13 October 2015

ECRE has published comments on the European Commission’s proposal for a Regulation establishing a common EU list of safe countries of origin and amending the recast Asylum Procedures Directive.

ECRE seriously questions the compatibility of the safe country of origin concept with international refugee law, as it is at odds with the obligation on states under the 1951 Refugee Convention to treat refugees without discrimination based on their country of origin. The use of safe country lists, whether nationally designated or at EU level, further contributes to a practice of stereotyping certain applications on the basis of their nationality and increases the risk of such applications not being subject to a thorough examination of a person’s fear for persecution or risk of serious harm on an individual basis, which is at the core of the refugee definition and crucial to ensuring full respect for the principle of non-refoulement. Furthermore, the application of a presumption of safety, while rebuttable under EU law, in practice often places an almost insurmountable burden of proof on the applicant, which is exacerbated by the lack of access to quality legal assistance in many Member States.

In that regard, ECRE is opposed to the adoption of a common EU list of safe countries of origin as proposed by the Commission, as it is part of a worrying development in EU asylum law to increasingly assume a negative outcome of an asylum procedure on the basis of the nationality or profile of the applicant as being manifestly unfounded prior to a proper examination of the application. The proposed Regulation raises important protection concerns and may result in a “race to the bottom” as regards procedural safeguards, while the added value of the proposal from a harmonisation perspective is likely to be very minimal.

However, if the proposal is to be adopted, the comments paper suggests to further amend the Regulation and the recast Asylum Procedures Directive to:

  • Ensure that asylum seekers originating from a country presumed safe have access to an appeal with automatic suspensive effect, by amending Article 46(6) of the recast Asylum Procedures Directive;
  • Strengthen the mechanism to suspend countries from the common list by requiring that the Commission’s substantiated assessment is informed by all sources of information, including from NGOs and the expert opinion of UNHCR in particular; and
  • Delete references to some of the indicators used by the Commission, such as membership of the Council of Europe and status as an EU accession country, to argue the inclusion of the seven countries in the common list as they are not conducive to evidence the observance of human rights in those countries.

ECRE also expresses concern as to the limited possibility for individual asylum seekers to challenge the EU common list, given the restrictive conditions for standing before the Court of Justice of the European Union (CJEU) to challenge EU legislative acts. As Member States, the Commission, Council and European Parliament have unfettered standing before the Court to request a review of the Regulation and annulment of provisions contravening EU law, ECRE calls on the aforementioned actors to make use of their powers where the common list, if adopted, is liable to infringe EU law.

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This article originally appeared in the Asylum Information database (AIDA).