The Emperor's New Safe Country Concepts: A UK Perspective on Sacrificing Fairness on the Altar of Efficiency

Abstract

The adoption and implementation of Council Directive 2005/85/EC (the ‘Procedures Directive’), marks the end of the legislative stage of a nascent Common European Asylum System (CEAS) by establishing minimum standards on ‘fair and efficient asylum procedures in the Member States’. These minimum standards broadly relate to matters such as access to procedures, the right to remain pending decisions, examination requirements, the right to legal assistance, the right to an effective remedy and the application of the ‘safe country’ concepts. The Procedures Directive sets out harmonized criteria for the application of the safe third country and the safe country of origin concepts. Nevertheless, various provisions of UK law and the Procedures Directive itself indicate gaps in harmonization. This state of affairs creates the potential for diverse safe country designations, undermines the rights due to refugees in similar circumstances and could, therefore, result in the failure to uphold properly the principle of non-refoulement. In particular, by rendering a range of minimum standards ‘subject to certain exceptions’, the application of the safe country concepts within the Procedures Directive can be seen as an integral part of the drive towards more efficient asylum procedures within EU Member States. For example, the administrative regime created by the UK's ‘New Asylum Model’ (NAM) allows procedural safeguards to be lowered at the front end of the process before a substantive examination of safe country applications has taken place; applicants from countries the UK considers to be safe third countries or safe countries of origin are allocated to ‘fast track’ procedures reducing the amount of time available to prepare and present a case; in some cases, applications can be declared inadmissible without any substantive examination. This article focuses on the harmonized criteria relating to these two concepts and their inclusion within the UK asylum system, before exploring whether, and if so, to what extent, the application of such criteria reduces the level of procedural and concomitant substantive protection available to asylum seekers.