International Journal of Refugee Law, 2016, Vol. 28, No. 4, 601–622
doi:10.1093/ijrl/eew042
Safe Country? Says Who?
Cathryn Costello*
A B ST R A CT
In 1991, Professor Guy S Goodwin-Gill reflected on the emerging safe country of origin (SCO) practices in an editorial in the International Journal of Refugee Law, entitled
‘Safe Country? Says Who?’. This article reflects on developments regarding SCO practices
since his prescient editorial, focusing on both Europe, where they originated, and Canada.
The article first explores how SCO practices have developed in European law and practice since their inception, including the role of European courts in assessing their legality.
This European experience is then contrasted with Canada’s short-lived experiment with
its analogous Designated Country of Origin (DCO) system, which, in 2015, was deemed
unconstitutional by the Federal Court of Canada.
1. I N T RO D U CT I O N
The scholarship and advocacy of Professor Guy S Goodwin-Gill displays a brilliance,
insight, and rigour that any academic would envy. He has always looked to the principles of international legality to find better routes to protection. Yet, he is no dogmatist,
and his vision is also mindful of political realities and the need to adapt to new circumstances. Having re-read much of his scholarship, starting with his first monograph,
International Law and the Movement of Persons between States,1 this article evokes a less
substantial piece but, nonetheless, one that is characteristically insightful and incisive, namely one of Goodwin-Gill’s many pithy, somewhat acerbic, editorials for the
International Journal of Refugee Law.
In 1991, Goodwin-Gill reflected on the emerging safe country of origin (SCO)
practices in an editorial, entitled ‘Safe Country? Says Who?’.2 This article, 25 years later,
is inspired by that editorial and uses it to reflect on how these practices have developed,
both in Europe, where they originated, and also in Canada. The discussion is framed
around the transatlantic political and legal dialogue on asylum practices between the
*
1
2
Andrew W Mellon Associate Professor in International Human Rights and Refugee Law, Refugee
Studies Centre and Faculty of Law, University of Oxford. The author thanks Emma Dunlop for
her research and editorial assistance, and Minos Mouzourakis for his most helpful suggestions.
All errors remain the author’s own.
GS Goodwin-Gill, International Law and the Movement of Persons between States (Clarendon Press
1978).
GS Goodwin-Gill, ‘Safe Country? Says Who?’ (1992) 4 IJRL 248.
© The Author (2016). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.
[email protected]
• 601
602 • Safe Country? Says Who?
EU and Canada. Like many restrictive asylum policies, European SCO practices have
been emulated beyond Europe.3 In this particular instance, in 2015, the Canadian
courts struck down the Canadian version of SCO: the Designated Country of Origin
(DCO) system.4 Courts on both continents have grappled with whether safe country
practices are legal and fair, with some strikingly different outcomes.
Goodwin-Gill’s editorial opened with an acknowledgment that, ‘[t]he struggle to
deal with increasing numbers of asylum-seekers, all of whom seem to have a valid claim
to individual case-by-case determination, continues to produce a flurry of desperate
measures’.5 Plus ça change! It went on to reflect on the risks inherent in safe country
practices, the institutional dimension, and the flipside – that if governments are keen to
make presumptions that countries are safe, they should also be pressed to consider presumptions in favour of refugeehood. The editorial confronted our ‘highly individualized sense of human rights’6 and suggested that the recognition of strong asylum claims
on a group basis could be appropriate.
SCO practices usually entail an instruction from one arm of government (generally
the legislature and then the executive, under delegated power) to another (the administrative asylum adjudicator) to treat claims from certain countries in a certain way. SCO
practices have implications for the decisional autonomy of asylum adjudicators, an
important but often under-studied aspect of asylum practice. Usually, the consequence
of designating a country as ‘safe’ is to set up a presumption that the applicant is not a
refugee, or at least to reduce the procedural safeguards in the process for assessing the
claim. Tinkering with procedures may, in turn, undermine the ability to rebut any formal or informal presumption that the person does not warrant recognition as a refugee.
Some procedural restrictions are in themselves a violation of human rights or principles of effective protection of rights.7 Moreover, designations may be self-perpetuating,
if they lead to rejection of claims from particular countries, apparently validating the
safety of the countries, but actually masking the rejection of strong claims, and possibly
leading to refoulement.
The institutional relationship between the adjudicator, the courts, and what this
article will call (for want of a better term) ‘politics’, varies across States, even within the
EU. In most countries, first instance asylum adjudicators are part of the executive, but
they usually enjoy some degree of institutional autonomy. Some national authorities
3
4
5
6
7
H Lambert, J McAdam, and M Fullerton (eds), The Global Reach of European Refugee Law (CUP
2013), in particular, A Macklin, ‘A Safe Country to Emulate? Canada and the European Refugee’
ch 4, 99.
YZ and the Canadian Association of Refugee Lawyers v Minister for Citizenship and Immigration
2015 FC 892. The author provided an expert affidavit in the litigation, some of the contents of
which are reflected in this contribution.
Goodwin-Gill (n 2) 248.
ibid 249.
In some instances, these procedural restrictions may violate EU and human rights law. See generally, M Reneman, ‘Speedy Asylum Procedures in the EU: Striking a Fair Balance Between the
Need to Process Asylum Cases Efficiently and the Asylum Applicant’s EU Right to an Effective
Remedy’ (2013) 25 IJRL 717; M Reneman, EU Asylum Procedures and the Right to an Effective
Remedy (Hart Publishing 2014).
Safe Country? Says Who? • 603
are fairly autonomous independent agencies, such as the Office français de protection
des réfugiés et apatrides (OFPRA) in France.8 Elsewhere, first instance adjudicators are
regular interior ministry officials, albeit supervised by specialist asylum tribunals. SCO
systems are often a manifestation of political interference with the institutional autonomy of adjudicators. It should be borne in mind that the degree of decisional autonomy
of asylum authorities varies greatly from country to country. As Hamlin recently demonstrated, with regard to the US, Canada, and Australia, institutional autonomy is one
of the main explanatory factors for the divergence in outcomes of similar asylum claims
in those States.9
Goodwin-Gill’s 1991 editorial was already alive to this phenomenon. He noted
the tendency for political practices to be opaque, if not shady. Twice in the editorial,
he observed the tendency towards secrecy of executive power (‘Secret men in secret
rooms reading secret memos …’10) and, notably, rejected it: ‘There is no room here, and
no need, for “confidential information”, whose seductiveness owes more to some male
thing about secret societies, than to any concern with accuracy.’11 He maintained that
generalized assessments of safety could and should be based on ‘international standards’ to ensure ‘rational and defensible assessments of risk’ with ‘openness in assessment and transparency in gathering the facts relating to the causes of movement and
conditions in countries of origin’.12 This article considers whether contemporary criteria and processes for designating countries safe meet the standards of rationality and
transparency espoused.
However, as Goodwin-Gill’s editorial suggested, there may be another side to the
coin, where efficiency supports the use of presumptions to ensure the swift recognition
of strong claims. It noted that, while human rights safeguards apply if claims are to be
rejected, the same concerns do not apply with regard to the recognition of claims from
countries that can be assumed to be unsafe. However, as will be seen, this flipside is
less prevalent in practice, and the political economy of asylum policy making tends to
lead to great resources being spent rejecting claims, rather than on swift recognition of
strong ones.
In part 2, this article explores how SCO practices have developed in European law
and practice since their inception, when Goodwin-Gill wrote his editorial. Part 3 considers the role of the courts in Europe in assessing SCO practices. Part 4 contrasts this
European experience with Canada’s short-lived experiment with its analogous DCO
system, which was deemed unconstitutional in 2015.
8
9
10
11
12
‘Created in 1952, OFPRA is a public institution endowed with legal personality as well as financial and administrative autonomy’: see R Gibb and A Good, ‘Do the Facts Speak for Themselves?
Country of Origin Information in French and British Refugee Status Determination Procedures’
(2013) 25 IJRL 291, 295.
R Hamlin, Let Me Be a Refugee – Administrative Justice and the Politics of Asylum in the United
States, Canada and Australia (OUP 2014); R Hamlin, ‘International Law and Administrative
Insulation: A Comparison of Refugee Status Determination Regimes in the United States,
Canada, and Australia’ (2012) 37 Law & Social Inquiry 933.
Goodwin-Gill (n 2) 249.
ibid 250.
ibid 249–50.
604 • Safe Country? Says Who?
The article suggests that, as is apparent in Goodwin-Gill’s editorial, the ‘says who?’
issue is all-important. It points to the tensions between various arms of government,
the degree of decisional autonomy enjoyed by adjudicators, and the role of the courts.
Finally, it draws together some insights from diverse experiences, and suggests that
more attention to institutional context is warranted, in particular, in the EU. EU asylum policy making wrongly assumes that shared legislative standards will lead to convergent outcomes in asylum cases. Recent political science studies by Hamlin13 and
Engelmann14 on asylum decision making prove useful, providing important insights
into the relationship between legal standards, practical convergence, and divergence
in asylum cases. This scholarship warrants greater attention from legal scholars, as it
speaks directly to the relationship between adjudicators, politics, and the law.
Returning to SCO practices at this juncture is timely for two main reasons. First, in
2015, the European Commission again proposed a common EU list of SCOs and, controversially, included Turkey in that proposal.15 The human rights situation in Turkey
after the attempted coup of 15 July 2016 is, of course, deeply concerning,16 but the
repressive regime predates that event. Secondly, the Canadian DCO experience and
court ruling thereon provides a useful juxtaposition with that of Europe.
2. S CO P R A CT I C E S I N E U RO P E A N L AW A N D P O L I C Y
2.1 Origins of SCO
Safe country practices take many guises. There are two basic forms: safe country of origin (SCO) and safe third country (STC). This article focuses on the former. In theory,
the two concepts serve different functions. The first can demonstrate that claims are
13
14
15
16
Hamlin, 2014 and 2012 (n 9).
C Engelmann, ‘Common Standards via the Backdoor: The Domestic Impact of Asylum Policy
Coordination in the European Union’ (PhD Thesis 2015) <http://www.claudiaengelmann.
nl/wp-content/uploads/2015/02/E-book-Thesis-Claudia-Engelmann.pdf>; C Engelmann,
‘Convergence against the Odds: The Development of Safe Country of Origin Policies in EU
Member States’ (2014) 16 European Journal of Migration and Law 277.
Proposal for a Regulation of the European Parliament and of the Council establishing an
EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the
European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU COM(2015) 452, 9 Sept
2015. For analyses, see S Peers, ‘“Safe Countries of Origin”: Assessing the New Proposal’ (EU
Law Analysis, 14 Sept 2015) <http://eulawanalysis.blogspot.co.uk/2015/09/safe-countries-oforigin-assessing-new.html> accessed 17 July 2016; E Roman, T Baird, and T Radcliffe, ‘Analysis:
Why Turkey is Not a “Safe Country”’ (Statewatch, Feb 2016); ECRE, ‘“Safe Countries of Origin”:
A Safe Concept?’, AIDA Legal Briefing No 3 (Sept 2015); ECRE, ‘Comments on the Commission
Proposal for a Common EU List of Safe Countries of Origin’ (Oct 2015); Meijers Committee,
‘Note on an EU List of Safe Countries of Origin: Recommendations and Amendments’ (5 Oct
2015); FRA, ‘Opinion 1/2016 Concerning an EU Common List of Safe Countries of Origin’
(Mar 2016).
‘Turkey Coup Attempt: State of Emergency Announced’ (BBC News, 21 July 2016) <http://
www.bbc.co.uk/news/world-europe-36852080>.
Safe Country? Says Who? • 605
unfounded, whereas the second merely indicates that the claimant may find protection
elsewhere,17 thus, STC should only reflect on the admissibility of the asylum claim, not
its merits. However, as I observed when first writing about these practices over 10 years
ago, they quickly became unmoored from their original premises, with the two notions
of unfoundedness and inadmissibility often conflated.18
The origins of these safe country practices are European, having been introduced by
individual European States in the 1990s. Switzerland was the first to introduce a formal SCO practice, closely followed by Belgium. As has been well-demonstrated, these
concepts spread quickly – there are many fora in which national governments may
share their asylum practices and policies, such as the Intergovernmental Consultations
on Asylum and Migration.19 Informal horizontal policy dynamics ensured the quick
spread of these practices, long before they were formalized at the EU level. This spread
has now been well-documented.20 Even before any formal EU law-making dealt with
them, they were given political endorsement by the European Council (comprised of
heads of State and government) in the non-binding London Resolutions of 1992. The
three London Resolutions covered the topics of countries in which there is generally
no serious risk of persecution (that is, SCO); manifestly unfounded applications for
asylum; and a harmonized approach to questions concerning host third countries (that
is, STC).21 In 2002, the EU Council declared all candidate countries awaiting EU membership ‘safe’.22 This foreshadowed the Aznar Protocol to the Treaty of Amsterdam, in
which Member States effectively agreed to consider all EU Member States as SCOs.23
UNHCR’s Executive Committee considers that ‘notions such as “safe country of origin” ... should be appropriately applied so as not to result in improper denial of access
to asylum procedures, or to violations of the principle of non-refoulement’.24 It has taken
the view that SCO practices are permissible, provided that they are rooted in a proper
assessment of the country conditions and do not lead to the automatic rejection of
17
18
19
20
21
22
23
24
M Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek
Protection in Another State’ (2007) 28 Mich J Intl L 223.
C Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices:
Deterrence, Deflection and the Dismantling of International Protection?’ (2005) 7 European
Journal of Migration and Law 35.
Intergovernmental Consultations on Migration, Asylum and Refugees (IGC) include governments from Europe, North America, and Australia.
R Byrne and A Shacknove, ‘The Safe Country Notion in European Asylum Law’ (1996) 9 Harvard
Human Rights Journal 185; H Martenson and J McCarthy, ‘“In General, No Serious Risk of
Persecution”: Safe Country of Origin Practices in Nine European States’ (1998) 11 JRS 304.
Council of the European Union, Council Resolutions of 30 Nov 1992 (‘London Resolutions’).
Council Declaration by the Ministers of Justice and Home Affairs of the Member States of the
EU on Asylum on 15 Oct 2002. ‘Candidate country’ connotes countries formally admitted to the
process of becoming an EU Member State.
Protocol on Asylum for Nationals of Member States of the European Union, annexed to the consolidated version of the Treaty on the Functioning of the European Union.
UNHCR, Executive Committee General Conclusion on International Protection No 87(L) –
1999, para (j). For an example of the application of its views in practice, see UNHCR Submission
on Bill C-31 Protecting Canada’s Immigration System Act, May 2012.
606 • Safe Country? Says Who?
claims from designated countries. UNHCR’s approach has been to insist on safeguards,
rather than to condemn these practices outright. Moreover, while they remind States
of their obligations under article 3 of the 1951 Convention relating to the Status of
Refugees, that is, the non-discrimination guarantee, UNHCR has not argued that
SCO practices are invariably discriminatory.25 In contrast, there is some authoritative
opinion questioning the use of SCO mechanisms at all. For instance, the International
Commission of Jurists (ICJ) has expressed its opposition to SCOs in general.26
By the time the EU turned to formal law making on asylum procedures, safe country
practices had proliferated. The original Asylum Procedures Directive (Original PD)27
reflected that proliferation, and envisaged a procedure for agreeing a common EU list
of SCOs. However, the Court of Justice of the European Union (CJEU) invalidated
the mechanism for its adoption on institutional grounds.28 The EU has now adopted
recast versions of the EU asylum directives, agreed by co-decision of the Council and
European Parliament.29 The recasting process resulted in some improvements in the
protection standards, but the basic features of SCO remain the same. Notably, though,
the Recast Procedures Directive (Recast PD)30 did not seek to revive the idea of a common list. The Commission’s 2015 revival of that notion was part of a ‘flurry of desperate
measures’31 proposed to deal with the refugee crisis of 2015.
2.2 EU criteria for determining SCOs
In EU law:
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
25
26
27
28
29
30
31
Art 3 provides, ‘The Contracting States shall apply the provisions of this Convention to refugees
without discrimination as to race, religion or country of origin.’ Convention relating to the Status
of Refugees (adopted 28 July 1951, entered into force 22 Apr 1954) 189 UNTS 150.
International Commission of Jurists, ‘Compromising Rights and Procedures: ICJ Observations
on the 2011 Recast Proposal of the Procedure Directive’ (Sept 2011) para 74.
Council Directive 2005/85/EC of 1 Dec 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status OJ L236/13, 13 Dec 2005 (Original PD).
See CJEU Case C-133/06 European Parliament v Council of the European Union [2008] ECR
I-3189. See P Craig, ‘Case note on Case C-133/06’ (2009) 46 CML Rev 1265.
See further, F Ippolito and S Velluti, ‘The Recast Process of the EU Asylum System: a Balancing
Act between Efficiency and Fairness’ (2011) 30 RSQ 24.
Parliament and Council Directive 2013/32/EU of 26 June 2013 on common procedures
for granting and withdrawing international protection OJ L180/60, 29 June 2013 (Recast
PD). See C Costello and E Hancox, ‘The Recast Asylum Procedures Directive 2013/32/EU:
Caught between the Stereotypes of the Abusive Asylum-Seeker and the Vulnerable Refugee’ in
V Chetail, P De Bruycker, and F Maiani (eds), Reforming the Common European Asylum System:
The New European Refugee Law (Brill Nijhoff 2016) 377.
Goodwin-Gill (n 2) 248. See generally on the legal causes and responses to the mass arrivals of
2015, C Costello and M Mouzourakis, ‘The Common European Asylum System – Where Did it
All Go Wrong?’ in M Fletcher, E Herlin-Karnell, and C Matera (eds), The European Union as an
Area of Freedom, Security and Justice (Routledge 2016, forthcoming).
Safe Country? Says Who? • 607
no persecution as defined in Article 9 of [the Recast EU Qualification 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.32
To make this assessment, the Recast PD specifies the types of information to be used
to gauge the safety of the country. It requires examination of the relevant laws and
regulations of the country and their application; whether the rights and freedoms in
the European Convention on Human Rights (ECHR),33 the International Covenant
on Civil and Political Rights (ICCPR),34 or the Convention against Torture (CAT)35
are respected, particularly those rights in the ECHR which cannot be derogated from;
whether there is respect for the principle of non-refoulement; and whether there is a
system of effective remedies against violations of these rights and freedoms.36 Since the
Recast PD aims to establish common procedural standards, using alternative methods
or criteria for designating countries as safe may be incompatible with EU law. In particular, while the pertinent 1992 London Resolution included quantitative assessment
based on past recognition rates as part of the SCO analysis,37 this method is not catered
for explicitly under the Recast PD.
2.3 Process for determining SCOs
Although both versions of the PD had elaborate criteria to guide Member State assessment of SCOs, the measures did not address the ‘says who?’ issue, save for stipulating that the assessment ‘shall be based on a range of sources of information, including
in particular information from other Member States, the European Asylum Support
Office (EASO), UNHCR, the Council of Europe and other relevant international
organisations’.38 Notably, applying this criterion, the French Conseil d’Etat annulled the
inclusion of Kosovo on the French SCO list in 2014, for failure to consider an appropriate range of sources.39
32
33
34
35
36
37
38
39
Recast PD (n 30) Annex I (formerly, Annex II Original PD).
European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted
4 Nov 1950, entered into force 3 Sept 1953) 213 UNTS 221, ETS No 5.
International Covenant on Civil and Political Rights (opened for signature 1966, entered into
force 23 Mar 1976) 999 UNTS 171.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(adopted 10 Dec 1984, entered into force 26 June 1987) 1465 UNTS 85.
Recast PD (n 30) Annex I.
See Conclusions on Countries in Which There is Generally No Serious Risk of Persecution, 30 Nov
1992, para 4(a), which states that, ‘[i]t is necessary to look at the recognition rates for asylum applicants from the country in question who have come to Member States in recent years. Obviously, a
situation may change and historically low recognition rates need not continue following (for example) a violent coup. But in the absence of any significant change in the country it is reasonable to
assume that low recognition rates will continue and that the country tends not to produce refugees’.
Recast PD (n 30) art 37(3).
Conseil d’Etat, decision Nos 375474 and 375920 (10 Oct 2014) <http://bit.ly/1JCEIS5>
accessed 6 July 2016.
608 • Safe Country? Says Who?
Using a range of country of origin information (COI) sources is sound practice, but
quality and quantity of COI are not synonymous. In particular, EASO’s incipient role
concerning COI has been controversial. One shortcoming was that its collections of
COI material were, until recently, only made available to national authorities.40 EASO’s
institutional structures mean that it is dominated by governments. Notably, for instance,
its Management Board comprises only national government representatives.41 While it
has usefully enabled sharing of COI across governments, it is unclear whether it has provided a context to test its reliability and accuracy. Major changes to EASO’s mandate
and role have been proposed,42 assessment of which is outside the scope of this article.
However, it is sufficient to note that the reliability and credibility of its role in this context
depends, at least in part, on it being seen to have a degree of institutional autonomy from
governments. Notably, the UK has an expert body charged to review the quality of country guidance, the Independent Advisory Group on Country Information (IAGCI).43
Engelmann notes that it is ‘a unique body in Europe because none of the other European
countries has an independent body checking on country of origin information’.44 If an
EASO COI role is to be formalized, then such external scrutiny is imperative.
In his 1991 editorial, Goodwin-Gill’s vision of robust assessments of safety entailed:
a concerted multilateral, regional or similar response, that includes States and
international and non-governmental organizations. Ideally, it should also be
moderated internationally, for example, by UNHCR or other human rights
machinery, on the basis of agreed standards. Only in this way, will generalized
judgements as to the safe and the unsafe acquire weight.45
While quality standards for COI have been articulated in EU law,46 the type of process
that would meet the standards of participation and transparency espoused in the editorial has not.
40
41
42
43
44
45
46
P De Bruycker and L Tsourdi, ‘Building the Common European Asylum System Beyond
Legislative Harmonisation: Practical Cooperation, Solidarity and External Dimension’ in
Chetail, De Bruycker, and Maiani (eds) (n 30) 473.
See <https://www.easo.europa.eu/list-management-board-members> accessed 21 July 2016.
See Commission Proposal for a Regulation of the European Parliament and Council on the
European Union Agency for Asylum and repealing Regulation (EU), No 439/2010 4 (May
2016) COM(2016) 271 final.
Membership in the IAGCI is ‘at the invitation of the [Independent Chief Inspector of Borders and
Immigration] and is made up of individuals and organisations operating in the country information and /
or the refugee fields’. The current membership comprises mainly scholars and NGO representatives: see
<http://icinspector.independent.gov.uk/country-information-reviews/> accessed 21 July 2016.
Engelmann 2015 (n 14) 114. For an example of its role in practice, see SP Arapiles, ‘The True
Human Rights Situation in Eritrea: The New UK Home Office Guidance as a Political Instrument
for the Prevention of Migration’, RLI Working Paper No 14 (2015) <http://sas-space.sas.
ac.uk/6097/1/RLI%20Working%20Paper%20No.14.pdf> accessed 4 July 2016.
Goodwin-Gill (n 2) 250.
G Gyulai, ‘Country Information in Asylum Procedures – Quality as a Legal Requirement in the
EU’ (Hungarian Helsinki Committee, Dec 2007) <http://www.refworld.org/docid/479074032.
html> accessed 4 July 2016.
Safe Country? Says Who? • 609
2.4 Consequences of SCO designation
The Recast PD principally permits SCO to be used as a basis for accelerated procedures.47 Member States may only treat applications as unfounded after an individual
assessment.48 Importantly, accelerated procedures under the Recast PD must respect
the ‘basic procedural guarantees’ in that Directive. If a decision on a claim from a SCO
is deemed unfounded in this way, then there is an exception to the general entitlement
to automatic suspensive effect,49 but this is subject to safeguards.50 However, although
the consequences of designation are mainly procedural, they seem to be fatal in practice. EASO reports that 90 per cent of asylum claims that are dealt with in accelerated
procedures are rejected.51
2.5 SCO in practice
The latest Asylum Information Database (AIDA) Annual Report52 provides information on asylum procedures, reception conditions, and detention of asylum seekers in
17 EU Member States: Austria, Belgium, Bulgaria, Croatia, Cyprus, France, Germany,
Greece, Hungary, Ireland, Italy, Malta, the Netherlands, Poland, Spain, Sweden, and
the United Kingdom, and three non-EU countries: Switzerland, Serbia, and Turkey.53
The 2014–15 Report notes that Austria, Belgium, Germany, France, Malta, the UK,
and Switzerland use formal lists of SCOs under articles 36–37 of the Recast PD.
Hungary adopted a list in July 2015. However, importantly, ‘even countries which have
not laid down or do not apply the “safe country of origin” concept tend to make determinations on the unfoundedness of specific nationalities as a matter of administrative
practice’.54
The countries designated ‘safe’ vary greatly, demonstrating the politicization of the
determination. The report notes that ‘[w]hile certain nationalities are in some form
deemed as manifestly unfounded by as many as 13 countries, the same is not true
for other countries such as Georgia, Moldova, Ukraine, Pakistan, Bangladesh, India,
Mongolia, Nigeria or Senegal’.55 In addition, some countries’ ‘safe country’ designations
only apply to certain applicants (for example, a ‘safe-for-men’ designation), which the
Report considers creates ‘further discrepancies in the way presumptions of safety are
developed in the EU’.56 At first glance, there is little substantive convergence. However,
informal policy dynamics have created some shared understandings. Engelmann’s analysis is the most comprehensive. She identifies convergence in the treatment of countries
47
48
49
50
51
52
53
54
55
56
Recast PD (n 30) art 31(8)(b). The notion of accelerated procedure is explained in Recital 20.
ibid art 32(1).
ibid art 46(6)(a).
ibid art 46(7).
EASO Annual Report on the Situation of Asylum in the European Union 2015 (EASO 2016) 96.
Asylum Information Database, ‘Common Asylum System at a Turning Point: Refugees
Caught in Europe’s Solidarity Crisis’ (2014–15) <http://www.asylumineurope.org/annualreport-20142015> accessed 8 July 2016.
ibid 8.
ibid 77–78 (footnotes omitted).
ibid 78.
ibid 80.
610 • Safe Country? Says Who?
in the Western Balkans and Western Africa as ‘safe’. To illustrate, she notes the cascade
of SCO determinations made by States assessing Ghana and Senegal, as follows:
Ghana: G
ermany (1993), The Netherlands (1995), UK, Slovakia and Denmark (all
1996), Bulgaria (2000), Malta (2004), France (2005), Luxembourg (2007).
Senegal: Germany (1993), The Netherlands (1995), Slovakia and Denmark
(1996), Bulgaria (2000), France (2005), Luxembourg (2007).57
Engelmann provides three explanations for the convergence of SCO policies across
Europe:
(i) the copycat game as a way of imposing policies on neighboring countries who
want to avoid being the weakest link in a certain subregion of Europe, (ii) the ratio
of numbers of asylum seekers coming from countries of origin to their acceptance
rate, and (iii) political considerations, most importantly of enlargement prospects,
as a way to whitewash the human rights record of countries or origin.58
Her observations confirm that although the criteria for designating countries as ‘safe’
invite us to imagine a rigorous assessment of the actual state of human rights in the
country, in practice, concerns about the number of asylum seekers (both relative, absolute, and potential) and extraneous political concerns dominate. While this is not surprising in itself, it points to the fact that the legal standards on what is a safe country
do not determine the outcomes, but rather the institutional context. In essence, the
designation of safe countries is usually a political process, which seeks to inform the
outcome of an administrative adjudication.
As mentioned above, in 2015, the European Commission proposed a harmonized EU
list in the form of a regulation to amend and supplement the Recast PD.59 The proposed
list would initially comprise seven countries: Albania, Bosnia and Herzegovina, the former
Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia, and Turkey. It appears that
the proposal was a political response to the increase in asylum seekers from the Western
Balkans in recent years, who tend to be refused at a high rate.60 The proposal followed increasing political attention to claims from these countries, which are perceived to be an inappropriate use of administrative time.61 Moreover, future additions to an EU list were envisaged
to give priority to ‘third countries from which originate a significant number of applicants
for international protection in the EU such as Bangladesh, Pakistan, and Senegal’.62
57
58
59
60
61
62
Engelmann 2014 (n 14) 296.
ibid 300.
Proposal (n 15).
Peers (n 15).
See EASO, ‘Asylum applicants from the Western Balkans: Comparative analysis of trends,
push-pull factors and responses’ <https://www.easo.europa.eu/sites/default/files/public/
WB-report-final-version.pdf> accessed 8 July 2016; Council of the European Union, ‘Outcome
of the Council Meeting: 3405th Council Meeting: Justice and Home Affairs: Brussels’ (20 July
2015).
Proposal (n 15) Explanatory Memorandum 6.
Safe Country? Says Who? • 611
The Commission proposal purported to apply the Recast PD criteria to assess
the safety of the countries in question. However, it included additional criteria that
sit uneasily with the rules in the Recast PD, which would bind Member States if
they designate countries as safe. The additions include a quantative assessment
of the record of the country before the European Court of Human Rights, and its
candidate status for EU Membership.63 Both criteria sit uneasily with a robust COI
assessment, as they are weak proxies for the actual human rights situation. The
assessment in the proposal of the proposed countries frames the known human
rights violations as ‘exceptional’ in order to deem the countries in question as ‘generally safe’. For instance, in the case of Turkey, it notes that, ‘Discrimination and
human rights violations of persons belonging to vulnerable groups such as minorities, including ethnic Kurds, journalists and LGBTI still occur.’64 But this fact,
although acknowledged, does not alter the assessment of the general safety of the
country.
The inclusion of Turkey on the proposed list has been most controversial, evidently
due to the deteriorating human rights situation there, with increased political repression and military activity (in particular, in the South East against the Kurdish uprising).
Writing in early 2016, Roman, Baird, and Radcliffe noted that over 23 per cent of asylum seekers from Turkey are recognized as refugees or subsidiary protection beneficiaries in the EU.65 Its proposed inclusion on this EU list coincides with the suppression of
various reports on the deterioration of the human rights situation in Turkey.66 Given
the recent, even graver repressive events, Turkey seems to be committing human rights
violations on a massive scale.67
The inclusion of Turkey in the Commission’s 2015 proposal was surprising, even
a year ago. No EU Member State included Turkey on its SCO list. The explanation
lies not in domestic practice, but rather in the EU’s refugee containment ‘deal’ with
Turkey.68 Under the deal, Turkey has agreed to take back refugees who leave its territory irregularly to access the Greek islands. In exchange, visa free travel to the EU for
Turks was on the table, and a reopening of some elements of Turkey’s EU accession
negotiations. The inclusion of Turkey on the proposed SCO list illustrates, yet again,
that politics determines the content of these lists, rather than a rational assessment of
country of origin conditions.
The move also illustrates the links between SCO and visa policies. Governments
have long used visas to hamper access to asylum. Depending on the geographical location of the potential country of asylum, visa requirements may effectively render access
63
64
65
66
67
68
ibid Preamble paras 10–16.
ibid Explanatory Memorandum 6.
See Roman, Baird, and Radcliffe (n 15) 5.
See eg, Nikolaj Nielsen, ‘EU Trying to Bury Report on Turkey Migrant Returns’ (EU Observer,
15 June 2016) <https://euobserver.com/migration/133836> accessed 12 July 2016.
BBC News (n 16).
EU–Turkey Statement, 18 Mar 2016, Press Release 144/16. See S Peers, ‘The Final EU/
Turkey Refugee Deal: a Legal Assessment’ (EU Law Analysis, 18 Mar 2016) <http://eulaw
analysis.blogspot.com.au/2016/03/the-final-euturkey-refugee-deal-legal.html> accessed 12
July 2016.
612 • Safe Country? Says Who?
to asylum extremely difficult due, in particular, to the combination of visa and carrier sanctions regimes.69 The examples examined in this article show that sometimes
when visa imposition is not an option, safe country designation may be used instead.
As Macklin has demonstrated, Canada’s creation of its DCO regime was prompted
when it became politically unviable to maintain visa requirements for those travelling
to Canada from EU Member States.70 In the EU context, the increase in asylum applications from nationals of the Western Balkans correlates with the entry into force of visa
waiver agreements with those countries.71
Visa politics may similarly underlie the attempt to designate Turkey as ‘safe’. One element of the EU-Turkey deal envisages visa-free travel to the EU for Turkish nationals.
Just as has been the case with the Western Balkans, SCO designation is seen as part of
signalling that access to the EU as a temporary visitor should not be seen as an invitation to claim asylum. The imbrication of asylum, visa policy, and country designation
is apparent. To put it somewhat crudely, governments may successfully deflect asylum
applications using visa requirements. If that policy tool becomes unavailable, or is ineffective, they may turn to other tools to manage the asylum process.
3. E U RO P E A N CO U RTS A N D S CO
SCO practices are regulated by appropriate standards concerning assessment of whether
countries are generally safe, but the processes for this assessment are unlikely to ensure
isolation from political concerns. Unsurprisingly, perhaps, rejected asylum seekers and relevant non-governmental organizations turn to the courts to challenge SCO designations
with some frequency. The practice of courts when called upon to assess the legality of SCO
practices has diverged, as discussed below. Surprisingly, national cases tend to review SCO
practices according to domestic legal standards, rather than give precedence to the general
principles of EU law, despite its robust proportionality and non-discrimination principles.72
The German Constitution was amended in 1993 to include an SCO rule.73 The
German Constitutional Court upheld the constitutionality of that amendment,
although there was some division between the judges on a particular designation.74
69
70
71
72
73
74
See T Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation
of Migration Control (CUP 2011); M den Heijer, Europe and Extraterritorial Asylum (Hart
Publishing 2012).
Macklin (n 3).
See Engelmann 2014 (n 14) 297.
C Costello, ‘The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet
General Principles’ in A Baldaccini, E Guild, and H Toner (eds), Whose Freedom, Security and
Justice? EU Immigration and Asylum Law and Policy (Hart Publishing 2007) 151.
Art 16a(3) of the German Basic Law provides that SCOs are those ‘[I]n which, on the basis of
their laws, enforcement practices and general political conditions, it can be safely concluded that
neither political persecution nor inhuman or degrading punishment or treatment exists.’
German courts did not constrain the introduction of SCO, although there was disagreement
between the judges regarding Ghana’s inclusion. See dissenting opinions of the judges Limbach,
Böckenförde, and Sommer, Federal Constitutional Court, Decision of 14 May 1996, 2 BvR
1938/93, 2 BvR 2315/93, BVerfGE 94, 49 (189) point E ff.
Safe Country? Says Who? • 613
However, in practice, formal listings were not used until 2014, so it remains to be seen
whether the German courts will scrutinize the new designations closely.75
In contrast, French courts have reviewed particular SCO designations regularly. For
instance, in 2013, the Conseil d’Etat upheld the designation of Armenia, Moldova, and
Montenegro as SCOs, but struck down that of Bangladesh.76 As mentioned above, in
2014, the Conseil d’Etat reviewed the inclusion of Western Balkan States and deemed
the listing of Kosovo as illegal, for reliance on an inadequate range of information.77 The
French government relisted Kosovo in October 2015,78 and non-governmental organizations have again challenged the new list before the Conseil d’Etat.79
In 1993, the Belgian Constitutional Court struck down a particular SCO mechanism, under which countries were considered as ‘safe’ on the basis of the ‘twice five
per cent rule’. The rule stipulated that when at least five per cent of the total number of
asylum seekers originated from a particular country, and the recognition rate was under
five per cent, the country should be designated as safe. This mechanism only concerned
asylum seekers who submitted their application at the border. The Constitutional Court
deemed this a violation of constitutional equality.80 In 2015, the Belgian Conseil d’Etat
struck down the inclusion of Albania from the Belgian list, given the recognition rates of
asylum seekers from that country.81 Notably, this decision predated the Commission’s
proposal to include Albania on the common EU list by only a few months. The Belgian
government reintroduced Albania to the list but, again, in June 2016, the Conseil d’Etat
struck it down.82
In the UK courts, cases have tended to rely on traditional common law principles,
in particular, irrationality. On occasion, the designation of countries as ‘safe’ has failed
basic administrative law scrutiny, being deemed irrational in light of the known facts
about the country in question. Notably, the English High Court, in Husan,83 questioned
75
76
77
78
79
80
81
82
83
See AIDA overview: <http://www.asylumineurope.org/reports/country/germany/asylumprocedure/safe-country-concepts> accessed 6 July 2016.
Conseil d’Etat, decision No 356490 (4 Mar 2013) <http://arianeinternet.conseil-etat.fr/
arianeinternet/ViewRoot.asp?View=Html&DMode=Html&PushDirectUrl=1&Item=1&
fond=DCE&texte=356490&Page=1&querytype=simple&NbEltPerPages=4&Pluriels=True>
accessed 12 July 2016.
See (n 39).
See ‘Décision du 9 octobre 2015 fixant la liste des pays d’origine sûrs’, Journal Officiel de la République
Française (17 Oct 2015) <https://ofpra.gouv.fr/sites/default/files/atoms/files/151017_jorf_
decision_ca_ofpra_du_9_octobre_2015.pdf> accessed 21 July 2015.
See discussion in Conseil d’Etat, Juge des référés, No 396145 (19 Feb 2016) <https://www.
legifrance.gouv.fr/affichJuriAdmin.do?idTexte=CETATEXT000032112617> accessed 21 July
2016.
Constitutional Court of Belgium, No 20/93 (4 Mar 1993) <http://www.const-court.be/public/
f/1993/1993-020f.pdf> accessed 6 July 2016. On the subsequent developments, see L LeBoeuf,
‘Le Juge Garanti Ultime l’équité de la procédure d’asile’ (2014) Administration Publique 221.
Belgian Conseil d’Etat, decision No 231.157 (7 May 2015) <http://bit.ly/1Fjp3AE> accessed
21 July 2016.
Belgian Conseil d’Etat, decision No 235.211 (23 June 2016) <http://www.raadvst-consetat.be/
arr.php?nr=235211> accessed 21 July 2016.
Husan v Secretary of State for the Home Department [2005] EWHC 189 (Admin).
614 • Safe Country? Says Who?
whether outcomes produced by the asylum system could be used to determine how
future claimants should be treated. Wilson J noted that the ratio of previous rejected
claims only reflected the cohort that had claimed asylum in the UK, so could not be
taken as an accurate indicator of the actual country conditions.84 In that case, the listing
of Bangladesh was deemed irrational, and struck down on those grounds. In Javed, the
designation of Pakistan as safe was similarly struck down.85 The Court noted that there
was:
no explanation as to how he [the Secretary of State] was able to conclude, on the
material before him, that there was in general no serious risk of persecution in
Pakistan. Had he applied the correct test to that evidence we do not consider that
he could reasonably have reached this conclusion.86
However, the administrative law threshold of irrationality is difficult to meet. In a
case concerning the designation of Gambia, the UK Court of Appeal emphasized that
the Secretary of State had a wide margin of appreciation in deciding to designate a
State and held that, although there was ‘troubling’ evidence of human rights abuses
in Gambia, they were not sufficiently generalized or systematic enough to mean that
she could not designate it as ‘safe’.87 Elias LJ stated that ‘[t]he persecution must be sufficiently systematic properly to be described as a “general feature” in that country, and
this in turn requires that it should affect a significant number of people’.88 He concluded
that the Secretary of State was entitled to conclude that ‘the human rights infringements were not so systemic or general as to compel the conclusion that as a matter of
law Gambia could not properly be designated’.89
More recently, the UK Supreme Court, in Brown,90 held that the designation of
Jamaica as a place in which there was ‘in general’ no serious risk of persecution was
irrational, noting, in particular, risks to lesbian, gay, bisexual, trans, and/or intersex
(LGBTI) persons. The UK government had attempted to argue that as the risks were
only applicable to a particular discrete minority, the country could nonetheless ‘generally’ be regarded as safe. Toulson LJ rejected this argument, noting the statutory
requirement that a SCO be one where there was ‘in general … no serious risk of persecution of persons entitled to reside in that State’, meaning that persecution could not be
endemic, that is, ‘occurring in the ordinary course of things’.91 Since persecution within
the meaning of the Refugee Convention is often directed towards minorities, the government’s proposed interpretation was rejected. A risk to a minority group was in this
case a ‘general’ risk of persecution, so the country could not legally be regarded as an
84
85
86
87
88
89
90
91
ibid para 57.
R (Javed) v SSHD [2001] EWCA Civ 789.
ibid para 73.
MD (Gambia) [2011] EWCA Civ 121.
ibid para 22.
ibid para 50.
R (on the application of Brown) Jamaica [2015] UKSC 8.
ibid para 21.
Safe Country? Says Who? • 615
SCO. It appears that the government’s new country guidance on Jamaica was introduced in response to the ruling, although it does not cite the case explicitly.92
Thus, the approaches of each court system are distinctly national. As is illustrated
above, in the UK, rationality is the standard of review, even though the EU general
principles of non-discrimination and proportionality could be invoked. In contrast,
the cases in France and Belgium use the terms of the EU legislation to review compliance with the designation standards, or to consider constitutional legality and equality. The overall impression from this, admittedly selective, account of the case law, is
that the courts have intervened mainly when SCO designation has been egregiously
lacking in foundation. Courts have also occasionally treated the criteria for designation
with suspicion, in particular, when they give excessive weight to past recognition rates.
However, governments have responded in turn, and often quickly re-list countries, or
adopt country guidance, which may serve as an ersatz listing mechanism.
Thus far, the CJEU has not provided much guidance on asylum procedures. For
instance, in the HID ruling, the CJEU interpreted the Original PD as allowing Member
States to use country of origin as a basis for deciding which claims to accelerate or prioritize.93 It noted that the aim of the Original PD was to establish common minimum
standards and to ensure expediency in processing asylum claims, also noting that it
afforded Member States significant discretion in implementation. The nationality of
the applicant for asylum was an element that might be taken into consideration to justify the prioritized or accelerated processing of an asylum application. However, crucially, such prioritized procedures (which were outside the explicit SCO framework of
the Directive) had to respect the full set of procedural rights under the Directive. These
rights included allowing applicants a sufficient period of time within which to gather
and present the necessary material in support of their application. In spite of emphasizing some procedural safeguards, HID is a disappointing judgment from a non-discrimination perspective, as it fails to explore when using nationality to determine procedural
matters should be regarded as discrimination on that ground (or on the related ground
of national origin).
In this way, the HID ruling has failed to interrogate the crucial question concerning
SCO and related concepts, namely, what sort of consequences may legally be determined by a general assessment of the country conditions. In this way, thus far, the CJEU
has not significantly constrained SCO practices. It has been suggested that the proposed EU SCO list could further erode CJEU control over SCO listings. The proposed
common list is in the form of an EU regulation. It is unclear whether the criteria for
listing countries in the Recast PD apply when the EU sets its common list.94 Formally,
they are in a Directive addressed to the Member States when they operate national lists.
In formal terms, a possible legal lacuna opens up, if EU designations cannot be assessed
92
93
94
Asylum Aid, Safe Country Concepts: The United Kingdom in AIDA Database <http://www.
asylumineurope.org/reports/country/united-kingdom/asylum-procedure/safe-countryconcepts> accessed 1 July 2016, citing ‘Country Information and Guidance Jamaica: Sexual
Orientation and Gender Identity Version 1.0 July 2015 and Country Information and Guidance
Jamaica: Fear of Organised Criminal Gangs Version 1.0’ ( July 2015).
Case C-175/11 HID [2013] ECR I-0000, 31 Jan 2013, para 73.
See Meijers Committee (n 15) 4.
616 • Safe Country? Says Who?
in light of the SCO criteria in the Directive. In many other contexts, the CJEU has
interpreted the rule of law at the supranational level such as to avoid such gaps in effective judicial protection. It is imperative that the CJEU’s role in reviewing designations
is secure, if the SCO criteria in the Recast PD are to be a meaningful constraint on the
politics of listing.
The extent of requisite judicial control over SCO practices was not considered in
Goodwin-Gill’s 1991 editorial. Nonetheless, the editorial made clear that human rights
principles entail a strongly individualized approach, so open, collaborative processes
to assess the safety of countries are imperative. However, the case law discussed above
demonstrates that SCO practices have not developed the evidence-based approach
espoused in the editorial, but rather seem often to be based on crude political calculations. The result is that courts, even applying deferential domestic administrative
law standards of review, have struck them down. Nonetheless, European courts have
not impugned the basic permissibility of SCO designation. This is in contrast to the
Canadian experience, set out below.
4. T H E C A N A D I A N D CO S Y ST E M A N D I TS D E M I S E
The European experience suggests that, notwithstanding concerns, SCO practices
remain very much in force, and are viewed as politically desirable. This part outlines
the contrasting Canadian experience, where a system for designating countries was
developed but, fairly quickly, was annulled by the judiciary. The political background
to the DCO system is instructive. As Macklin explains, the system was introduced in
response to ‘disproportionate representation of Hungarian Roma among asylum seekers in Canadian refugee statistics, and the government’s targeting of Roma as “bogus”
asylum seekers bent on abusing Canada’s asylum and social welfare system’.95 In effect,
‘the SCO concept was imported by Canada from European States in order to repel
European asylum seekers from Canada’.96 Indeed, Canada was not only emulating SCO
practices, but also, informed by the Aznar Protocol, effectively barring asylum seekers
from the EU.97
The DCO system was somewhat different from the European SCO practice. In contrast to the criteria set out in the Original and Recast PDs, the Canadian criteria for designation were based on quantitative thresholds based on the past combined rejection,
withdrawal and abandonment rate of asylum claims or, in some cases, the combined
withdrawal and abandonment rate of asylum claims.98 The quantitative thresholds
were left to political determination. The relevant Minister could decide both the number of claimants per year and the threshold acceptance rate to trigger designation.
95
96
97
98
Macklin (n 3) 101.
ibid. See also D Galloway, ‘Rights and the Re-Identified Refugee: An Analysis of Recent Shifts in
Canadian Law’ in S Kneebone, D Stevens, and L Baldassar (eds), Refugee Protection and the Role
of Law: Conflicting Identities (Routledge 2014) 39.
Macklin (n 3) 104. See also the Refugee Board’s 2015 inquiry into the Aznar Protocol (for which
they requested an ECRE submission) <http://www.refworld.org/docid/55bf55094.html>
accessed 21 July 2016.
Immigration and Refugee Protection Act (IRPA) SC 2001 s 109.1(2)(a).
Safe Country? Says Who? • 617
The Minister decided that the quantitative thresholds should apply to any country that
had generated 30 or more asylum claims in any 12-month period over the previous
three years, and that designation would apply to any country with an acceptance rate
lower than 25 per cent (where abandonment and withdrawal counted as rejection), or
a withdrawal or abandonment rate higher than 60 per cent. The abandonment rate in
particular may be a very poor proxy for the country conditions. If asylum seekers lack
information on the process, they may abandon claims and live irregularly, even if they
have strong protection needs. The prevalence of such conduct amongst certain national
groups may have little bearing on the country of origin conditions.
Designating countries based on the past outcomes of claims and determinations
inherently risks designations that do not reflect present conditions in the country of
origin. Indeed, depending on how they are designed, these processes may be liable to
be self-perpetuating, in that designation will in likelihood have a significant impact on
rejection rates (given the truncated procedural entitlements, meaning that there will be
a higher likelihood of false negative decisions), which, in turn, may provide the basis
for designation.
Admittedly, in a somewhat ironic institutional development, recognition rates of
claimants from designated countries increased in Canada after the introduction of the
DCO system. As Rehaag noted, the abandonment/withdrawal rate was down to 19 per
cent, and acceptance rates climbed to 44 per cent (which is slightly more than the overall acceptance rate in 2013, which was about 38 per cent).99 One possible explanation is
that first instance adjudicators, whose decisions were no longer subject to appeal, were
more hesitant under the new system than they would otherwise have been.
The DCO criteria in the Canadian legislation were also in sharp contrast to EU
standards,100 which, it will be recalled, required a thorough assessment of the effectiveness of various human rights protections and a range of reliable sources to be used in the
assessment of safety.101 The DCO assessment, in contrast, only exceptionally entailed
a qualitative element,102 applicable only when the number of claims had not reached
the designated threshold. The qualitative criteria did address country conditions, but
were cast at a high level of generality and abstraction, and lacked the requisite focus
on whether the country is liable to produce refugees.103 The procedure for adding or
removing countries from any list of safe countries of origin was also of concern, again
being subject to wide political discretion. The process for designation, being based on
Ministerial discretion, including setting the quantitative thresholds, seemed liable to
lead to highly political determinations, rather than ones based on a range of reliable
sources of evidence concerning current country conditions.
99
100
101
102
103
Affidavit of S Rehaag (20 May 2014) Exhibit A, in XY litigation, on file with the author.
IRPA s 109.1.
Recast PD (n 30) Annex I, fns 32–36.
IRPA s 109.1(2)(b).
If the circumstances set out in section 109.1(2)(b) apply, the Minister may make a designation if
he or she is of the opinion that in the country in question (i) there is an independent legal system;
(ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed; and (iii) civil society organizations exist.
618 • Safe Country? Says Who?
Under the DCO system, the adverse procedural consequences included shortened
timeframes for submitting evidence;104 no right to appeal a negative decision,105 and
no right to remain in Canada while the Federal Court processed a request for judicial
review of an unreasonable/unjust IRB decision;106 a faster timeline for a removal order
after a negative decision;107 and no access to a Pre-Removal Risk Assessment (PRRA)
for the first 36 months after a negative decision.108 The impact of the designation was
thus mainly procedural. Indeed, the Canadian government argued, for that reason, that
it was incorrect to refer to the system as one of ‘safe’ country, as no express finding
of ‘safety’ was made. First instance decision makers were not instructed to make any
presumptions of safety regarding the countries in question. Nonetheless, the political
context and legislative history clearly indicates that a political attempt was being made
to delegitimize asylum claims from certain countries.109
The domestic public law in Canada provided fertile ground for an equality challenge. Section 15 of the Canadian Charter of Rights and Freedoms is interpreted as a
strong equality guarantee.110 The equality assessment turns on whether particular distinctions bring with them unjustified disadvantages. It is described as a ‘flexible and
contextual inquiry’ into whether particular legislative categorizations have ‘the effect of
perpetuating arbitrary disadvantage on the claimant because of his or her membership
in an enumerated or analogous group’.111
Three asylum seekers from DCOs challenged the constitutionality of the legislation.
They were YZ, from Croatia, whose claim was based on his Serbian national origin
and his sexual orientation; GS and CS, a gay couple from Hungary, whose claim was
based on their sexual orientation, and CS, from Romania. The Canadian Association of
Refugee Lawyers supported their case as a formal public interest litigant.
While the applicants argued that the DCO system was unfair and discriminatory,
the respondents argued that ‘the DCO regime is not based on stereotypes but, rather, is
based on informed statistical generalizations followed by thorough reviews of the country conditions’.112 Boswell J rejected this claim, in light of the clear legislative history
104
105
106
107
108
109
110
111
112
Immigration and Refugee Protection Regulations (IRPR) s 111.1(2) and s 159.9(1)(a).
IRPA s 110(2)(d.1).
IRPR s 231(2).
IRPA s 49(2)(c); IRPR s 231.
IRPA s 112(2).
Macklin (n 3); Galloway (n 96).
Section 15 provides: 1. Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability. 2. Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups including those that
are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
See Quebec (Attorney General) v A [2013] 1 SCR 61, para 331, cited in Kahkewistahaw First
Nation v Taypotat, 2015 SCC 30, para 16; YZ and the Canadian Association of Refugee Lawyers
(n 4) 892, para 116.
YZ and the Canadian Association of Refugee Lawyers, ibid para 123.
Safe Country? Says Who? • 619
and framework, which had the aim and effect of singling out a class of asylum seekers
for disadvantage based on their national origin. He found that the DCO system:
serve[d] to further marginalize, prejudice, and stereotype refugee claimants from
DCO countries which are generally considered safe and ‘non-refugee producing.’
Moreover, it perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or ‘bogus’ claimants who only come here to
take advantage of Canada’s refugee system and its generosity.113
The finding is startling in its clarity. There was no justification for disadvantaging claimants from particular countries. If there were weak or fraudulent asylum claims, adjudicators were assumed to be capable of doing their job and rejecting such claims. While
evidence of weak claims could be used as a reason to accelerate administrative processes, it provided no basis for limited appeal rights.
5. T H E ‘R E V E R S E O F T H E S A F E CO U N T RY CO I N ’
Goodwin-Gill’s editorial urged the consideration of the ‘reverse of the safe country coin’ –
namely, that if we are deeming countries to be generally safe then ‘there are necessarily
unsafe countries. Citizens of such countries would then logically be entitled to protection unless the receiving country proves the contrary’.114 Such a move seems particularly
apt nowadays, with historically high recognition rates for many fleeing to EU Member
States and, indeed, further afield. There are some States, notably Germany, that offer
protection swiftly on the basis of truncated procedures.115 However, a formal, general
move in that direction has not been implemented, in spite of large-scale refugee arrivals.
The EU’s Temporary Protection Directive could have provided some group protection in 2015.116 As Goodwin-Gill put it in 1991:
the urgent necessity for protection does not compel the single solution of granting full refugee status, but leaves open a range of responses including temporary
refuge with the possibility of periodic review. Such an approach would give time
for the development of multilateral initiatives on the causes of displacement.117
113
114
115
116
117
ibid para 124.
Goodwin-Gill (n 2) 249.
In 2015, Germany adopted such an approach in prioritizing applications from certain countries, including Syria and Eritrea, as well as those from members of ethnic minorities (Christians, Mandeans, and
Yazidi) from Iraq: See AIDA, ‘Regular Procedure: Germany’ <http://www.asylumineurope.org/
reports/country/Germany/asylum-procedure/procedures/regular-procedure> accessed 21 July 2016.
See M Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination
of the Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the
Mediterranean’ in C Bauloz, M Ineli-Ciger, S Singer, and V Stoyanova (eds), Seeking Asylum in
the European Union: Selected Protection Issues Raised by the Second Phase of the Common European
Asylum System (Brill/Martinus Nijhoff Publishers 2015) 225; M Ineli-Ciger, ‘The Missing Piece
in the European Agenda on Migration: the Temporary Protection Directive’ (EU Law Analysis,
8 July 2015) <http://eulawanalysis.blogspot.com.au/2015/07/the-missing-piece-in-europeanagenda-on.html> accessed 21 July 2016.
Goodwin-Gill (n 2) 249.
620 • Safe Country? Says Who?
Instead, in response to those who had already arrived in Italy and Greece (as well as in
Hungary initially) an emergency relocation mechanism was proposed as a partial and
temporary derogation to the Dublin system.118 Only certain nationalities were eligible –
those deemed to be in ‘clear need of international protection’.119 The rationale for only
providing relocation opportunities to those who are likely to be recognized as refugees
is not difficult to fathom, but, of course, given that conditions in Greece remain inhumane and degrading for many,120 creating a system that ignores the protection needs of
others is dubious. Moreover, the proxy for identifying ‘clear need’ is the past recognition rates of those of the same nationality across the EU. A threshold of 75 per cent past
recognition rate has been set, which is ‘based on Eurostat data and updated on a quarterly basis’.121 This produces a shifting set of nationals eligible, and is a crude indicator.122
Relocation is not working in practice,123 so the effects of this discrimination are not
as extensive as they would otherwise be. But the usage of past recognition rates is dubious, particularly when situations in countries of origin are volatile. Those fleeing may
be women, and/or belong to ethnic, religious, or other minority groups, where their
country of origin is only part of a complex set of risk factors for persecution or serious
harm. Moreover, relocation is a prelude to a full asylum adjudication, and there is no
requirement to use the ‘clear need’ approach to grant protection any more swiftly or
readily post-relocation.
6. CO N C LU S I O N S
In the 25 years since Goodwin-Gill’s editorial, SCO practices have proliferated.
Designating safe countries is often part of the ‘flurry of desperate measures’124 that
accompanies any significant increase in asylum seeking, particularly (but by no means
only) if recognition rates are fairly low. SCO designation is highly likely to undermine
118
119
120
121
122
123
124
Council Decisions (EU) 2015/1523 of 14 Sept 2015 and 2015/1601 of 22 Sept 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece
[2015] OJ L239/146 and L248/80.
ibid, Recital 20.
See eg, ECRE and ICJ, Fifth Joint Submission to the Council of Europe Committee of Ministers
on the execution of MSS v Belgium and Greece (Mar 2016).
European Commission, ‘Fifth Report on Relocation and Resettlement’ COM(2016) 480 final
(13 July 2016) 3.
The unpredictability generated by this indicator is shown in the European Commission’s
reports on relocation and resettlement. The original nationalities eligible for relocation, when
the Council Decisions were adopted, were Syria, Iraq, and Eritrea: see European Commission,
‘First Report on Relocation and Resettlement’ COM(2016) 165 final (16 Mar 2016) 6, fn 15.
The Fifth Report, dated 13 July 2016, lists the eligible nationalities as Central African Republic,
Eritrea, Seychelles, Dominica, Bahrain, Laos, Saudi Arabia, and Syria. Between the first and
second quarter of 2016, Burundi, British Overseas Countries and Territories, Costa Rica, Iraq,
Maldives, and Saint Vincent and the Grenadines were removed from the list on the basis that they
no longer met the 75% threshold: ibid 3–4.
Only 3,119 persons relocated out of a rather modest target of 106,000: see European Commission,
Member States’ Support to Emergency Relocation Mechanism, data as of 18 July 2016.
Goodwin-Gill (n 2) 248.
Safe Country? Says Who? • 621
the integrity of the asylum process if the procedural consequences of designation preclude proper assessment of claims leading to their wrongful rejection. European States
continue to use SCO designations, but the practices vary considerably as to both the
States designated and the consequences of designation. The policy convergence identified by Engelmann is telling, in that it illustrates that designation is often part of a
copycat deflection strategy, rather than one based on rigorous scrutiny of country
conditions.
In this context, it frequently falls to courts to check the legality of SCO designations,
and their consequences. In so doing, courts in Europe tend to rely on domestic administrative law principles. The sample of cases described here shows that the basic concept
of SCO is permissible, but particular designations may be challenged when they do not
rest on a proper assessment or proper process. The reasoning in the UK Supreme Court
ruling in Brown is noteworthy. The notion of countries as ‘generally’ safe sits uneasily with the nature of refugee protection, which often protects oppressed minorities.
However, notwithstanding the doubts this observation casts on the whole concept of
SCO, most designations stand up to judicial scrutiny. The Canadian experience, in contrast, demonstrates that a robust equality assessment may root out SCO designation
completely. Perhaps the EU is too far down the line to question the practices entirely,
but the Canadian ruling should serve to prompt them to be reconsidered. In particular,
it stands in contrast with the CJEU’s ruling in HID, which failed to properly address the
discrimination claim, leaving too much leeway to use nationality as a basis to determine
procedural protections.
The EU is turning once again to further common rules, with the aim of thereby
ensuring convergence in outcomes for asylum processes. The Commission’s proposal
on the common EU list of SCOs assumes that:
[a]n 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.125
This claim ignores the institutional context. Experience to date should suggest that
common rules do not necessarily generate common outcomes. Moreover, the choice of
countries to designate is dubious. While States in the Western Balkans may be ‘generally
safe’, that claim seems ludicrous with regard to Turkey in light of the events of July 2016.
This article has considered the institutional relationship between the adjudicator,
the courts, and politics. SCO designations must be based on rigorous processes and
sources, if they are to be credible and fair. The standards articulated in EU law in the
Recast PD are appropriate, but the institutional structures thus far, at national and particularly at the EU level, seem likely to politicize determinations. In this context, the
recourse to courts for correction of poor SCO determinations seems likely to increase.
If the EU common SCO list is adopted, the CJEU will be required to test the processes
at EU level. The current form of the proposed EU common list (a regulation) creates a
possible gap in effective legal protection.
125
Proposal (n 15) Explanatory Memorandum 3.
622 • Safe Country? Says Who?
As regards the ‘other side of the coin’, of countries designated as generally ‘unsafe’,
we have seen some isolated moves to use swift recognition, based on effective presumptions of refugeehood, in some contexts. However, EU relocation uses the very
crude proxy of past recognition rates to provide access to a system (relocation) that
needs urgent revisitation to ensure its fairness and effectiveness. Its premise is correct – we know that many seeking refuge are refugees. As Goodwin-Gill concluded in
1991, ‘[w]hat is finally required, of course, is a total approach, which uses knowledge
as the medium, linking movement to solutions through protection. And that is the next
chapter’.