Documents considered by the Committee on 6 January 2016 - European Scrutiny Contents


13   A common EU list of safe countries of origin

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
Document detailsProposal for a Regulation establishing an 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, and amending Directive 2013/32/EU
Legal baseArticle 78(2)(d) TFEU; ordinary legislative procedure; QMV
DepartmentHome Office
Document Numbers(37090), 11845/15 + ADD 1, COM(15) 452

Summary and Committee's conclusions

13.1  The proposed Regulation would establish a common EU list of seven safe countries of origin to support the swift processing of applications for international protection which are likely to be unfounded. The list includes six Western Balkans countries — Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo, Montenegro and Serbia — plus Turkey. There is no provision for a common EU list under existing EU asylum law, set out in the 2013 Asylum Procedures Directive — the designation of a safe third country takes place at national level, based on an agreed set of criteria.

13.2  The proposed Regulation is subject to the UK's Title V (justice and home affairs) opt-in. As the UK does not participate in the 2013 Directive, the Government made clear that the UK would only be able to opt into the proposed Regulation if it were also to seek to opt into the Directive. The Government considered that any benefits from opting into the proposed Regulation would not outweigh the disadvantages of being bound by the 2013 Directive and indicated that it was therefore "not minded" to opt into the proposal.

13.3  In his latest letter, the Minister for Security and Immigration (James Brokenshire), confirms that the Government has decided not to opt into the proposed Regulation.

13.4  We thank the Minister for notifying us of the Government's decision not to opt into the proposed Regulation.

13.5  It is disappointing that the Minister has not responded to the questions we raised in our Sixth Report, agreed on 21 October 2015. These concern: the Government's view on the inclusion of Turkey in the common EU list of safe countries of origin; the implications of the Court of Appeal judgement in July 2015 suspending the UK's "detained fast-track procedures" (since the ability to apply these procedures was one of the reasons given by the Government for not participating in the 2013 Asylum Procedures Directive); the conferral of powers on the Commission temporarily to remove a country from the common EU list; and whether the Government consulted the Devolved Administrations on the proposed Regulation.

13.6  Until the Minister provides the information requested, the proposed Regulation will remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents: Proposal for a Regulation establishing an 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, and amending Directive 2013/32/EU: (37090), 11845/15 + ADD 1, COM(15) 452.

Background

13.7  Under the 2013 Directive, a third country may be designated as safe if it can be shown that "there is generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU[92], 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". This assessment is based on "the legal situation, the application of the law within a democratic system and the general political circumstances", and must take into account:

·  the content of relevant laws and regulations, and how they are applied;

·  observance of the rights and freedoms contained in relevant international instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant for Civil and Political Rights and the United Nations Convention against Torture;

·  respect for the principle of non-refoulement; and

·  the availability of a system of effective remedies against violations of the protected rights and freedoms.[93]

13.8  The 2013 Directive requires Member States to ensure that there is an individual assessment of every claim for international protection, but envisages that fast-track or border procedures may be applied in cases where the applicant originates from a safe third country. It also creates a presumption that a claim is unlikely to be well-founded unless the applicant is able to demonstrate that there are "serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection".[94]

13.9  Whilst establishing common criteria for the designation of safe countries of origin, the 2013 Directive does not make provision for a common list of safe third countries to be established at EU level. Instead, it is for Member States to determine at national level whether to designate a third country as safe and to notify the Commission of any such designations.

13.10  Twelve Member States, including the UK, maintain national lists of third countries considered to be safe; others apply the safe country of origin concept on a case-by-case basis. The number and identity of countries included in national lists varies considerably.[95]

13.11  We considered the proposed Regulation at our meeting on 21 October. We suggested that the inclusion of Turkey as a safe country of origin was an anomaly — it does not feature in the UK's list of designated safe countries of origin — and asked the Government to confirm that it would support other Member States pressing for the removal of Turkey from the common EU list.

13.12  We noted that the Government was "not minded" to opt into the proposal, since a decision to opt in would also have to be accompanied by an application to participate in the 2013 Asylum Procedures Directive. The Government's concerns with this Directive appeared to stem primarily from its potential impact on the UK's "detained fast-track" procedures which have been suspended following a judgment of the Court of Appeal in July which concluded that the fast-track rules were "systemically unfair and unjust".[96] We asked whether the Court's ruling had altered the Government's calculation of the balance of benefits and disadvantages associated with UK participation in the 2013 Directive, since (based on the information provided in the Government's Explanatory Memorandum) this would appear to be the determining factor in reaching an opt-in decision on the proposed Regulation. We added that, as both instruments constitute a package, we did not consider that it would be appropriate to express a view on opting into the proposed Regulation in isolation from a wider consideration of possible UK participation in the 2013 Directive.

13.13  Finally, we sought the Government's view on the proposed use of delegated acts to enable the Commission, temporarily, to remove a country from the common EU list of safe countries of origin. We also asked whether the Devolved Administrations had been consulted on the proposed Regulation given that the Government's Explanatory Memorandum provided contradictory information.

The Minister's letter of 14 December 2015

13.14  The Immigration Minister confirms that the Government has decided not to opt into the proposed Regulation on the grounds that there would be "little benefit to the UK from opting in to a common list of safe third countries due to our long standing national list and the need to opt in to the 2013 Asylum Procedures Directive". He continues:

"The Government does see the merit in establishing an EU wide safe third country list, especially for those Member States who have no experience of operating such a list. However, the UK has successfully operated its own list for many years and already has established procedures and safeguards in place, including Parliamentary approval before a country is designated. Opting in would also require the UK to opt into the underlying 2013 Asylum Procedures Directive. The UK originally did not opt in to this Directive as it was deemed not to be in the national interest due to implications for immigration control and the integrity of UK legal systems. Those reasons remain valid and we see no advantage in opting in to this measure."

13.15  The Minister does not expect the proposed Regulation to be adopted "until the New Year" and undertakes to keep Parliament informed of developments.

Previous Committee Reports

Sixth Report HC 342-vi (2015-16), chapter 8 (21 October 2015).


92   Directive 2011/95/EU establishes common standards for determining who qualifies for international protection. Article 9 defines an "act of persecution" within the meaning of the 1951 Geneva Convention relating to the status of refugees. Back

93   See Annex 1 to Directive 2013/32/EU on common procedures for granting and withdrawing international protection. Back

94   See Article 36 of Directive 2013/32/EU. Back

95   See the table of safe countries of origin produced by the European Commission. Back

96   See the Court of Appeal's judgment in Lord Chancellor v Detention ActionBack


 
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Prepared 15 January 2016