Part I of this two-part blog series explored the EU’s new Pact on Migration and Asylum, critically engaging with its implications on the rights of refugees. This analysis began by underscoring EU’s legal obligations under both international and regional frameworks, such as the principle of non-refoulment under the ECHR and the 1951 Refugee Convention. It accentuated the EU’s duty to protect individuals who were fleeing persecution.

Subsequently, the blog traced the historical and political backdrop of the Pact, noting its roots in the CEAS and the shortcomings of its processor, the Dublin Regulation, specifically during the European refugee crisis in 2015-16. The focus thereafter shifted to the screening procedures introduced in the Pact. In this regard, two key issues were identified, i.e., the over-reliance on technology and the violation of privacy of refugees.

To that end, Part II delves further into the Pact’s provisions, specifically the ‘safe third country’ (STC) provision, critically analysing its thresholds, safeguards, and the discriminatory implications, while examining how it undermines the rights of refugees. This analysis shall scrutinize the threshold adopted by the EU to designate a country as ‘safe’, with a focus on the safeguards it provides the asylum seekers with. Subsequently, it explores the discriminatory impact of the provision. Thereby, this post sheds light on the shortcomings of the Pact, underscoring how it overlooks the interest of the key stakeholders – the refugees.

The Return of the Migrants (to a Third Country)

The Pact  allows for the return of asylum seekers to a ‘safe third country’  (STC), enabling Member States to deport them if it is established that the person has a connection with the ‘safe country’. ‘Connection’ here refers to any tie with the country, including previous residence, family ties, or transit through its territory. Competent authorities may approve the transfer if they are ‘satisfied’ that the asylum seekers’ life and liberty are not threatened on account of race, religion, nationality, membership to a particular group, sex, or sexual orientation. The return of immigrants is contingent on a number of factors including the cooperation of the ‘safe third country’ and the feasibility of the transfer. The EU Pact does not address these issues directly, requiring instead an agreement between the two countries for the transfer to take place.

Moreover, there does not exist a uniform list of ‘safe third countries’. It is left for the Member States to designate countries that they deem safe. It gives the States a leeway to deny asylums to incoming migrants. Unlike a subjective STC determination, an objective list would ensure legal certainty and promote equal treatment of refugees. This would also plausibly prevent instances of a country with poor human rights records, like Türkiye, being designated as STC.

The ‘safe third country’ provision finds its place in the Pact under Regulation (EU) 2024/1348 (Recital 45 onwards). The given section shall argue that STC, which finds recognition in the Pact, undermines refugee protection by setting a lower threshold. Additionally, it is also argued that the use of the STC provision is inherently discriminatory.

EU’s Minimalist Approach to ‘safe third country’

The EU employs the concept of a ‘safe third country’ to deny asylum to applicants who are not deemed refugees – that is, if their circumstances do not warrant asylum because their ‘country of origin’ or the country they transited through is presumed safe and free of threats. STC, as per the EU, is applied in an attempt to reduce irregular arrivals.

Scholars argue that the STC provision should only be applied when it is determined that the destination country will provide “effective protection” – not only in theory but also in practice – and respects the spirit of the Refugee Convention and other international obligations. Cathryn Costello argues that a meaningful spectrum could have been adopted to assess the level of protection available to migrants in their first or transit country. However, the EU sidelined these considerations by adopting the term “sufficient protection” instead of “effective protection”. The minimal criteria for designating a third country as safe leaves refugees with minimal safeguards and Member States with latitude to breach their obligations.

In practice, it has been observed that the partnership agreements with third countries are obscure with no official scrutiny over their human rights records. Moreover, the general safety of a country does not guarantee accommodation for individual circumstances, such as those faced by minority groups, who may encounter specific discrimination. 

The transfer of responsibility between States raises significant issues of state accountability and their obligations under international law. The EU’s simplistic classification of countries as “safe” disregards the reality that a large proportion of the refugee population comes from regions that have historically borne the onslaughts of imperialism, war, and exploitation. A dialectical approach reveals that a purely legalist and Eurocentric approach overlooks such historic, economic, and political contexts of contemporary refugee flows. This underscores the need to make refugee protection more inclusive.

Pushing asylum seekers away to countries with fewer resources and where the guarantee provided to refugees is weaker, blatantly violates the good faith principle, which requires States to choose options that further the aims of the 1951 Convention rather than ones jeopardizing its “effective execution”. The STC provision adopts a lower threshold, reflecting shortcomings that fail to uphold the EU’s commitment to the spirit of international refugee law.

Discriminatory Procedure

The Pact allows for rapid examination of applicants through an “accelerated” procedure for certain groups of people who belong to countries considered ‘safe’. The criteria used for sending asylum seekers to a ‘safe third country’ include prior transit, illegal entry, or the feasibility of returning applicants to a third state. These factors are unrelated to the issue of refugee protection but rather focus on mere procedural or logistical aspects. Since immigrants from the non-European region are more likely to travel through multiple countries or enter irregularly due to multiple restrictive factors, the concept disproportionately puts non-European asylum seekers on a disadvantaged pedestal. This reduces their chances of obtaining protection.

Moreover, as discussed earlier, the technology itself is biased and often reflects racialised perception of migrants. The Pact enables borders to discriminate on the basis of race and nationality, thereby manifesting an exclusionary effect and violating Article 3 of the 1951 Refugee Convention. This breaches the principle of equality and poses the threat of making the procedure fundamentally biased. Although applicants can challenge the decision, they face a heavier burden of proof to demonstrate their need for international protection. This makes it difficult for them to exercise their rights, resulting in the “refugee orbit” phenomenon.

Article 10 of the Treaty of Functioning of the European Union (“TFEU”) provides for integration of the anti-discrimination attitudes in the ‘policies and activities’ of the EU. Along similar lines, Article 21 of the EU Charter of Fundamental Rights prohibits discrimination on grounds such as sex, race, colour, ethnic or social origin, or membership of a national minority.

The Pact provides for provisions that are inherently discriminatory towards people belonging to certain groups or origins without allowing a case-to-case distinction, eventually leading to the creation of a racialised and differential system.

Conclusion

The EU’s Pact signals a troubling shift in refugee protection which goes against the spirit of international refugee law. The overt reliance on technology for efficient and time-bound decision-making undermines the nuanced interplay of subjective and objective criteria of RSD and increases the risks of exclusion of migrants.

Furthermore, the screening procedures involve invasive practices which contravene the principle of necessity and the right to privacy of migrants. These practices disregard the purpose limitation principle as data collected for a specific purpose is increasingly repurposed. Personal devices of immigrants are accessed in several EU Member States without adequate oversight.

The STC provision further weakens refugee protection by imposing a lower threshold for deportation. The STC not only undermines the principle of non-refoulement but also exacerbates racial inequalities by overlooking historical and socio-political factors. It worsens the plight of asylum seekers by imposing an unjust burden to prove their necessity to counter the rejection of their refugee application.

Hannah Arendt, in the aftermath of World War II, rightly underscored the limitation of human rights: while proclaimed as universal, they remain unenforceable for the Stateless. Arendt’s statement remains relevant in the context of the EU Pact wherein migrants are subjected to surveillance and exclusion through myriad means. While policy interventions are required to protect the sovereignty of the State, the approach must remain dignified, without compromising on human rights. The Pact’s large-scale denial of human rights is alarming, exacerbating the invasive experiences that refugees endure before receiving asylum protection. This hampers the spirit of the Refugee Convention, as the Member States evade from fulfilling their international obligations and create inhumane conditions that diverge from the legitimate aims of international human rights law.

Click here to read part I.

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Srishti Gaur is a second-year law student at National Law University, Delhi.

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Picture Credit: Hoping To Survive, by Razieh Gholami, from Afghanistan, painted in 2019.