EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

Post 2 of the series of the Odysseus blog on the Pact on Migration & Asylum

By Jens Vedsted-Hansen, Aarhus University

In light of the tremendous aspirations for the future of harmonisation of EU Member States’ asylum procedures when the process of reforming the Common European Asylum System was launched, it seems indispensable to examine whether and how the Asylum Procedure Regulation (EU) 2024/xx now adopted by the EU co-legislators is likely to fulfil the aims underlying the initial proposal for a Regulation. In the following, we shall attempt to elucidate the degree of harmonisation achieved with the new Regulation. Particular attention will be paid to the ‘special procedures’ according to Section IV of Chapter III of the Regulation which concerns the administrative procedure.

Thus, it will be considered whether harmonisation of this stage of the asylum procedure is likely to increase to the level of ‘full convergence’ as initially intended by the Commission. Under the Regulation, ‘special procedures’ encompass the application of the asylum border procedure, the accelerated examination procedure as well as the processing of subsequent applications. Admissibility decisions may be taken as part of the asylum border procedure, and the concepts of ‘first country of asylum’ and ‘safe third country’ as well as the novel ‘notion of effective protection’ (separately dealt with in the adjacent Section V of Chapter III of the Regulation) are going to provide the basis for a significant part of the decisions rejecting applications as inadmissible. 

The rules governing these specific procedural devices and concepts call for attention in order to understand the degree of future EU harmonisation of asylum procedures. Is the scope of ‘special procedures’ going to be expanded to the detriment of harmonisation? To which extent will the application of such procedures, in particular the asylum border procedure, become mandatory? Can Member States be expected to apply the accelerated examination procedure more coherently? As we shall see, while the Asylum Procedure Regulation introduces new mandatory rules, they may not necessarily result in full and effective harmonisation as they will in some instances become modified in practice due to various aspects of Member States’ procedural autonomy.

Evolving aspirations for harmonisation 

Let us first recapitulate the rationale of the various approaches to harmonisation of the standards on asylum procedures as they evolved during the preparation of the reform of the Common European Asylum System. When launching the initial proposal for a Regulation establishing a common procedure for international protection in the EU (Asylum Procedure Regulation) in July 2016, the Commission presented its aim to ‘establish a truly common procedure for international protection which is efficient, fair and balanced’ (here, p. 3). By choosing the form of a Regulation that would be directly applicable in Member States, and by removing elements of discretion as well as ‘simplifying, streamlining and consolidating procedural arrangements’, the proposal allegedly aimed at achieving a higher degree of harmonisation and greater uniformity in the outcome of asylum procedures across all Member States, thereby removing incentives for asylum shopping and secondary movements (here, pp. 3-4).

According to the Commission, a solid, coherent and integrated Common European Asylum System was to be based on common, harmonised rules that are both effective and protective, fully in line with the Geneva Convention.  Thus, the reformed system would become ‘designed to ensure full convergence between the national asylum systems, decreasing incentives for secondary movements, strengthening mutual trust between Member States and leading overall to a well-functioning Dublin system’ (here, p. 3). 

It should be recalled that some of the aspirations for harmonisation, and at least some of the mechanisms devised to implement them, were evolving in the Amended proposal for an Asylum Procedure Regulation (here) that was tabled by the Commission as part of the legislative package accompanying the New Pact on Migration and Asylum in September 2020 (here) and the subsequent negotiations on the proposal. This development had particular impact on the question of mandatory versus or optional application of border procedures which turned out to be rather controversial.

Asylum border procedure – mandatory rules, uncertain harmonisation

While border procedures on the admissibility and/or the substance of asylum applications are optional under the Asylum Procedures Directive 2013/32/EU (here, Article 43), and the Commission would retain the optional border procedure in its 2016 proposal for an Asylum Procedure Regulation (here, Article 41), the Council was divided as to whether the border procedure should become mandatory, based on a variety of practical and more principled concerns.

The Member States favouring an obligation to apply the border procedure considered it important as a migration management tool, in particular towards asylum applicants from countries of origin with low recognition rates, since examination at the border was expected to increase chances of direct return from the external border upon negative asylum decisions. Sceptical Member States pointed to challenges in applying the border procedure, such as difficulties in fast allocation of applications to examination in the border procedure, the need to keep applicants at the border during the procedure, problems in connection with appeal procedures, as well as concerns relating to the need for investments and resources for infrastructure, staff and equipment for examining asylum cases at the border (see here, p. 9).

In the light of this divide among Member States, the Commission seemed in the 2020 amended proposal for an Asylum Procedure Regulation to aim at a compromise: the asylum border procedure would remain optional as the point of departure, but examination in the border procedure of significant categories of asylum applications would become mandatory, partly reflecting certain Member States’ focus on applications with low recognition rates as mentioned above (here, Article 41(1)-(3)). Thus, the asylum border procedure should become mandatory for applications being subject to accelerated examination due to the applicant’s misleading the authorities with regard to his or her identity or nationality, the applicant being considered a danger to national security or public order, as well as applications falling under the new acceleration ground based on an average recognition rate at 20% or lower (here, Article 41(3) and Article 40(1)(i), taken together with the 2016 proposal here, Article 40(1)(c) and (f)).

The adopted Asylum Procedure Regulation has largely followed this approach: mandatory asylum border procedure for the abovementioned three types of cases, and optional border procedure for the rest (here, Article 45(1) taken together with Article 42(1)(c), (f) and (j), and Articles 43(1) and 44(1), respectively). It is therefore to be expected that significant numbers of applications will have to be examined in the asylum border procedure, yet the size and composition of the caseload is likely to vary as a function of fluctuations between the three types of cases subject to the mandatory border procedure. Should the number of misleading or dangerous applicants or of those with an average recognition rate at 20% or lower decline at any point in time, thus bringing fewer applications within the scope of the mandatory asylum border procedure, then it might trigger Member States’ exercise of their procedural autonomy by referring additional types of cases to the asylum border procedure according to the optional provision in Article 44 of the Regulation. 

Against this background, it is rather difficult to predict the extent to which the asylum border procedure will be applied in practice according to the mandatory rules in Article 45 of the Asylum Procedure Regulation. Insofar as existing capacity for examination in the asylum border procedure should become vacant, it may instead be used for the processing of other types of cases under the optional Article 44. In sum, it seems somewhat uncertain whether the total use of the asylum border procedure will actually converge across Member States on the basis of a combination of the mandatory and the optional rules in the Regulation, in line with the Commission’s initial intentions in the 2016 proposal for an Asylum Procedure Regulation (here, pp. 3-4).

Procedural autonomy and ‘adequate capacity’ – distorting harmonisation?

The uncertain degree of harmonisation of the asylum border procedure may ultimately be compensated by other legislative measures under the New Pact. First, Member States will be required to carry out pre-entry screening of asylum applicants at the external borders of the EU or in transit zones, as well as of other third country nationals if they are apprehended in connection with an irregular crossing of the external border, according to the new Screening Regulation (EU) 2024/xx (here, Article 3) which will be examined by Lyra Jakuleviciene in a separate post on this blog. At the opposite end of the examination procedure, decisions rejecting asylum applications in the context of the asylum border procedure will have to be enforced in the mandatory return border procedure as stipulated in the Return Border Procedure Regulation (EU) 2024/xx (here, Article 4, to be discussed by Madalina Moraru in a future post). 

Considering the totality of mandatory rules which Member States will be required to apply under the three Regulations on pre-screening, asylum procedure and the return border procedure, respectively, there is therefore a significant probability that the legislative measures accompanying the New Pact will altogether result in enhanced harmonisation of the various types of border procedures affecting asylum applicants. Nonetheless, as argued elsewhere, pre-screening of asylum applicants at the external borders might in the practice of some Member States become de facto merged with, or at least inseparable from, examination in the asylum border procedure and eventually removal under the return border procedure (here, pp. 171-73, and  here, p. 102, see also here, recital 57 of the Asylum Procedure Regulation). Here again the combination of mandatory rules and Member States’ procedural autonomy may distort the actual degree of harmonisation of procedural arrangements, potentially driven by national policy incentives to introduce restrictive control measures that may deviate from the aim of EU convergence while at the same time risk undermining procedural guarantees for applicants.

The uncertainty regarding the actual use of the asylum border procedure, as pointed out above, may ultimately become reinforced by non-normative factors resulting from a novelty that was inserted into the Asylum Procedure Regulation during the negotiations. Important limits on Member States’ obligation to apply the asylum border procedure, regardless of its formally mandatory nature, were adopted during the trilogue negotiations of the Regulation by way of the introduction of quantitative criteria based on the notion of ‘adequate capacity’. In regulatory terms such criteria seem to sit ill in a legislative instrument concerning the legal principles, rights and obligations of Member States and asylum applicants. Technicalities of the calculation of the ‘adequate capacity’ for each Member State, as well as the maximum number of applications to be examined in the asylum border procedure per year by each Member State according to the Regulation (here, Article 47(1) and (4)) shall not be accounted for in this context. Neither will the procedure for Member State notification of the Commission of having reached its ‘adequate capacity’ target or the annual maximum number of applications to be examined in the border procedure, nor the impact of such notifications (here, Articles 47(2)-(3) and 48-50) be described or analysed.

However, two significant consequences of applying such non-normative factors have to be emphasised. First, the quantitative ‘adequate capacity’ and annual maximum thresholds are of a substantively different nature than the normative rules governing the optional and mandatory use of the asylum border procedure. This kind of difference may arguably in principle result in weakening the degree of regulatory harmonisation. Second, the fact that Member States will, according to these quantitative criteria, be under the obligation to establish administrative and logistical capacity to examine a certain number of asylum applications at the external border may well in itself create incentives in favour of using that capacity irrespective of the qualitative criteria and principles – either under EU law or national law – that are supposed to govern allocation of applications to the asylum border procedure, especially if the allocation is based on the optional rules in the Asylum Procedure Regulation.

Examination of cases in the accelerated procedure

The asylum border procedure is closely connected to the accelerated examination procedure provided for in the Asylum Procedure Regulation in two particular respects: The merits of an asylum application may, with just a couple of exceptions, be examined in the asylum border procedure if it falls within the scope of the accelerated procedure (here, Article 44(1)(b) taken together with Article 42(1)(a)-(g), (j) and (3)(b)). And Member States shall apply the asylum border procedure in the abovementioned three categories of cases that are subject to examination in the accelerated procedure, i.e. the applicant’s misleading the authorities with regard to his or her identity or nationality, the applicant being considered a danger to national security or public order, and applications falling under the acceleration ground based on an average recognition rate at 20% or lower (here, Article 45(1) taken together with Article 42(1)(c), (f) and (j)). 

While Member States have quite wide discretion in applying the asylum border procedure, as discussed above, this is not the case for the accelerated examination procedure. Contrary to the current Asylum Procedures Directive under which both prioritisation and acceleration of the examination are optional (here, Article 31(7) and (8)), the future Asylum Procedure Regulation stipulates that Member States are required to apply the accelerated examination procedure for all asylum applications falling within the mandatory list of ten grounds for acceleration, except in cases concerning unaccompanied minor applicants for whom the accelerated procedure is optional and applicable only on five of those grounds (here, Article 42(1) and (3)).

Among the acceleration grounds, the one based on average recognition rates is probably the most significant and controversial novelty. According to this provision, the accelerated examination procedure applies to applicants of a nationality for which the proportion of decisions granting international protection, based on the latest available annual EU-wide average Eurostat data, is 20% or lower, unless a significant change has occurred in the country of origin since the publication of the data, or the applicant belongs to a category of persons for whom the proportion of 20% or lower cannot be considered as representative for their protection needs (here, Article 42(1)(j)). As argued in connection with the amended proposal for an Asylum Procedure Regulation (here, pp. 72-74, and here, pp. 103 and 105-6), such a ground for accelerating the examination procedure may appear disproportionate and even somewhat arbitrary, not least given the already existing acceleration ground based on the concept of ‘safe country of origin’ (here, Articles 36-37) which is retained in the future Regulation (here, Articles 61-64). 

The insistence on mandatory application of the accelerated asylum border procedure based on average recognition rates seems to reflect the co-legislators’ strong focus on the migration management aspects of the Asylum Procedure Regulation. It was apparently considered less relevant that the exception from the average rule for certain categories of persons, based on assessment of their individual protection needs, will be difficult to apply meaningfully within the confines of accelerated examinations and in the context of the asylum border procedure. Thus, notwithstanding the accompanying reference to both ‘swift’ and ‘fair’ procedures for all applicants (here, recital 56), the new acceleration ground is a basis for concern in terms of managerial effectiveness as well as individual protection. It also cannot be disregarded that the average recognition rate resulting in application of the asylum border procedure may be increased to 50% in situations of crisis, albeit on the basis of an optional derogation provision (here, Article 11(4) and recital 47, to be discussed by Meltem Ineli Ciger in a future post). Nonetheless, regardless of these concerns, the introduction of a mandatory acceleration ground based on average recognition rates is a clear step towards harmonisation of the asylum procedure.

At the same time, however, the Asylum Procedure Regulation retains Member States’ option to prioritise the examination of certain asylum applications with a view to examining them before others, as opposed to accelerated examination. The Regulation mentions examples of cases in which this may be deemed relevant, emphasising that this is a matter of flexibility (here, Article 34(5) and recital 44). As a remarkable difference from the current Directive which refers only to well-founded applications, vulnerable applicants and persons in need of special procedural guarantees (here, Article 31(7)), the future Regulation includes further examples of prioritisation expressly relating to Member State interests, such as applicants reasonably considered as a danger to national security or public order, and subsequent applications (here, Article 34(5)(c) and (d)).

Admissibility decisions and ‘safe country’ concepts

Although decisions on the admissibility of asylum applications are not formally taken in ‘special procedures’ under the Asylum Procedure Regulation, they are in reality an intrinsic part of such procedures given the fact that inadmissibility decisions may be, and are normally, taken in the framework of the asylum border procedure. In addition, some of the most important inadmissibility grounds are based on criteria which have to be applied in accordance with the ‘safe country’ concepts laid down in Section V of Chapter III of the Regulation.

Both the scope and the content of mandatory ‘safe country’ rules has been changing during the negotiations on reform of the Common European Asylum System. The Commission’s initial proposal for an Asylum Procedure Regulation would make the inadmissibility decisions as well as the underlying concepts of ‘first country of asylum’ and ‘safe third country’ mandatory, as opposed to the current Asylum Procedures Directive (here, Articles 36, 44(1) and (2), 45(1)-(3) and 46, cf. here, Articles 33(2), 35 and 38). The adopted Regulation seems to reflect a compromise insofar as inadmissibility decisions are in principle optional, and application of the asylum border procedure to such decisions is also a matter of Member States’ discretion (here, Articles 38(1) and 44(1)(a)) . By contrast, the general notion of ‘effective protection’ is formulated in mandatory terms. Since this notion will to a significant degree govern inadmissibility decisions based on the ‘first country of asylum’ and ‘safe third country’ concepts (here, Articles 57, 58(1)(a) and 59(1)(d)), the regulatory basis for such decisions can be characterised as a kind of hybrid between optional and mandatory standards.

The definition of the concept of safe third country was particularly controversial during the negotiations, and future application of this concept under the new Regulation may well give rise to legal challenges of its compatibility with the UN Refugee Convention and the EU Charter of Fundamental Rights. While this concept will be subject to a separate post on this blog, one specific element of the definition has to be noted in order to illustrate the degree of harmonisation of this inadmissibility ground. Reflecting the policy interests of certain Member States in abandoning the existing requirement of a connection between the individual applicant and the third country concerned (here, Article 38(2)(a) and (c)), there were proposals to change this requirement into an optional rule and leave it with Member States to decide whether and how transfers to ‘safe third countries’ should be contingent on the applicant’s connection to the relevant third country. 

The adopted Regulation has retained the connection requirement as a mandatory rule, yet apparently lowering the threshold for a requisite connection to be considered established (here, Article 59(5)(b) and recital 48). Importantly, however, as part of the evaluation stipulated in the Regulation, the Commission shall by one year from the date of its entry into force review the concept of ‘safe third country’ and shall, where appropriate, propose any targeted amendments (here, Article 77 in fine). The outcome of this review and potential future amendment of the concept may not only further expand the scope of this inadmissibility ground, but at the same time reduce the degree of harmonisation of the asylum procedure in terms of Member States’ possibility to adopt diverging policies and practices on ‘safe third countries’.