28 March 2012
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EU Ministers declare
applicant countries "safe" to send back asylum-seekers
The meeting of the EU's Justice and Home Affairs Council in Luxembourg on 14-15 October took two steps to ensure that thousands of asylum-seekers arriving in EU countries from central and eastern Europe can be sent straight back without their claim for asylum being considered.
The Declaration by EU Ministers (see below) says that from the "day of signature of accession treaties" the ten central and eastern European states due to join the EU in January 2004 will be considered "safe" countries of origin and that applications for asylum from nationals from those countries will be considered as "manifestly unfounded". The applicant states are expected to sign the accession treaties next spring.
The ten countries are: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.
The Justice and Home Affairs Council argues that all the applicant countries are "safe" and "democratic" and are committed to the European Convention on Human Rights and introducing the full justice and home affairs acquis (including the Schengen provisions).
The presumption that all the applicant countries are "safe" to send back asylum-seekers to is highly questionable. There have been a number of cases where it has been judged that, for example, it cannot be considered "safe" to return Romas to certain of these countries. Moreover, the presumption that proper democratic and legal standards are already in place in all the applicant countries is not borne out by the evaluations carried out by the Commission which says that much progress if needed before the justice and home affairs acquis is being fully implemented. In the implementation of the Schengen acquis (which is part of the overall acquis) it is reported that this will not be fully implemented for years to come.
Tony Bunyan, Statewatch editor, comments:
"By agreeing this sweeping new measure in the form of an intergovernmental Declaration EU governments have by-passed accountability to national and European Parliaments. Moreover, accession treaties are not binding on signature but on ratification but the EU move, with its mandatory sounding wording, will become effective on signature"
The Austrian proposal
In a linked demand the Austrian government put forward a more far-reaching proposal which the JHA Council agreed should be considered by the European Commission and that they should "report back to the Council as soon as possible". The Austrian government proposal calls for a binding Regulation on all EU Member States for "a European list of safe third countries" to which people could automatically be returned to be adopted by the end of the year.
The list of countries proposed by Austria covers the ten applicant countries due to join the EU in January 2004 plus Norway, Switzerland, Iceland, Bulgaria and Romania.
Common European list of safe third countries, Note from the Austrian delegation: 12454/02 (pdf)
The Declaration by
the JHA Council
"We, the Ministers of Justice and Home Affairs of the Member States of the European Union, having met in Luxembourg on 15 October 2002, Whereas:
The negotiations with the Candidate States with which negotiations on accession to the European Union have been initiated have made considerable progress, in particular in the field of justice and home affairs;
Upon accession, those Candidate States will become bound by the Protocol on asylum for nationals of Member States of the European Union, annexed by the Treaty of Amsterdam to the Treaty establishing the European Community;
In the meantime, the Member States are resolved, as from the day of signature of accession treaties, to deal with applications for asylum lodged by nationals of those Candidate States, on the basis of the presumption that they are manifestly unfounded;
The exercise of any decision-making power of each individual Member State in asylum matters will take place with due respect of obligations under international law, and in particular obligations under the Geneva Convention relating to the status of refugees and the European Convention for the Protection of Human Rights and Fundamental Freedoms;
Declare the following:
Given the level of protection of fundamental rights and freedoms by the Candidate States, Member States agree to the presumption that Candidate States with which an accession treaty is being negotiated are safe countries of origin for all legal and practical purposes in relation to asylum matters, as from the date of signature of such accession treaty.
Accordingly, any application for asylum of a national of any such Candidate State shall be dealt with on the basis of the presumption that it is manifestly unfounded, without affecting in any way, whatever the cases may be, the decision-making power of the Member State concerned."
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