UN High Commissioner for Refugees, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, available at: http://www.unhcr.org/refworld/docid/4c63e52d2.html [accessed 14 July 2012], footnotes omitted
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… at the time of UNHCR’s research, the only mode for the designation of third countries as safe countries of origin under the APD was the second mode, set out in Article 30. This notion thus forms the subject of focus of this research.
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With regard to the national designation of third countries as safe countries of origin, Article 30 APD defines the criteria to be applied, and the circumstances and sources of information to be taken into account. The APD does not prescribe the authority responsible for the national designation of third countries as safe countries of origin, nor the modalities for national designation. However, the use of the term ‘national designation’, and the requirement to notify the Commission of countries which have been nationally designated in accordance with Article 30, suggests a formal act of designation which is executed independently of and prior to its application in the examination of any individual application. However, as will be seen in the subsections below, UNHCR’s research has found that there are a number of Member States which have national legislation in place which permits the application of the safe country of origin concept on a case-by-case basis without a transparent, formal, published act of national designation as foreseen by Article 30 APD.
UNHCR has voiced its reservations about the APD provision allowing Member States to retain or introduce legislation that permits national designation of third countries as safe countries of origin. UNHCR notes that such national designation is not conducive to, and indeed militates against, the uniformity of approach which is required to establish a Common European Asylum System. As will be shown, UNHCR’s research has revealed that, with regard to those Member States surveyed that apply the safe country of origin concept, there is divergence regarding those countries which have been assessed to be safe countries of origin.
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Recital (21) APD recognizes that the “designation of a third country as a safe country of origin … cannot establish an absolute guarantee of safety for nationals of that country”, and states that the assessment underlying the designation of a third country as a safe country of origin, by its nature, can only take into account “the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned”.
As such, an application by an applicant from a designated safe country of origin must nevertheless be subject to an individual and complete examination in which the presumption of safety can be rebutted. Therefore, designation of a country as a safe country of origin cannot be a ground for inadmissibility. It must be stressed that Article 31 APD stipulates that the concept of safe country of origin cannot be applied to a particular applicant unless there has been an individual examination of the application. This individual examination must be conducted by the determining authority. While under Article 23 (4) (c) (i) APD, it may be a ground for the prioritization and/or acceleration of the examination of the application, the examination must nevertheless be individual, and comply with the basic principles and guarantees of Chapter II APD.
According to the APD, a designated safe country of origin can only be considered to be safe for a particular applicant if, after an individual examination of the application, it is found that the applicant is a national of the country and “has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances”. For this reason, the national designation of a country of origin as safe is not relevant for an applicant who shows that “there are serious reasons to consider the country not to be safe in his/her particular circumstances”. Moreover, recital (17) reiterates that a third country cannot be considered as a safe country of origin for a particular applicant if s/he presents serious counter-indications. It is, therefore, implicit that national legislation which sets out further rules and modalities for the application of the safe country of origin concept should ensure that applicants have an effective opportunity to “present serious counter-indications” and “submit any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances.”
In this regard, UNHCR recommends that Member States inform all applicants at the outset of the asylum procedure when their country of origin has been designated as or is considered to be a safe country of origin; and explain the implications for the examination of the application. Applicants should be given an effective opportunity to consult a legal adviser in this regard. Member States should offer all applicants from nationally-designated safe countries of origin the opportunity of a personal interview, in which they are explicitly asked whether there are
any grounds for considering that the country is not safe in their particular circumstances, thereby giving an effective opportunity to rebut the presumption of safety. UNHCR regrets that Article 12 (2) (c) APD permits the [page 334] omission of the personal interview on safe country of origin grounds and strongly urges Member States not to omit the personal interview on this ground in their national legislation or in practice.
The concept of safe country of origin also has an evidentiary impact as it requires the applicant to rebut the presumption that the country of origin is safe with regard to his/her particular circumstances. However, this should not result in an unreasonably increased burden of proof on the applicant. The shared duty between the applicant and the determining authority to ascertain the facts still applies.
Finally, it is noted that under APD, where an applicant is from a nationally-designated safe country of origin and, following an individual examination of the application, it is determined that s/he has not submitted any serious grounds for considering the country not to be safe in his/her particular circumstances, the application may be deemed to be simply unfounded or manifestly unfounded. A certification as ‘manifestly unfounded’ may have an impact on the applicant’s right to an effective remedy.
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However, by derogation from paragraph 1 cited above and the criteria in Annex II, Member States may retain legislation in force on 1 December 2005 that allows for the national designation of countries as safe countries of origin, as long as they are satisfied that persons in the third countries concerned are generally neither subject to persecution as defined in Article 9 of the Qualification Directive, nor torture or inhuman or degrading treatment or punishment.
Moreover, Member States, again by derogation from Article 30 (1) APD, may retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country. This is possible as long as they are satisfied that persons in that part of the country, or the specified group of persons in the country, are generally neither subject to persecution as defined in Article 9 of the Qualification Directive, nor torture or inhuman or degrading treatment or punishment.
If Member States derogate from Article 30 (1) APD, in assessing whether a country is a safe country of origin, “Member States shall have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned”.
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As regards the possibility to designate a part of a country as safe, UNHCR notes that, in principle, a country cannot be considered ‘safe’ if it is so only for part of its territory. Furthermore, UNHCR wishes to emphasize that the designation of a safe part of a country does not necessarily represent a relevant or reasonable internal flight alternative. The existence of a ‘safe’ part of a country is but one element in an examination of whether a particular applicant has such an alternative. The complex questions which arise in the application of the internal protection alternative require a careful examination of the individual case in the regular procedure and should not be dealt with in an accelerated procedure.
Six of the 12 Member States under focus in this research have in place national legislation permitting the national designation of third countries as safe countries of origin, namely: Bulgaria,[28] France,[29] Germany,[30] Greece,[31] Slovenia[,][32] and the UK.[33] However, of these six Member States, only three – France, Germany and the UK – actually have operational national lists of designated safe countries of origin.
[Footnote 28:
Article 13 LAR (Amended, SG No. 31/2005) (1) (Supplemented, SG No. 52/2007): “Refugee status or humanitarian status shall not be granted with respect to an alien whose application is manifestly unfounded, where conditions under article 8 (1) and (9), respectively article 9 (1), (6) and (8) are not met and the alien: … 13. (new, SG No. 52/2007) comes from a safe country of origin or from a safe third country listed in the Minimum Common List adopted by the Council of the European Union or in the national lists adopted by the Council of Ministers.” Article 98 (New, SG No. 52/2007) (1) “By November 30 every year the Chairperson of the State Agency for Refugees in coordination with the Minister of Foreign Affairs shall submit national lists of safe countries of origin and safe third countries to the Council of Ministers for their adoption.”
Footnote 29:
Article L.722-1-2 Ceseda: “The board [of the OFPRA] […], in compliance with relevant EC provisions in this matter, designates the list of countries
considered at the national level as safe countries of origin”. [Unofficial translation]. The concept of safe country of origin did not exist in French legislation before the adoption of the Asylum Act of 10 December 2004 (entry into force on 1 January 2004).
Footnote 30:
Section 29a APA:“(1) The asylum application of any foreigner from a country within the meaning of Article 16a (3) first sentence of the Basic Law (safe country of origin) shall be turned down as being manifestly unfounded, unless the facts or evidence produced by the foreigner give reason to believe that he faces political persecution in his country of origin in spite of the general situation there.
(2) In addition to the Member States of the European Union, safe countries of origin are those listed in Appendix II.
(3) The Federal Government shall resolve by statutory ordinance without the consent of the Bundesrat that a country listed in Appendix II is no longer deemed a safe country of origin if changes in its legal or political situation give reason to believe that the requirements mentioned in Article 16a (3) first sentence of the Basic Law have ceased to exist. The ordinance shall expire no later than six months after it has entered into force.” Article 16a (3) Basic Law: “By a law requiring the consent of the Bundesrat, states may be specified in 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. It shall be presumed that a foreigner from such a state is not persecuted, unless he presents evidence justifying the conclusion that, contrary to this presumption, he is persecuted on political grounds.”
Footnote 31:
Article 22 of PD 90/2008 (with retrospective effect from 01/12/07) states that “safe countries of origin are … third countries … which are included in the national list of safe countries of origin, compiled and kept, for the purpose of the examination of an asylum application, by the Central Authority”.
Footnote 32:
Article 65 (3) IPA: “(3) Based on the criteria referred to in Article 30 of Directive 2005/85/EC, the Government of the Republic of Slovenia may designate third countries other than those appearing on the minimum common list. The Government of the Republic of Slovenia shall notify the European Commission thereof ”.
Footnote 33:
The UK has legislation allowing for the designation of third countries as safe countries of origin in the Nationality Immigration and Asylum Act 2002, Section 94 (3), (4), (5) and (6). Subsection 94 (3) provides for the certification of a claim as unfounded if the applicant is entitled to reside in a safe country of origin. Subsection 94 (4) lists the states originally designated by Parliament as safe countries of origin. Subsection 94 (5) and (6) of the 2002 Act allows the Secretary of State to add or remove states to those designated in the legislation ‘by order’. The 2002 Act came into force on 7 November 2002, and was amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (with effect from 1 October 2004) and by the Immigration Asylum and Nationality Act 2006.]
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At the time of UNHCR’s research, France had designated 15 countries as safe,[35] and Germany had designated the Member States of the EU, plus another two countries as safe.[36] The UK had designated 24 countries as safe. Only eight countries appeared on the lists of both France and the UK.[37] Only one country (Ghana) appeared on the list of all three States – although in the UK, Ghana was considered a safe country of origin for male applicants only.
Four Member States do not have legislation in place which provides for the ‘national designation’ of safe countries of origin, but nevertheless do have legislation in place which provides for the application of the safe country of origin concept in the examination of applications: the Czech Republic,38 Finland,39 the Netherlands40 and Spain.
[Footnote 35:
For the full list of safe third countries designated by France, see below (text at footnotes 107,108). A decision of the Board of the OFPRA made on 13 November 2009 added three countries to the list of designated safe countries of origin: Armenia, Turkey and Serbia. At the time of writing, there are, therefore, 18 designated safe countries of origin.
[page 348: “As of February 2008, the list compiled by the Board of the OFPRA featured 15 countries: … Benin, Bosnia-Herzegovina, Cape Verde, Croatia, Georgia, Ghana, India, Madagascar, Mali, Macedonia (ARYM), Mauritius, Mongolia, Senegal, Tanzania, and Ukraine.”]
Footnote 36:
Section 29a (2) APA in connection with Annex II (on Section 29a): Ghana and Senegal.
Footnote 37:
For the full UK list at time of writing, see below (text at footnote 143). Bosnia-Herzegovina, India, Macedonia, Mauritius, Mongolia and Ukraine. Ghana and Mali were also designated as safe by France, whereas they were designated as safe for men only in the UK. See below
for further details.
[page 352: “The 24 countries listed at the time of writing are: … Albania[,] Bolivia[,] Bosnia-Herzegovina[,] Brazil[,] Ecuador[,] India[,] Jamaica[,] Macedonia[,] Mauritius[,] Moldova[,] Mongolia[,] Montenegro[,] Peru[,] Serbia inc. Kosovo[,] South Africa[,] Ukraine[,] Ghana (men only)[,] Gambia (men only)[,] Kenya (men only)[,] Liberia (men only)[,] Malawi (men only)[,] Mali (men only)[,] Nigeria (men only)[,] Sierra Leone (men only)]]
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