On Wednesday 3 September, the Danish Presidency of the EU Council has proposed an initial compromise on the revision of the ‘safe third country’ (STC) concept (see EUROPE 13644/9).
Member States will discuss this issue at the Asylum Working Party on 8 September. Presented in May, this revision makes it optional for a connection criterion to be taken into account when returning a person whose asylum application has been rejected in the EU to a third country from which he or she does not originate, but which could also offer equivalent protection, although this country must always be ‘safe’.
It was this concept that underpinned the EU-Turkey agreement in 2016 to send Syrian asylum applicants back to Turkey.
In its working document, the Presidency explains that it has “noted strong support from delegations to remove regulatory obstacles in order to allow for a more effective application of the safe third country concept in the future”.
In July, a broad majority of delegations expressed “support for both the complete removal of the current connection criterion in the APR as well as the Commission’s proposed alternatives to that requirement”.
The Presidency has not proposed any editorial changes to the connection criterion, but clarifies in a recital that “Member States will be free to determine what constitutes a ‘connection’ through its own law and practice”. This particular aspect is not reflected in either the recitals or operative part of the proposal, the Presidency argues.
“In view of this, and in light of the fact that the provision is open to different interpretations due to the ambiguity inherent in the expression ‘reasonable connection’, the Presidency proposes to amend the accompanying recitals with the aim of ensuring that the connection requirement is potentially applicable to a broad range of situations”.
The proposed revised recitals state in particular that “Member States should have the possibility to apply the safe third country concept on the basis of a connection, as defined in national law in light of the parameters outlined in the case law of the Court of Justice of the European Union, between the applicant and the third country concerned, by which it would be reasonable for the applicant to go to that third country. The connection between the applicant and the safe third country could include in particular that members of the applicant’s family are present in that country, that the applicant has settled or stayed in that country, or that the applicant has linguistic, cultural or other similar ties with that country”.
The Presidency also states, with regard to the fact that Member States may apply the safe third country concept on the basis of agreements or arrangements with a third country, that a significant number of Member States wanted the expression ‘agreement or arrangement’ to be interpreted broadly “so as to avoid limiting the type of instruments that may form the basis for Member States’ safe third country schemes”.
The text also proposes a ‘non-affection clause’ which would provide that the conclusion of an agreement or arrangement between the Union and a third country is without prejudice to the parallel application of Member States’ agreements or arrangements with the same third country, provided that the agreements or arrangements of the Union and the Member States at issue have the same material scope of application.
The Presidency also suggests further clarifying the meaning and scope of the transit criterion to avoid ambiguities in certain situations. “For example, a situation where an applicant has been in airside transit via an international airport in the third country may be the subject of possible ambiguity, as in such cases a person is often not formally admitted to the territory of the third country. Likewise, there may be situations where applicants have entered the territory of the Member States directly via the safe third country after a longer stay in that country, which, depending on the circumstances, may not qualify as a ‘reasonable connection’, while at the same time also not necessarily coming within the ambit of a strict reading of the term ‘transit’. A definition of ‘transit’ could therefore be introduced”.
Minors. The Presidency also makes changes to the case of unaccompanied minors. It calls on Member States not to automatically proscribe measures at EU level that are not prohibited by international law.
Thus “while it may only rarely be the case that a transfer of an unaccompanied minor to a safe third country would be in line with international obligations”, the Presidency nonetheless proposes “a new provision, establishing that Member States may transfer an unaccompanied minor on the basis of an agreement or arrangement only where this is in accordance with general principles of EU law as well as with international law”.
Further information: https://aeur.eu/f/i8x (Original version in French by Solenn Paulic)