the use of those procedures will now be mandatory for Member States. In practice the concept might cross over sometimes with the new ground of accelerated procedures where the country of origin has an international protection recognition rate below 20%. It will be expressly possible (although arguably it will only be optional) to apply this ground for accelerated procedures to unaccompanied minors. The implications of accelerated procedures are more explicitly harmonised: three months (instead of the usual six months) to decide on the application, and between five and ten days (instead of the usual two weeks to a month) to bring an appeal. The exception to the right to remain pending appeal (subject to a court ruling otherwise) in such cases becomes mandatory, with some harmonised rules added: a time limit of at least five days to request a court to remain on the territory, along with interpretation and legal aid. As before, accelerated procedures are linked to the rules on a border procedure, which have also been heavily amended.    

National practice

The EU asylum agency has produced a useful map of which countries have been designated as ‘safe countries of origin’ (and ‘safe third countries’) by Member States. Furthermore the agency reported on the national application of these concepts at the end of 2022. As regards ‘safe country of origin’, the report indicates that a large majority (although not quite all) Member States apply the concept. The exceptions are Poland, Latvia, Spain, Bulgaria, Lithuania, Portugal and Romania; Finland applies the concept, but without a list.

Several Member States apply geographic exceptions, namely for parts of Armenia, Bosnia and Herzegovina, Georgia, Moldova, the USA and India. Some Member States also apply exceptions for groups of people, in particular LGBT applicants, minorities, criminal cases, political activists, journalists, human rights defenders, victims of discrimination or forced marriage, and women and girls. There is some variation in which countries are listed as ‘safe’, with Western Balkans states being listed most frequently. The report details a number of judgments of national courts concerning both the listing of particular countries and their application to individual circumstances, with mixed results – some judgments uphold the listing or its application to an individual asylum-seeker, but some do not. The recent CJEU judgment is, as we shall see, relevant to the geographic exceptions; and a pending case asks the CJEU about the exceptions for groups of people.   

The judgment

The recent judgment concerned the Czech designation of part of Moldova (except the Russian-occupied Transnistria) as ‘safe’. Faced with an appeal by a Moldovan asylum seeker who was subjected to a ‘safe country of origin’ rule, the national court asked three questions: a) could a country be designated a ‘safe country of origin’ even if it had triggered the derogation from (some) ECHR rights set out in Article 15 ECHR (which Moldova had done after the Russian invasion of neighbouring Ukraine)?; b) could only part of a country be designated as ‘safe’; and c) could a national court raise the legality of the designation of its own motion?

On the first point, the Court ruled that invoking Article 15 ECHR did not automatically prevent or cancel the designation of a country as a ‘safe country of origin’. This was because the ECHR set out guarantees for use of the derogation in Article 15, limiting its use to cases where it was necessary, requiring no conflict with other international law, allowing derogations only from certain rights and remaining subject to review by the European Court of Human Rights. (On the relevant case law, see that Court’s guide to Article 15). Also, it could not necessarily be assumed that invoking Article 15 meant that rights were actually derogated from; nor did use of the derogation as such determine the nature and extent of the derogation.

However, the CJEU pointed out that triggering an Article 15 ECHR derogation must mean that Member States had to review the ‘safe country of origin’ listing, on the basis of the obligation to review the designations in light of developments set out in the Directive. That review should be triggered by significant events likely to affect whether a non-EU country still meets the ‘safe country of origin’ criteria, which include the invocation of a derogation from the ECHR – even though the derogation would affect rights other than Article 3 ECHR (the ban on torture or other inhuman or degrading treatment), because Article 15 ECHR does not allow derogation from Article 3.

The Court did not address the arguments in the Advocate-General’s opinion, concerning the protocol on asylum for EU citizens by analogy. That protocol provides that EU Member States are ‘safe countries of origin’ for each other’s citizens, meaning (in the context of the protocol) that asylum applications from EU citizens cannot be considered at all – unless a Member State either: invokes a derogation under Article 15 ECHR; or the Article 7 TEU process of either sanctioning a Member State for a ‘serious and persistent breach’ of EU values, or warning a Member State that there is a ‘clear risk of a serious breach’ of such values, has been applied (or triggered, as regards a warning; on this point, see the Hungary v European Parliament judgment); or a Member State decides to do so unilaterally for an individual applicant. In the Advocate-General’s view, the protocol could not apply by analogy due to its different context: an expression of mutual trust applicable to EU citizens only.

On the second question – whether a non-EU country could be designated as a ‘safe country or origin’ only in part – the Court first looked at the wording of the Directive, which used the word ‘country’ without indicating that it may be referring to only part of the territory. Secondly, the context of the Directive included the definition of ‘safe country of origin’ in the Annex; that definition did not suggest either that only part of a country could be designated, and the words ‘generally and uniformly’ suggested the opposite.

Next, the ‘safe country of origin’ rule was an ‘exception’ to the normal process of considering asylum applications, and such derogations should have a ‘strict interpretation’ (referring to the case law on inadmissible applications), notably where an interpretation had no support from the text. Also, the Court looked at the historical context, noting that: the 2005 Directive expressly provided for parts of countries to be listed; the 2013 Directive does not; and the proposal for what became the 2013 Directive explicitly stated an intention to remove the possibility. Finally, the Court referred to the objectives of the asylum procedures Directive, taking the view that the EU legislature was trying to balance the objectives of a speedy versus a thorough assessment of asylum applications. This was a discretionary choice that was reversed by the 2024 Regulation; a change of mind was the prerogative of the EU legislature, provided that it complied with the Refugee Convention and the Charter. And the wording of the 2024 Regulation reinforced the point that designation of only part of a country was not provided for in the 2013 Directive.  

Again the Court’s judgment does not discuss a point analysed by the Advocate-General – as to whether the ‘effective territorial control’ principle, which limits the liability of countries (including Moldova, in this context) for breaches of the ECHR on their territory controlled by another State, applies in the context of EU asylum law to allow for the designation of only part of their territory as ‘safe’. In the Advocate-General’s view, the issue of state liability for breaches of international law is distinct from the issue of the listing of ‘safe country of origin’ under EU asylum law; and the EU legislature decided to provide for listing of whole countries only, even being aware of the ‘effective territorial control’ issue.

On the third point – consideration of the designation of ‘safe country of origin’ by a court on appeal, of its own motion – the CJEU ruled that, taking account of its prior case law giving a strong role to courts reviewing asylum decisions, including on procedural issues, such designations have to be reviewed by courts of their own motion even if the asylum applicant does not raise the point. In particular, the courts have to review the invocation of derogations from the ECHR and the territorial scope of the ‘safe country of origin’ designation. Again, the Court did not address an issue raised by the Advocate-General – the analysis, in the alternative, of how the EU law principle of equal and effective remedies would apply in a case like this one.

Comments

The Court’s judgment raises a number of points that could be relevant to EU asylum procedures law more generally. On the first point (the ECHR derogation), the ruling at first sight may only apply to ECHR parties; but logically it applies by analogy also to any derogations from other human rights treaties (including the ICCPR, which is expressly mentioned in the Directive), and/or from national human rights protection – taking into account any relevant differences from the ECHR (the prospects of effective judicial review of the derogation, and the particular rights being derogated from, which were key features of the Court’s judgment). After all, human rights abuses (triggering asylum claims) often take place during supposed states of emergency. 

The judgment also makes clear that reviews of ‘safety’ must be triggered by significant events – not only, as Member States might prefer, taking place at regular prescheduled intervals. It follows that a failure to conduct a review in light of a significant event is a procedural flaw that can be challenged. Moreover, this judgment should logically apply by analogy to the reviews of the EU common list provided for in the asylum pact Regulation – as well as to national and EU reviews of ‘safe third countries’.  

As for the dog that didn’t bark – the comparison with the protocol on asylum for EU citizens – the better argument than in the Advocate-General’s opinion is surely that in addition to the obvious difference in wording, the context of the Directive is hugely different too. Although the protocol uses the phrase ‘safe countries of origin’, unlike the Directive it does not create a rebuttable presumption, but rather a complete ban on considering applications (in principle) from EU citizens; so it makes sense that the conditions for applying the protocol are more stringent, since the key safeguard of the possibility of the individual right to attempt to rebut the presumption is absent.

On the second point – the inability to label part of a country as ‘safe’ – as we can see from the practice above, this would mean changes in a number of Member States. Of course, this is only short term, because the asylum pact legislation will soon allow such designations again. But the Court’s express reference to the new Regulation may give us a broader indication of how it will interpret the pact. It suggests that while the EU legislature has a discretion to choose between prioritising speedy or thorough consideration of applications, that choice must comply with the Charter and the Refugee Convention. Given the reduction in standards in the Regulation – and the further reductions in standards that the Commission and many Member States seem to be gagging to make as soon as possible – the Court’s assessment of whether EU asylum law indeed complies with the Charter and the Refugee Convention is likely to be of increasing importance in the future.

This part of the judgment also confirms that the concept of ‘safe country of origin’ is an exception which must be interpreted strictly, by analogy with the case law on inadmissibility which often finds that Member States’ interpretations of the grounds for inadmissibility have been too restrictive. This logically applies by analogy to all grounds for accelerated procedures, a fortiori after they become mandatory under the 2024 asylum pact.

Finally, the third point – judicial review of the ‘safe country of origin’ designation, on its own initiative – logically applies by analogy too, to other aspects of the principle besides those at issue in this case, and to listings of ‘safe third countries’ also. Although strengthening judicial review may have limited effect in such cases, given the absence of suspensive effect of appeals, confirming the wider power of courts to examine the validity of designating countries in the list on their own motion may make it easier to convince them to grant such suspensive effect, given the wider array of remedies which an applicant can therefore seek.

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 8: the ‘crisis’ Regulation – and conclusions

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Sam Zidovetski, via Wikimedia Commons

(Last amended June 18 2024: amendments 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 comprise a ‘package’ of new or revised EU asylum laws, which was formally adopted on 14 May 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 eighth and final post in the series, on the Regulation on derogations in the event of a crisis, which derogates from the asylum procedures Regulation and the revised Dublin Regulation. It also includes discussion of the ‘crisis’ rules in the Regulation on a borders return procedure, and conclusions on the asylum package as a whole. 

The previous blog posts in the series concerned 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 procedures Regulation (part 7).*

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 crisis Regulation

The existence of a free-standing Regulation on exceptions in the event of a crisis situation is new, although there is also a Directive on temporary protection in the event of a mass influx (invoked after the Russian invasion of Ukraine) and some derogations to address large numbers of asylum applications in other EU asylum laws. There were also emergency laws on relocation of asylum seekers, to deal with the perceived refugee crisis in 2015, but they expired in 2017.

Ireland has opted out of the crisis Regulation, and the Regulation does not apply to Denmark, although Denmark (and non-EU Schengen associates) will be covered by the crisis rules in the border returns procedure Regulation.

The legislative process leading to the 2024 Regulation began with a proposal in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact.

Like most of the rest of the new package, the Regulation will not apply for two years - on 1 July 2026.* The rationale of the Regulation is that ‘[t]he EU and its Member States may be confronted with migratory challenges that can vary greatly, in particular with regard to the scale and the composition of the arrivals. It is therefore essential that the Union be equipped with a variety of tools to respond to all types of situations’, which are ‘complementary’ to the provisions in the 2024 Dublin Regulation and the temporary protection Directive, ‘which may be used at the same time’. (The original proposal would have repealed the temporary protection Directive)

General Provisions and Scope

Among other things, as noted already, the crisis Regulation provides for derogations from the Dublin Regulation and the Procedures Regulation. However, it ‘shall not affect the fundamental principles and guarantees’ in those Regulations, and the ‘[t]emporary measures’ it provides for are subject to necessity and proportionality, must ‘be appropriate to achieving their stated objectives’, ensure the rights of asylum-seekers and those with international protection, ‘and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis.’ It ‘shall be applied only to the extent strictly required by the exigencies of the situation, in a temporary and limited manner and only in exceptional circumstances’

The preamble emphasises that besides the derogations, other EU asylum law applies fully. Furthermore, the exceptions in the Regulation cannot be invoked by Member States unilaterally: Member States can apply the provisions of the Regulation ‘only upon request and to the extent provided for in’ the Council Decision triggering it.  

As for its scope, the Regulation applies to two types of ‘crisis’ and to ‘force majeure’, as further defined. The first type of crisis is a ‘mass arrival’:

an exceptional situation of mass arrivals of third-country nationals or stateless persons in a Member State by land, air or sea, including of persons that have been disembarked following search and rescue operations, of such a scale and nature, taking into account, inter alia, the population, GDP and geographical specificities of the Member State, including the size of the territory, that it renders the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional, including as a result of a situation at local or regional level, such that there could be serious consequences for the functioning the Common European Asylum System

The second type of crisis is an ‘instrumentalisation’ crisis, ie Belarus shoving people across the border:

where a third country or hostile non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security.

The preamble qualifies this definition: non-state actors ‘involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’; and ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

In this context, Member States can ask to trigger the Regulation ‘in particular where there is an unexpected significant increase in the caseload of applications for international protection at the external borders’. And they can ‘only’ use the derogations in any Council decision triggering the Regulation to people ‘who are subject to instrumentalisation and who are either apprehended or found in the proximity of the external border’ – as distinct from internal borders – ‘in connection with an unauthorised crossing by land, sea or air, or who are disembarked following search and rescue operations or who have presented themselves at border crossing points’. But the preamble to the Regulation also states that in this context, ‘effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter and the [Refugee] Convention.’

Finally, ‘force majeure’ means ‘abnormal and unforeseeable circumstances outside a Member State’s control, the consequences of which could not have been avoided notwithstanding the exercise of all due care, which prevent that Member State from complying with obligations under’ the procedures and Dublin Regulations. The preamble gives the examples of pandemics and natural disasters.

Process

The process of triggering the Regulation starts with a request from a Member State, which believes it is in a crisis or force majeure situation and so sends a request to the Commission. Following this request, the Commission has two weeks to assess it and adopt a decision determining whether that Member State is indeed in a crisis or force majeure situation. Next, at the same time as adopting that decision, the Commission must, ‘where appropriate’, propose a further Council implementing decision to benefit that Member State; the Council must also act within two weeks.

The Council decision must set out some combination of derogations from EU asylum law, a ‘solidarity response plan’, or an identification of which non-EU citizens are being ‘instrumentalised’.  Also, the Commission can adopt a recommendation urging that Member State to apply an expedited procedure for applications likely to be well-founded, in which case the Member State must decide on those applications within four weeks, derogating from the usual time limits in the procedures Regulation (see part 7).

The Council decision will not apply indefinitely. It can apply only for a year in total: initially three months, with a three month extension confirmed by the Commission; then another Council decision amending it or prolonging it for three months, again with a possible three month extension if the Commission agrees. It is not clear how soon afterwards the Member State could ‘go back to the well’ to ask for another Council decision. The Commission and Council must monitor whether the situation of crisis or force majeure continues to exist, and the Commission ‘shall pay particular attention to the compliance with fundamental rights and humanitarian standards’. The EU Solidarity Coordinator, whose post was set up by the 2024 Dublin Regulation, also plays a role.

Solidarity Measures and Derogations

A Member State facing a crisis situation can request any of the various solidarity measures defined in the 2024 Dublin Regulation (see part 6): relocation (including of recent beneficiaries of international protection), financial contributions (including to non-EU states), and alternative measures. If the relocation pledges fall short, there are a number of rules on offsets (ie other Member States taking responsibility for applicants that they would otherwise have transferred to the Member State in crisis).

As for derogations from other EU asylum laws, the first potential derogation is from the procedures Regulation (see part 7), in any crisis or force majeure situation: Member States can have up to four weeks to register asylum applications, instead of five days. Next, there are a series of possible derogations from the borders procedure in the procedures Regulation: an extra six weeks to apply the procedure (on top of the usual 12 week maximum); an exemption from the obligation to apply the procedure to applicants from countries with low recognition rates; a change to the threshold of the ‘low recognition rate’ rule (either a reduction or an increase to the threshold); or deciding on the merits of all ‘instrumentalisation’ cases in the border procedure, subject to detailed safeguards for minors and families and those with special procedural or reception needs, and protection of ‘the basic principles of the right to asylum and the respect of the principle of non-refoulement as well as the guarantees’ in Chapters I and II of the procedures Regulation.

Third, in the event of force majeure or ‘mass arrival’ crises, the beneficiary Member State can extend a number of deadlines in the Dublin rules, accompanied by a delay in Dublin transfers to that Member State. Finally, in the case of ‘mass arrival’ crises, a Member State may be relieved from certain obligations to take back asylum applicants under the Dublin rules.

Border Return Procedure Regulation

The Regulation on a border return procedure provides that in the event of a crisis, as defined in the crisis Regulation, those who are subject to the border return procedure in that Regulation, because their applications were rejected in the border procedure in the procedures Regulation, and they have no right to remain, can be kept in the border return procedure for an additional six weeks – on top of the ordinary 12 weeks allowed for in the border return procedure Regulation. But as with the ordinary application of that Regulation, if they are not expelled before this extra time runs out, any detention during this period counts toward the detention time limits in the Returns Directive (see further part 7).

The procedural rules in the main crisis Regulation apply – ie a Member State cannot extend the border returns procedure unilaterally, but needs a Council decision authorising it. In that event, though, the extension of the border returns procedure can apply even to those whose asylum application was rejected before that extension was authorised.

Assessment of the crisis Regulation

To what extent, as some seem to believe, can Member States simply end the right to asylum in the event of a crisis or force majeure? In principle, not at all. The derogations in the exceptions and border return procedures Regulations are for a limited time, and only permit delays in registering applications, extensions of the Dublin deadlines, and longer periods to apply the border procedure or border return procedure – neither of which terminate the right to asylum as such. This is reinforced by the provisions of the Regulation that emphasise that other provisions of EU law, along with human rights obligations, still apply when the derogations are used. This is, of course, consistent with the Charter rights and Treaty obligations relating to human rights and asylum, including non-refoulement.

Moreover, the wording of the Regulation suggests that Member States can only derogate from EU asylum law to the extent provided for in this or other EU measures, confirming the prior case law of the CJEU (Case C-72/22 PPU; the Court has also ruled in that and many other cases that the ‘law and order’ clause in Article 72 TFEU does not give Member States carte blanche to derogate from EU asylum law). In particular, the Court ruled that, in situations of instrumentalization, Member States could not simply detain asylum-seekers on the grounds of illegal entry (as it is not a ground for detention under the reception conditions Directive, which remains the case: see part 2) or refuse to consider their asylum applications. The crisis Regulation does not provide for either of those measures as such; but Member States may attempt similar measures indirectly – by detaining people on border procedure grounds, and by closing border posts pursuant to the amendments to the Schengen Borders Code – although that and other measures regarding ‘instrumentalisation’ in the recent Borders Code amendments are subject to human rights safeguards.

Overall assessment of the asylum package

Taken as a whole, the 2024 EU asylum laws are obviously not a shift towards a more liberal legal framework for asylum and migration control. Still less are they a shift toward a radical abolition of border control, as some on the populist right are likely to claim. But nor can they plausibly be characterised, as some on the opposite side of the political spectrum claim, as a de facto abolition of the right to asylum in the EU – at least on paper. Yet it is possible that having been given an inch, Member States will take a mile; and given the record of its approach to the EU/Turkey and Italy/Albania agreements, the EU Commission may do more to help Member States in this goal than to hinder them. In that context, the role of national courts, including their requests for preliminary rulings from the CJEU, may continue to be crucial as regards the interpretation and application of EU asylum law.

Analysing the letter of the new laws (as distinct from how Member States might try to apply them), the moves towards sanctions for secondary movements and greater harmonisation of the law – rationalised as an indirect method of dissuading secondary movements – are consistent across the package. This is a reversal of the usual EU paradigm, which justifies harmonisation of law as a measure to facilitate movement across borders, not deter it.

The sanctions for secondary movement (alongside applying the Dublin rules for longer, and simply locking more people up to prevent any movement at all) entail the (conditional) loss of benefits and access to employment, the reset of the clock on obtaining EU long-term residence status, and (crucially) the deemed withdrawal of asylum applications. There is a deep inconsistency between encouraging greater negative mutual recognition of asylum refusals, while doing very little to promote positive mutual recognition (transfer of protection, mobility of international protection beneficiaries), despite the Treaty commitment to a uniform asylum status ‘valid throughout the Union’. As for harmonisation, it is not complete, but it has gone a long way, with the bonfire of most options for Member States and a lot of additional detail added to ensure that decision-making diverges less.

From the human rights perspective, it is the harmonisation of procedural standards that raises the biggest concerns. As we have seen, the restriction of appeals against Dublin transfers, a number of the deadlines to apply for appeals, and the curtailment of automatic suspensive effect of appeals are all problematic – depending on how the CJEU might approach them in light of its case law on effective remedies. On the merits, there are various default protections against non-refoulement, but it is uncertain how they will work in practice. And while the multiple fast track procedures are all subject to the observance of basic standards on paper, there are doubts about whether that is true in practice – leaving the possibility that the protections of EU asylum law will for many be a form of Potemkin village.

There is nonetheless the risk that, since NGOs have asserted that the new package destroys the right to asylum, some governments may interpret it as a licence to do just that. In this area, the problem with ‘crying wolf’ may not be so much that people stop believing your warnings – but rather that people use your cries as an inspiration to develop a wolf-based asylum policy.

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.