Brussels, 14/03/2016 (Agence Europe) - Under what conditions may an EU member state send “'war refugees” back to a non-EU third country that is deemed to be safe?
This question will do the rounds at a meeting in Brussels of EU heads of state and their Turkish counterpart on 18 March, which will mark a new stage in the aim of getting an agreement to allow the automatic deportation to Turkey without a full assessment of requests for international protection of migrants who have landed in Greece. But it is in Luxembourg on 17 March that legal information about this question will be provided that will feed into the debate on the draft EU-Turkey agreement (see EUROPE 11509).
In fact, judges from the European Court of Justice will be issuing a ruling in Case C-695/15 on an asylum-seeker that Hungary wants to send to Serbia, a country described as a safe third country. This is a symptomatic case for the refugee crisis in Europe and the problems it is causing for the Dublin system.
The case was sent by a Hungarian court as an emergency preliminary ruling procedure to the European Court of Justice. The Hungarian court has a case before it of a Pakistani who entered Hungary illegally from Serbia. The Pakistani made an initial request for international protection but left the country during the course of the proceedings, which were closed on the grounds that the request had been implicitly withdrawn by the asylum-seeker.
Arrested later in the Czech Republic, while attempting to reach Austria, the man was sent to Hungary, where he was placed in detention and allowed to use his right to submit a second request for international protection. The new request was deemed not eligible without examination of the details of the case. Hungary finally decided to send the man to Serbia, which it considers a safe non-EU country, but this decision was challenged by the Pakistani.
In this case, which raises questions about the conditions under which a member state may deport someone seeking international protection to a safe third country, advocate general Juliane Kokott unveiled conclusions to the Court on 8 March. She starts by pointing out that sending someone away does not seem to raise any problems of principle since it is foreseen in EU law. Hence a seeker of international protection can be sent to a safe third country under EU Directive 2013/32/EU. While there is no ambiguity about this point, the question arises of whether an assessment of the request needs to be carried out before such a transfer can take place.
As long as certain conditions are met, such an assessment is not necessary, says the advocate general and a member state is not obliged to assess the request in detail before making the transfer, though it is that country that is due to process the request. This is made possible by the “simplified system” foreseen in the directive, which only covers asylum seekers from safe European third countries (countries that observe particularly high standards for human rights and refugee protection) when the asylum-seekers, like the Pakistani in this case, entered a member state illegally.
In order for the simplified system to apply, a third country needs to meet three conditions. The country must have ratified the Geneva Convention without any geographical limits, must have an asylum procedure recognised by law and must have ratified the European convention that safeguards human rights and fundamental freedoms.
Could such a system, whereby requests from migrants who enter Greece illegally are considered ineligible without examining the details of the case, be set up with Turkey? The European institutions are persuaded that it is possible. Judging by the conclusions of the advocate general for this case, it appears that it could be considered as long as Turkey is deemed a safe European third country. But Turkey does not meet one of the above-mentioned three conditions in that it applies a geographical limitation to application of the Geneva Convention.
European leaders' political response to this question at the EU-Turkey summit will probably take account of the Court's ruling, expected on 17 March. (Original version in French by Jan Kordys)