Proposed reform of the Safe Third Country concept

Background

The 2024 agreement on the Asylum Procedures Regulation (APR) in the Pact on Migration and Asylum included a review of the Safe Third Country (STC) concept due to disagreements among EU member states. The European Commission has completed the review and has proposed some amendments to the APR.

The proposed reform is another effort by the EU to outsource responsibility for refugees to countries outside the EU – even though many of these countries already host far more refugees than most EU member states. Some member states have been clamouring for these changes; others have doubts.

The STC concept is not part of international refugee law but it is already unfortunately part of EU asylum law. Instead of examining an asylum request, a member state applying the STC concept issues a negative decision, claiming that the person can receive protection in a third country. In theory, the person should then be deported to the supposedly safe country instead of receiving protection in Europe. The proposal aims to facilitate and encourage its use.

The proposed changes

A first change means that it would no longer be mandatory for there to be a connection – a meaningful link – between the person and the STC. Instead, as well as “effective protection” being available, one of three conditions needs to be in place: a connection OR transit across the country OR an agreement or arrangement with the country which includes an in-merits assessment of the protection request. However, in ECRE’s view, mere transit or an agreement/arrangement with a country does not make it a suitable place to send the person – the concept shouldn’t be used at all. If it is, at very least there should be a connection between the person and the country.

It should be noted that last year’s reform of EU asylum law already changed the definition of safety to make it easier to classify a country as an STC, even when it does not respect the 1951 Refugee Convention.

Allowing a choice for member states reflects their different views – some of them have insisted on the removal of the connection criterion whereas some believe it is important and, in the case of France, it is a constitutional requirement. By providing three options, inconsistency will result.

A second change is to further erode appeal rights – a theme that runs through EU asylum reforms. People who receive a negative decision – an inadmissibility decision – because they should be sent to an STC will no longer have the right to remain during the appeal.  This means they might be deported immediately to a place that is not actually safe. Although they can request to remain, in order to be effective an appeal needs to have automatic suspensive effect – according to both European courts.

The effect of these measures if they are accepted

Lack of access to asylum in Europe – it will be easier for EU member states to issue a rejection on the basis of inadmissibility, by claiming that the person can receive protection in a supposed STC. The threshold of safety has already been lowered by the APR; if the reform passes, a connection with the country will no longer be needed either.

These people are denied access to a full in-merits asylum procedure. This will happen even though the people are refugees and even when the third country is not actually safe. The first change means that it can happen even when they have no connection with the country and the second change means that they may be deported before the conclusion of the legal process.

As a result:

• More people will be deported to countries that are not safe in reality.
• More people will be stuck in limbo in Europe without access to an asylum procedure – third countries often refuse to accept people whose cases have been rejected as inadmissible by Europe. States must respect the Court of Justice of the EU’s judgment in case C-134/23 Elliniko Symvoulio which rules that rejections must not be issued when third countries are not re-admitting people.
• De-harmonisation will continue as member states will apply different rules on the connection criterion.
• Appeal rights will be further eroded by the removal of the automatic suspensive effect of the appeal. However, it should be noted that an applicant can request the right to remain and that a series of other guarantees in the APR and in EU primary law must be respected.
• The burden on courts will become heavier, as people will need to request the right to remain during the appeal rather than there being an automatic suspension of the deportation during the appeal process.

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