Italy is having difficulties with the proposal to establish a common asylum procedure that can combine both a negative decision on an asylum application and a simultaneous return decision and wants to be able to keep both acts. This demand is even a “red line” for Rome, according to an EU Council document dated 22 December and including comments from various national delegations.
The new Article 35a of the Regulation requires Member States to issue their asylum and return decisions in a single act or, failing that, in acts adopted at the same time and jointly. Where the return decision is issued as a separate act, it shall, as a general rule, where possible, be issued and delivered notified at the same time and together with the decision rejecting the application for international protection. without undue delay, the Regulation says.
“Keeping two separate acts is a red line for Italy, taking into account the Italian current legal system. The issuance of a single act, or of two separate but simultaneous acts, should stand as an aim to be reached but not as an obligation”, thus argues Rome.
Austria, on the other hand, is calling for clarifications regarding the concept of ‘safe third country’ which has not been defined or further extended in this regulation, as this concept allows for a faster processing of the asylum application. Austria wants to extend the principle and argues that the “acquis (communautaire) sets much higher standards on the use of the ‘safe third country concept’ than required by international law”.
“The ‘safe third country’ concept should be recognised as part of the overall approach to asylum and migration management in the Asylum and Migration Management Regulation”, Vienna adds. Austria would also like to break the connection in the ‘safe third country’ concept “which can currently only be applied in cases where a link between the applicant and the country in question can be established”.
Austria accepts the need for flexibility of some Member States with regard to the two separate acts of decision, but wants guarantees that this does not paralyse the logic of the regulation, which is to speed up and streamline procedures.
Belgium, on the other hand, points to certain organisational problems in its court system, in particular with regard to the non-suspensive nature of appeals against return orders. Belgium also wants to guard against rulings by the Court of Justice of the EU regarding the difference between irregular migrants who have applied for asylum, which was subsequently rejected, and irregular migrants who have not applied for asylum, and argues that there should be no discrimination between the two categories.
Link to comments: https://bit.ly/3n1er8x (Original version in French by Solenn Paulic)