4.4. Special procedures: admissibility, border and accelerated procedures

This section presents legislative, policy, and jurisprudential developments regarding Special procedures, while also incorporating perspectives shared by civil society actors, academia, and think tanks. It is structured around four thematic sections, following the logic of the recast APD. The overview starts with a presentation of changes regarding border procedure, followed by developments in accelerated and admissibility procedures. It concludes with a presentation of the application of safe country concepts.

The Asylum Procedures Directive sets the framework for the examination of applications for international protection at first instance under an accelerated, border or transit zones, or admissibility procedure, while remaining in accordance with the basic principles and guarantees.

Given that many applications for international protection are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant, Member States can provide for admissibility and/or substantive examination procedures which would make it possible for such applications to be decided upon at those locations in well-defined circumstances.

When an application is likely to be unfounded or where there are specific grounds, Member States may accelerate the examination procedure, in particular by introducing shorter, but reasonable, time limits for certain procedural steps, without prejudice to an adequate and complete examination being carried out and to the applicant’s effective access to basic principles and guarantees provided for in the Directive. Accordingly, Member States may provide that an examination procedure in accordance with the basic principles and guarantees of ADP be accelerated and/or conducted at the border or in transit zones. Applicants in need of special procedural guarantees should be exempted from special procedures.

Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In those cases, Member States have the possibility to dismiss an application as inadmissible in accordance with the res judicata principle. In addition to cases in which an application is not examined in accordance with Dublin III Regulation (EU), Member States are not required to examine whether the applicant qualifies for international protection where an application is considered inadmissible.

In addition, within the framework of a regular or one of the special procedures, Member States may prioritize certain categories of cases so that they are processed with priority before other types of cases. Prioritisation may concern both well-founded and unfounded cases and is a practical tool of making procedures more efficient 

In the course of 2018, UNHCR published a document summarising its position on access to protection and rights in the context of transfer to first countries of asylum and safe third countries373 as well as on accelerated and simplified procedures in the EU context.374
 

  

Legislative and Policy Developments

  Border procedure

In Italy, tthe so-called Immigration and Security Decree 375 introduced simplified and accelerated procedures for the examination of applications, expressing the intention to avoid fraudulent applications and to reduce processing times. Specifically, accelerated procedures (also applied at the borders and in the zones of transit) are used in case of 1) particularly unfounded applications, 2) in the case of applications submitted following detention (applied  under conditions of irregular stay) and  with the sole intention to delay or to prevent the issuance or the execution of a decision on expulsion or refoulement, and 3) applications submitted at the border or in the transit zone, after having been stopped for having eluded or tried to elude the border controls. Inadmissibility applies in the case of 1) Submission of the same application after a negative decision was issued by a Territorial Commission, without adding new elements regarding personal circumstances or referring to the situation of its Country of origin and 2) repeated application submitted pending the deadline for departure after a return decision The appeal for judicial remedy against the decision of inadmissibility has no suspensive effect, therefore the applicant must abandon the Italian territory, even if the remedy is pending.

Article 10 of the Security Decree also foresees the mechanism of immediate examination of the application when there is criminal proceedings against the applicant for international protection for one of the crimes recognised as of particular gravity (and for which the denial of the status of refugee is anticipated) and it is considered dangerous for the safety of the citizens or has been condemned (also with non-definitive sentence) for committing one of these crimes. In these cases, following the communication of the Questore (Provincial Police authority), the territorial Commission handles the immediate interview of the asylum applicant and then issued the decision. Except for cases envisaged in Article 19, paragraph 1 and 1.1 of the TUI (where the person is not removable), in the case of rejection of the application, the applicant is obliged to leave the national territory, even if the appeal is pending. 

Civil society expressed concerns with regard to the new Italian legislation and the procedure to be carried out in its entirety at the border or in the transit zone.376 As regards border procedures, concerns were also raised by ECRE regarding practical exemption of vulnerable individuals in in Portugal 377 and regarding deadlines for border procedures as applied for persons detained in the CIE in Spain 378 and related bottlenecks.379

In 2018, the implementation of a specific border procedure continued in Greece (based on Article 60(4) L 4375/2016) in implementation of the EU-Turkey statement, applied to persons seeking international protection on the islands of Lesvos, Chios, Samos, Leros and Kos. Concerns were noted by the Greek Council for Refugees380 in particular in connection with quality of decisions, vulnerability assessment, accessibility of interpretation services legal assistance. Issues were also underlined in the report of Council of Europe. 381
 

  Accelerated procedure

In France, the Law of 10 September 2018 the French authorities to put an asylum application under accelerated procedure when it is lodged more than 90 days after the applicant's entry into France. Following the 2018 reform, appeals in the accelerated procedure do not have automatic suspensive effect in the following cases: (a) safe country of origin; (b) subsequent application; and (c) threat to public order. In these cases, the right to remain on the territory ends upon notification of the negative decision. Asylum seekers can, however, appeal before the Administrative Court within 15 days – or 48 hours in case of detention – to request that the CNDA appeal be given suspensive effect. The request to the Administrative Court has suspensive effect.

In Sweden, as a result of a judgment of the Court of Justice of the European Union382, there has been a decrease in the number of asylum applications which are assessed as clearly unfounded and thus processed in accelerated procedure. Since Sweden has not implemented parts of the EU’s Asylum Procedures Directive relating to a list of safe countries of origin, the Swedish Migration Agency may not refer applicants of international protection to their home countries, and based on that, assess related asylum applications as clearly unfounded. As a result, many such cases are now processed in a normal or, in some cases, prioritised asylum procedure, instead of accelerated procedures. Save the Children pointed to concerns in that area.383

  Admissibility procedure

In Hungary, Article 51(2) of Act LXXX. of 2007 on Asylum was supplemented with the following ground of inadmissibility: An application shall be considered inadmissible if the applicant has arrived through a country where there is no risk of persecution under Article 6(1), or there is no risk of serious harm as defined in Section 12(1), or if the appropriate level of protection is provided in the country through which he/she has arrived in Hungary. There is no automatic suspensive effect of the appeals against the inadmissible decision based on the new ground. 

Compliance of such a ground with the recast Asylum Procedures Directive was raised in a preliminary reference by the Metropolitan Court, while it also led the European Commission to start an infringement procedure (see section on Infringement procedures by the European Commission for more information). Civil society underlined that all applicants applying for asylum after July 2018 have received inadmissible decisions.384

Other concerns regarding inadmissibility procedures were raised by civil society in Malta.385 

Following the reform that entered into force in Belgium on 22 March 2018, the Immigration Act contains the ‘safe third country’ concept, as a new ground for inadmissibility. In 2018 the concept has not been applied by the Commissioner-General for Refugees and Stateless Persons (CGRS) in practice, as anticipated, the concept was to be used only in exceptional cases and on an individual basis.   

On 5 December 2018, the Finnish Government submitted its proposal to amend the processing of subsequent applications for international protection to the Parliament. The amendments, which enter into force on 1 June 2019, are based on the recast APD and intend to increase efficiency in the processing of subsequent applications by specifying the admissibility criteria.386

Inadmissibility procedures were also analysed in jurisprudence of national courts.

In France, the Council of State has upheld the CNDA position stating that the preliminary assessment of the admissibility of a subsequent application must fulfil two cumulative conditions: (a) the alleged facts or circumstances must be ‘new’; and (b) their probative value must be such as to warrant a modification of the assessment of the well-founded nature of the claim.387 With regard to the first limb, the Council of State ruled later in 2018 that a final judgment by the ECtHR finding that a removal measure to the country of origin would constitute a violation of Article 3 ECHR constitutes new evidence, warranting admissibility of the subsequent application.388

In Switzerland, in a case concerning a Kurdish journalist for whom the State Secretariat for Migration (SEM) had issued an inadmissibility decision and an expulsion order to Brazil, the Federal Administrative Court recalled that, unlike third countries designated as safe by the Federal Council, the SEM must, when it comes to a return to another third country, examine in each case whether the latter offers sufficient protection against refoulement. In the present case, the Court considered that the reasoning put forward by the SEM, which concluded that there was effective protection against any refoulement in the country of origin, was insufficient.389

  Application of safe country concepts  

In Italy, Decree No 113/2018 foresees the creation of a list of ‘safe countries of origin’, as a tool of simplification of the procedure of examination of the questions of international protection. Such list must be adopted with decree of the Minister of the Foreign Affairs, in coordination with the Ministers of the Interior and Justice, also on the basis of information provided by the National Commission for the Right of Asylum. Inclusion of a third country on the list presupposes that the application of international protection concerning such country is unfounded and as such will be processed in an accelerated procedure. In this case, the burden of proof is reverted so that it is the applicant that must prove the lack of safety of their country of origin.

Some EU+ countries reviewed their national country of origin lists. 

In Ireland, a revised safe country of origin list was introduced in April 2018 via the International Protection Act 2015 (Safe Countries of Origin) Order 2018390 that came into effect on 16 April 2018. The following countries are designated as safe countries of origin under the Order: Bosnia and Herzegovina; Former Yugoslav Republic of Macedonia; Georgia; Kosovo; Montenegro; Albania; Serbia; South Africa. Relevant addendum was made also to the Information Booklet for Applicants to advised applicants of the practical effects of the Order. In Austria, several countries were added to the list of safe countries of origin: Armenia, Benin and Ukraine (added on 14 February 2019 391), Senegal and Sri Lanka (added on 20 June 2018).392 

On 21 November 2018, Liechtenstein and Georgia393 were – with certain reservations – placed on the list of countries processed in the expedited version of the manifestly unfounded procedure in Denmark.394 Also in the Netherlands, on 7 December 2018, the Minister for Migration informed the Parliament that Togo was temporarily removed from the list of safe countries of origin. An extensive reassessment will follow in order to evaluate the current security and human rights situation in Togo.395

In Belgium, on 27 December 2018 the Council of Ministers decided to maintain the existing eight countries on the list of safe countries of origin. Also in Estonia, in 2018 the list of safe country of origin was maintained without alterations upon review. In addition, a legislative amendment is pending for both the Act on Granting International Protection to Aliens and the Act on Obligation to Leave and the Prohibition on Entry stipulating that the list needs to be reviewed at least once a year. 

A proposal tto revise the Decree of the Minister of the Interior on list of safe countries of origin was submitted in late 2018 in the Czech Republic to include in the list further 12 countries of origin. The changes entered into force on 23 March 2019.396 The amendment of the Asylum Act proposes to extend the time limit up to 90 days for the determining authority to decide in the accelerated procedure including on the concept of safe countries of origin. The entry into force of  this change is expected at the end of June 2019.

In its opinion of 16 May 2018 on the application of the concept of ‘safe third country’ (Opinion No 394624), the French Council of State stated that recital four of the preamble to the Constitution of 27 October 1946 and Article 53-1 of the Constitution must be regarded, on the one hand, as obliging the French authorities to proceed to an examination on the merits of the asylum applications lodged by foreigners invoking recital four of the preamble of the Constitution, on the other hand, as preserving the sovereign right of France to examine the substance of a request for asylum, which does not fall within the scope of the preamble. 

The Research Social Platform on Migration and Asylum (RESOMA) published an analysis entitled The role and limits of the safe third country concept in EU Asylum policy397 and examined its impact on national level.

 

 

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373 UNHCR, Legal considerations regarding access to protection and a connection between the refugee and the third country in the context of return or transfer to safe third countries.
374 UNHCR, UNHCR Discussion Paper Fair and Fast - Accelerated and Simplified Procedures in the European Union. The paper formulates recommendations to MS and the EU institutions on accelerated and simplified procedures based on UNHCR's expertise and on MS practices. The cooperation of UNHCR and EASO is specifically mentioned regarding trainings under 4.5 Resource implications and coordination. State practice analysed and presented in the Annex includes: FR, DE, EL, IT, NL, NO, SE, CH.
375 IT LEG 01: Immigration and Security Decree.
376 AIDA, Country Report Italy, 2018 Update.
377 According to ECRE AIDA, while pregnant women, families with children and the severely ill were generally exempted from border procedures and such guarantee was also generally extended to unaccompanied asylum-seeking children, between 2017 and July 2018 the immediate release of families with children and pregnant women from border points and exemption from border procedures was no longer standard practice. AIDA, Country Report Portugal, 2018 Update.
378  AIDA, Country Report Spain, 2018 Update, p. 38.
379  Fundación Cepaim, Input to the EASO Annual Report 2018. Also Spanish Commission on Refugee Aid / Comisión Española de Ayuda al Refugiado CEAR indicated that The increase in the number of arrivals of asylum seekers in Madrid Barajas Airport, resulted in overcrowding and inadequate conditions in border facilities at the airport and severe difficulties for the Asylum Office and police to regularly register and process the admissibility of applications, often resulting in allowing entry into the territory before taking a decision on the application under the border procedure. Spanish Commission on Refugee Aid / Comisión Española de Ayuda Al Refugiado CEAR, Input to the EASO Annual Report 2018.
380 Greek Council for Refugees, Social Change Initiative, Borderlines of Despair: first line reception of asylum seekers at the Greek Borders, p. 29.
381 Commissioner for Human Rights of the Council of Europe, Report of the Commissioner for Human Rights of the Council of Europe following her visit to Greece from 25 to 29 June 2018, paras. 45 to 47.
382 CJEU, C‑404/17.

383 In an accelerated procedure for applications deemed manifestly unfounded, the Swedish Migration Agency may issue an enforceable return order which is not suspended pending appeal. Furthermore, there is no requirement that the state provides legal representation for applicants in this procedure, increasing the vulnerability of such applicants. Save the Children is concerned that some applications that cannot be considered manifestly unfounded are treated as such. In light of the consequences that can result from an incorrect assessment of a claim for international protection, increased efforts need to be made in order to minimize the risk of incorrect decisions, including raising the quality of decision-making. Save the Children (Sweden Office), Input to the EASO Annual Report 2018.
384 AIDA, Country Report Hungary, 2018 Update.
385 Maltese authorities noted that many individuals applied for asylum in Malta, who already enjoyed international protection in another EU Member State, and this led to an increase in the number of inadmissible decisions. Given their significant increase since 2017, NGOs expressed concerns over the application of inadmissibility procedures and the lack of effective remedy against the inadmissibility decisions taken in the accelerated procedures. This is subject to a legal challenge in court in the case of a Palestinian asylum seeker. AIDA, Country Report Malta, 2018 Update.
386 FI LEG 02: Government proposal to the Parliament to amend the Aliens Act, HE 273/2018 vp (Hallituksen esitys eduskunnalle laiksi ulkomaalaislain muuttamisesta, HE 273/2018 vp).

387 ECLI:FR:CECHR:2018:397611.20180126; FR CNDA, N° 15025487, 15025488.
388 ECLI:FR:CECHR:2018:406222.20181003. See also: AIDA, Country Report France, 2018 Update.
389 CH Federal Administrative Court, D-635/2018. See also in: AIDA, Country Report Switzerland, 2018 Update.
390 IE LEG 03: International Protection Act 2015 (Safe Countries of Origin) Order 2018.
391 AT LEG 05: Amendment of 14 February 2018 to the Safe Countries of Origin Regulation.
392 AT LEG 06: Amendment of 20 June 2018 to the Safe Countries of Origin Regulation.

393 Prior to that, 2018 Denmark experienced a significant increase in the number of asylum applications from Georgian nationals and most of these were processed in the manifestly unfounded procedure. DRC in Greece, Input to the EASO Annual Report 2018.
394 Ny I Danmark, Georgien er føjet til Åbenbart Grundløs Haster-landelisten.
395 Rijksoverheid, Kamerbrief over herbeoordeling veilige landen van herkomst.
396 CZ LEG 02: Decree 68/2019 Coll. Algeria, Ghana, Morocco, Senegal, Tunisia, India, Georgia (except Abkhazia and South Ossetia), Moldova (expect Transnistria), Ukraine (except Crimea and parts of Doneck and Luhansk under a control of separatists), Australia, Canada and New Zealand.
397 RESOMA, National Stakeholder Report 3 – The role and limits of the Safe third country concept in EU Asylum policy.