Explanatory Memorandum to COM(2015)452 - EU common list of safe countries of origin for the purposes of Directive 2013/32/EU on common procedures for granting and withdrawing international protection

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dossier COM(2015)452 - EU common list of safe countries of origin for the purposes of Directive 2013/32/EU on common procedures for granting and ...
source COM(2015)452 EN
date 09-09-2015


1. CONTEXT OF THE PROPOSAL

1.1.Reasons for and objectives of the proposal

• Establishment of an EU common list of safe countries of origin

The European Commission presented a comprehensive European Agenda on Migration on 13 May 2015 1 , outlining, in addition to the immediate measures proposed shortly thereafter by the Commission to respond to the crisis situation in the Mediterranean, further initiatives that need to be taken to provide structural solutions for better managing migration in all its aspects. As part of the structural initiatives considered and in light of the current unprecedented pressure on Member States’ asylum systems, the Commission stressed the need to have a more effective approach to abuses and indicated its intention to strengthen the safe country of origin provisions of Directive 2013/32/EU on common procedures for granting and withdrawing international protection (hereinafter “Directive 2013/32/EU”) in order to support the swift processing of asylum applications from persons originating from countries designated as safe. As underlined by the European Council in its conclusions of 25 and 26 June 2015, this includes the establishment of an EU common list of safe countries of origin.

Directive 2013/32/EU enables Member States to apply specific procedural rules, in particular accelerated and border procedures, where the applicant is a national of a country (or a stateless person in relation to a third country of former habitual residence) that has been designated as safe country of origin by national law and that, in addition, may be considered as safe for the applicant in light of his or her particular circumstances. Only some Member States have adopted national lists of safe countries of origin. In addition these national lists present some divergences that could result from differences in the assessment of the safety of certain third countries or from differences in the nature of the flows of third country nationals that the Member States are facing.

Contents

1.

Directive 2013/32/EU sets out common criteria for the designation of safe third countries of origin by the Member States in its Annex I, which provides the following:


“A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU 2 , no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

2.

In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by:


(a) the relevant laws and regulations of the country and the manner in which they are applied;

(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;

(c) respect for the non-refoulement principle in accordance with the Geneva Convention;

3.

(d) provision for a system of effective remedies against violations of those rights and freedoms.”


Currently EU law does not contain an EU common list of safe countries of origin. The present proposal aims at establishing such a EU common list, on the basis of the common criteria set in Directive 2013/32/EU, as it will facilitate the use by all Member States of the procedures linked to the application of the safe country of origin concept and, thereby, to increase the overall efficiency of their asylum systems as concerns applications for international protection which are likely to be unfounded. An EU common list will also reduce the existing divergences between Member States’ national lists of safe countries of origin, thereby facilitating convergence in the procedures and deterring secondary movements of applicants for international protection.

• Third countries to be included in the EU common list of safe countries of origin

On the basis of all relevant information at its disposal, in particular reporting from the European External Action Service (EEAS) and the information from Member States, the European Asylum Support Office (EASO), the Council of Europe, the United Nations High Commissioner for Refugees (UNHCR) and other relevant international organisations, the European Commission has come to the conclusion that Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo* 3 , Montenegro, Serbia and Turkey are safe countries of origin within the meaning of Directive 2013/32/EU and should be included in the EU common list of safe countries of origin.

The European Commission used in particular reports from the EEAS, including dedicated country-specific reports of 31 August and 1 September 2015, information from Member States, including national legislation on the designation of safe countries of origin, information from EASO, including written reports and the outcome of a coordination meeting on safe countries of origin with Member State experts of 2 September 2015, as well as publicly available information from the Council of Europe, the UNHCR and other relevant international organisations.

As regards Albania, the legal basis for protection against persecution and mistreatment is adequately provided by substantive and procedural human rights and anti-discrimination legislation, including membership of all major international human rights treaties. There are no indications of any incidents of refoulement of its own citizens. Isolated cases of blood feud, domestic violence, and discrimination or violence against individuals belonging to ethnic minorities or vulnerable groups of persons, including Roma, Balkan Egyptians, and LGBTI 4 , still occur in individual cases. Albania's membership of the European Convention on Human Rights entails that the possibility of recourse to the European Court of Human Rights is a safeguard guaranteeing effectiveness of the system of remedies against such human rights violations. In 2014, the European Court of Human Rights found violations in four out of 150 applications. In 2014, Member States considered that 7,8% (1040) of asylum applications of citizens from Albania were well-founded. At least eight Member States have designated Albania as a safe country of origin. Albania has been designated as a candidate country by the European Council. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that Albania is a safe country of origin within the meaning of Directive 2013/32/EU.

As regards Bosnia and Herzegovina, its Constitution provides the basis for the sharing of powers between the country's constituent peoples. The legal basis for protection against persecution and mistreatment is adequately provided by substantive and procedural human rights and anti-discrimination legislation, including membership of all major international human rights treaties. There are no indications of any incidents of refoulement of its own citizens. Discrimination or violence against individuals on ethnic or religious grounds or because of their political opinion as well as against individuals belonging to vulnerable groups such as LGBTI, journalists, and children still occurs in individual cases. Bosnia and Herzegovina's membership of the European Convention on Human Rights entails that the possibility of recourse to the European Court of Human Rights is a safeguard guaranteeing effectiveness of the system of remedies against such human rights violations. In 2014, the European Court of Human Rights found violations in five out of 1196 applications. In 2014, Member States considered that 4,6% (330) of asylum applications of citizens from Bosnia and Herzegovina were well-founded. At least nine Member States have designated Bosnia and Herzegovina as a safe country of origin. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that Bosnia and Herzegovina is a safe country of origin within the meaning of Directive 2013/32/EU.

As regards the former Yugoslav Republic of Macedonia, the legal basis for protection against persecution and mistreatment is adequately provided for by substantive and procedural human rights and anti-discrimination legislation, including membership of all major international human rights treaties. There are no indications of any incidents of refoulement of its own citizens. Isolated cases of discrimination or violence against individuals belonging to vulnerable groups of persons, including children, disabled persons, Roma and LGBTI, still occur. The former Yugoslav Republic of Macedonia's membership of the European Convention on Human Rights entails that the possibility of recourse to the European Court of Human Rights is a safeguard guaranteeing effectiveness of the system of remedies against such human rights violations. In 2014, the European Court of Human Rights found violations in six out of 502 applications. In 2014, Member States considered that 0,9% (70) of asylum applications of citizens of the former Yugoslav Republic of Macedonia were well-founded. At least seven Member States have designated the former Yugoslav Republic of Macedonia as a safe country of origin. The former Yugoslav Republic of Macedonia has been designated as a candidate country by the European Council. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that the former Yugoslav Republic of Macedonia is a safe country of origin within the meaning of Directive 2013/32/EU.

As regards Kosovo*, the legal basis for protection against persecution and mistreatment is adequately provided by substantive and procedural human rights and anti-discrimination legislation. The non-accession of Kosovo* to relevant international human rights instruments such as the ECHR results from the lack of international consensus regarding its status as a sovereign State. There are no indications of any incidents of refoulement of its own citizens. Discrimination or violence against individuals belonging to vulnerable groups of persons such as women, LGBTI and persons belonging to ethnic minorities, including ethnic Serbs, still occurs in individual cases. In 2014, Member States considered that 6,3% (830) of asylum applications of citizens of Kosovo* were well-founded. At least six Member States have designated Kosovo* as a safe country of origin. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that Kosovo* is a safe country of origin within the meaning of Directive 2013/32/EU.

As regards Montenegro, the legal basis for protection against persecution and mistreatment is adequately provided by substantive and procedural human rights and anti-discrimination legislation, including membership of all major international human rights treaties. There are no indications of any incidents of refoulement of its own citizens. Discrimination or violence against individuals belonging to vulnerable groups of persons, including disabled persons, journalists, Roma and LGBTI, still occurs. Montenegro's membership of the European Convention on Human Rights entails that the possibility of recourse to the European Court of Human Rights is a safeguard guaranteeing effectiveness of the system of remedies against such human rights violations. In 2014, the European Court of Human Rights found violations in 1 out of 447 applications. In 2014, Member States considered that 3,0 % (40) of asylum applications of citizens of Montenegro were well-founded. At least nine Member States have designated Montenegro as a safe country of origin. Montenegro has been designated as a candidate country by the European Council and negotiations have been opened. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that Montenegro is a safe country of origin within the meaning of Directive 2013/32/EU.

As regards Serbia, the Constitution provides the basis for self-governance of minority groups in the areas of education, use of language, information and culture. The legal basis for protection against persecution and mistreatment is adequately provided by substantive and procedural human rights and anti-discrimination legislation, including membership of all major international human rights treaties. There are no indications of any incidents of refoulement of its own citizens. Discrimination against individuals belonging to vulnerable groups of persons, including ethnic minorities, including ethnic Albanians, religious minorities, including Muslims, Roma and LGBTI, still occurs. Serbia's membership of the European Convention on Human Rights entails that the possibility of recourse to the European Court of Human Rights is a safeguard guaranteeing effectiveness of the system of remedies against such human rights violations. In 2014, the European Court of Human Rights found violations in 16 out of 11 490 applications. In 2014, Member States considered that 1,8% (400) of asylum applications of citizens from Serbia were well-founded. At least nine Member States have designated Serbia as a safe country of origin. Serbia has been designated as a candidate country by the European Council and negotiations have been opened. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that Serbia is a safe country of origin within the meaning of Directive 2013/32/EU.

As regards Turkey, the legal basis for protection against persecution and mistreatment is adequately provided by substantive and procedural human rights and anti-discrimination legislation, including membership of all major international human rights treaties. There are no indications of any incidents of refoulement of its own citizens. Discrimination and human rights violations of persons belonging to vulnerable groups such as minorities, including ethnic Kurds, journalists and LGBTI still occur. Turkey's membership of the European Convention on Human Rights entails that the possibility of recourse to the European Court of Human Rights is a safeguard guaranteeing effectiveness of the system of remedies against such human rights violations. In 2014, the European Court of Human Rights found violations in 94 out of 2899 applications. In 2014, Member States considered that 23,1 % (310) of asylum applications of citizens of Turkey were well-founded. One Member State has designated Turkey as a safe country of origin. Turkey has been designated as a candidate country by the European Council and negotiations have been opened. Particular attention should be paid by Member States to the above-mentioned circumstances when determining whether a third country included in the EU common list of safe countries of origin is considered as a safe country of origin for a particular applicant as well as during the examination of an application using the procedural facilities provided for in Directive 2013/32/EU in relation to applicants from a safe country of origin. On this basis, the Commission concludes that Turkey is a safe country of origin within the meaning of Directive 2013/32/EU.

This proposal should be seen as the first step towards the objective of establishing a comprehensive common list of safe countries of origin at Union level. The Commission may therefore propose the inclusion of further third countries, fulfilling the criteria to be designated as safe, on the EU common list once adopted by the European Parliament and the Council. Priority will be given to third countries from which originate a significant number of applicants for international protection in the EU such as Bangladesh, Pakistan, and Senegal.

As indicated in this proposal, the Commission would present a report after a period of three years following the entry into force of the Regulation if adopted by the European Parliament and of the Council, on the possibility to take further steps of harmonisation that could lead to the elimination of the need for national lists of safe countries of origin.

1.2.Consistency with existing policy provisions in the policy area

This proposal is consistent with the common procedures for granting and withdrawing international protection established by Directive 2013/32/EU and with the other instruments of the Common European Asylum System.

1.3.Consistency with other Union policies

The proposal to establish an EU common list of safe countries of origin and to include, in particular, on such a list third countries that have been designated as candidate country by the European Council is consistent with the Union enlargement policy. When Albania, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Turkey were designated as candidate countries by the European Council, the assessment was that they fulfilled the criteria established by the Copenhagen European Council of 21-22 June 1993 relating to stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities and they will have to continue to fulfil these criteria for becoming a member. Progress in fulfilling the political and economic criteria as well as the alignment with the acquis is assessed every year in the Annual Progress Report of the European Commission. The present proposal to include Albania, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Turkey in the EU common list of safe countries of origin is without prejudice to the upcoming Annual Progress Reports to be presented by the European Commission regarding each of these third countries.

2. CONSULTATION OF INTERESTED PARTIES

The European Council in its conclusions of 25 and 26 June 2015 referred, in relation to the need to accelerate the treatment of asylum applications, to the intention of the Commission to strengthen the safe countries of origin provisions of Directive 2013/32/EU, including the possible establishment of an EU common list of safe countries of origin.

The Justice and Home Affairs Council in its conclusions on safe countries of origin of 20 July 2015 welcomed the possible establishment of an EU common list of safe countries of origin. The Council noted 'with regards to the Western Balkans countries that a majority of national lists of safe countries of origin include these countries, that the European Council reiterated on numerous occasions their European perspective and that Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Montenegro and Serbia were transferred to the list of countries whose nationals are exempt from the visa requirement as of 19 December 2009 and 15 December 2010 respectively. Moreover, the EU-wide average asylum recognition rate for the Western Balkans countries was rather low in 2014. This suggests that the Western Balkans countries could be considered as safe countries of origin by all the Member States.'

Following the Justice and Home Affairs Council conclusions, EASO organised on 2 September 2015 an expert-level meeting with the Member States where a broad consensus was reached that Albania, Bosnia and Herzegovina, Kosovo* , the former Yugoslav Republic of Macedonia, Montenegro and Serbia should be considered as safe countries of origin within the meaning Directive 2013/32/EU.

3. LEGAL BASIS, SUBSIDIARITY, PROPORTIONALITY, FUNDAMENTAL RIGHTS

3.1.Legal basis

The proposal is based on Article 78(2)(d) of the Treaty on the Functioning of the European Union (TFEU), which is the legal basis for measures on common procedures for the granting and withdrawing of uniform asylum and subsidiary protection status. The proposal aims at establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU and at amending this Directive, which was adopted on the basis of Article 78(2)(d) TFEU.

3.2.Subsidiarity

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.

The proposal aims at establishing a common list of safe countries of origin at Union level as it will facilitate the use by all Member States of the procedures linked to the application of the safe country of origin concept. The proposal also aims at addressing some of the existing divergences between Member States’ national lists of safe countries of origin, as a result of which applicants for international protection originating from the same third countries are not always subject to the same procedures in the Member States. The overall objective of the proposed action is not sufficiently achieved by the Member States and can be better achieved by the European Union.

3.3.Proportionality

In accordance with the principle of proportionality, the proposed modifications of the existing legislative framework do not go beyond what is necessary to achieve the objective set. The EU common list of safe countries of origin will be established in accordance with the criteria already set by Directive 2013/32/EU for the designation of safe countries of origin, and there will be a regular review of the countries on the common list. As for the proposed amendments of Directive 2013/32/EU there are limited to what is necessary to ensure that the provisions of Directive 2013/32/EU related to the application of the safe country of origin concept are applicable to the third countries on the EU common list of safe countries of origin.

3.4.Choice of the instrument

The choice of a Regulation for establishing an EU common list of safe countries of origin is justified by the nature of such a common list, which is established at Union level and should be directly applicable in the legal orders of the Member States.

3.5.Fundamental rights

This proposal respects the fundamental rights and observes the principles recognized by the Charter, including the right to asylum and protection against refoulement as provided for in Articles 18 and 19 of the Charter.

In particular it is recalled that, in line with Directive 2013/32/EU, the circumstance that a third country will be on the EU common list of safe countries of origin cannot establish an absolute guarantee of safety for nationals of that country and will not dispense therefore with the need to conduct an appropriate individual examination of their applications for international protection. It is also recalled that, where an applicant shows that there are serious reasons to consider the country not to be safe in his or her particular circumstances, the designation of the country as safe can no longer be considered relevant for him or her.

The third countries for which the inclusion on the EU common list of safe countries of origin is proposed fulfil the conditions set by Directive 2013/32/EU for being designated as safe. This implies that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there are in these countries generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

4. BUDGETARY IMPLICATIONS

The proposal entails no implication for the EU budget and should have no budgetary implications for the Member States.

5. OTHER ELEMENTS

5.1.Monitoring, evaluation and reporting arrangements

The proposal foresees that the possibility to take in the future further steps of harmonisation that could lead to the elimination of the need for national lists of safe countries of origin should be considered after a period of three years following the entry into force of this Regulation, on the basis of a report to be presented by the Commission.

5.2.Detailed explanation of the specific provisions of the proposal

The proposal for a Regulation establishes an EU common list of third countries which shall be regarded as safe countries of origin within the meaning of Directive 2013/32/EU. It also amends Directive 2013/32 in order to enable the application of the safe country of origin provisions of this Directive in relation to the third countries included in the EU common list.

The EU common list of safe countries of origin is to be set out in Annex I of the proposed Regulation. Third countries to be included in this Annex shall fulfil the conditions set in Annex I of Directive 2013/32/EU for the designation of safe countries of origin. The Commission considers that Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Kosovo*, Montenegro, Serbia and Turkey fulfil these conditions and should, as a first step, be included in the EU common list.

The proposal provides for an obligation for the Commission to regularly review the situation in third countries that are on the EU common list, based on a range of sources of information, including in particular regular reporting from the EEAS and information from Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations.

The proposal provides that any amendment of the EU common list of safe countries of origin shall be adopted in accordance with the ordinary legislative procedure. However, it is foreseen that, in case of sudden changes for the worse in the situation of a third country on this list, the Commission shall be empowered to adopt a delegated act in accordance with Article 290 TFUE to suspend, for a period of one year, the presence of the third country from the list where it considers, on the basis of a substantiated assessment, that the conditions for regarding a third country as safe country of origin are no longer met. The Commission would be able to extend the suspension for a period of maximum one year, where it has proposed an amendment to the Regulation in order to remove this third country from the EU common list of safe countries of origin. The proposal contains detailed provisions on the conditions of the delegation of power to the Commission, including regarding its duration, the possibility for the European Parliament and the Council to revoke it at any time, the obligation for the Commission to notify the adoption of delegated acts to the European Parliament and to the Council and the fact that the delegated acts can only enter into force if no objection has been raised by these institutions within one month following this notification.