On Friday 3 October, the Member States’ ‘Justice and Home Affairs’ Advisers will discuss two new compromise proposals from the Danish Presidency of the Council of the EU on the concept of ‘safe third country’ (STC) and the list of ‘safe countries of origin’ (SCO) (see EUROPE 13701/13, 13701/14).
While the initial reception by Member States of the first compromises on these two proposed amendments to the Asylum Procedures Regulation (APR) was relatively positive (see EUROPE 13708/3), the Presidency is once again increasing the flexibility given to Member States in the various procedures. For example, it now makes it voluntary for a Member State to inform the Commission when it has entered into a partnership with a third country in order to apply the ‘safe third country’ concept.
While the Commission has no longer made it compulsory for there to be a link between a third country and an asylum seeker whose application is deemed too weak to be examined in the EU, these partnerships aim to make it possible to transfer an asylum seeker to a third country, even if the person in question has not transited there or has no family there, if the third country in question meets all the required safety conditions, such as the principle of non-refoulement. An unaccompanied minor could also be transferred to a third country to apply for protection, but this time only as part of a transit or family link.
In its ‘STC’ text of 29 September, the Danish Presidency clarifies a number of passages relating to compliance with Court of Justice rulings and redefines the concept of ‘transit’.
It also specifies in the recitals the possibilities for applying or not applying the connection criterion. Member States should retain the possibility of applying the concept of ‘safe third country’ on the basis of a link justifying the applicant’s travel to that third country. “While taking fully into consideration the parameters outlined in the case law of the Court of Justice of the European Union, Member States should be able to apply the ‘safe third country’ concept on the basis of a connection defined in conformity with national law or practice, insofar as specifically defined therein”. When applying the concept of ‘safe third country’ as grounds for inadmissibility, the current regulation requires the existence of a connection between the applicant and the third country, on the basis of which it would be reasonable for the applicant to go to that country. “However, the existence of a connection between the applicant and the safe third country is not required by international refugee law, notably the Geneva Convention, or international human rights law, notably the European Convention on Human Rights. Therefore, Member States should have the possibility to apply the concept of ‘safe third country’ where no connection can be established between the applicant and the safe third country concerned”, the text states.
With regard to transit through a third country, this “could include the situation where an applicant has passed through, or stayed on, the territory of a third country on the way to the Union, or where the applicant has been at the border or in a transit zone of a third country, where he or she has had the possibility to request effective protection with the authorities of that country”.
Flexible arrangements. The text also adds flexibility to arrangements with third countries. “Due to a need to strengthen cooperation with third countries in addressing irregular migration to the Union, Member States should also have the possibility to apply the ‘safe third country’ concept on the basis of a legally binding agreement or a non-binding formal or informal arrangement, regardless of their formal designation, concluded with the third country concerned, provided that the agreement or arrangement contains provisions requiring the examination of the merits of any requests for effective protection made in that third country by applicants subject to the agreement or arrangement”.
And in order to avoid any non-compliance with Union law and to further enhance transparency, Member States “should be able, on a voluntary basis, to keep the Commission and other Member States informed of the progress of negotiations with a third country relating to agreements or arrangements authorised by this Regulation, before final agreement has been reached by the parties, including with a view to seek the Commission’s assessment as to the compatibility of the envisaged agreement or arrangement under negotiation with Union law”.
Safe countries of origin. The 29 September text clarifies certain aspects, such as the assessment of the situation of an EU candidate country leading to a decision by the Commission not to consider or no longer to consider it safe.
As a reminder, this revision of the APR should enable Member States to process asylum applications from people from countries deemed to be ‘safe’ more quickly, and therefore to refuse their request for protection in the EU. A list is associated with this amendment, including the official EU candidate countries as well as seven other countries: Kosovo, Egypt, India, Bangladesh, Colombia, Morocco and Tunisia.
This new compromise makes the procedures more flexible, in particular for notification by the Commission to the Member States of a change in the status of a country of origin. It also takes account of the Court’s rulings and the new rules set out in the APR on the fact that a country can remain a ‘safe country of origin’ even if certain categories of population are persecuted there or if conflicts exist in certain parts of its territory.
The designation by a legal act of a third country as a ‘safe third country’ or ‘safe country of origin’ at EU level can include “introducing exceptions to this designation for the specific parts of the country’s territory or the clearly identifiable categories of persons”.
For EU candidate countries, when assessing whether there exists a serious threat to a civilian’s life or person caused by indiscriminate violence in situations of international or internal armed conflict in a candidate State for accession to the Union, the Commission must also take into account the potential implications for the external relations of the Union and the Member States. “The Commission’s assessment that there exists a serious threat by reason of indiscriminate violence in situations of international or internal armed conflict should be approved by the Council before publication of a notice in the Official Journal of the European Union”.
Discussions on Frontex. This Tuesday 30 September, the advisers were also due to discuss the future of the Frontex Agency, which will have a new mandate in 2026.
According to a note dated 25 September, which is due to be amended ahead of the ‘Justice and Home Affairs’ Council on 14 October, the Danish Presidency wanted to sound out the EU27 on the future of the permanent contingent of 30,000 officers between now and 2029, with a view to improving its capacity to respond to challenges at the EU’s external borders: - Should Frontex focus solely on external borders and returns or also on limited secondary functions in support of external border management? - What changes (possibly legislative) would enable Frontex to have a stronger presence in third countries, particularly for return operations from one third country to another?
In addition to Frontex’ s role in returns from third countries to other third countries, which is not possible under the current regulation, some Member States have also suggested that Frontex could play a supporting role in the return hubs authorised by the ‘Returns’ regulation of 11 March, the provisional note states. (Original version in French by Solenn Paulic)