Two Steps Forward?

On May 25^th 2024 the Advocate General Nicholas Emiliou delivered his opinion in the Case C-406/22 CV v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky on several issues regarding the application of the safe country of origin (SCO) concept. The case could have significant impact on SCO policies of several EU Member States and the rights of refugees as it addresses the possibility of designating countries as safe with territorial exceptions as well as a more active approach to judicial review of SCO designations. If adopted by the CJEU, the AG’s suggestions could serve to enhance refugee protection, though the adoption of the Pact on Migration and Asylum might possibly counteract this.

The Case

CV is a Moldovan national who applied for international protection in Czechia where Moldova, alongside 24 other countries, is deemed a “safe country of origin”. As a result, CV had to rebut the presumption of safety and prove that in his specific case Moldova is not safe. He was unsuccessful, and the Ministry of Interior rejected his application as manifestly unfounded. As there is no appeal at the administrative level, CV filed an appeal to the Regional Court in Brno.

At the time, Moldova was designated an SCO with the territorial exception of Transnistria. Shortly after CV filed the appeal, the separatist army of Transnistria began preparations for conflict. Furthermore, Moldova had triggered Art. 15 of the European Convention on Human Rights (Convention) following the start of the Ukraine war.

This led the Regional Court to the referral of three questions to the Court of Justice of the European Union (CJEU):

• Whether a country can still be considered an SCO if it derogates from its commitments under the Convention in times of emergency;
• Whether a country can be designated as an SCO with territorial exceptions;
• Whether a court hearing an appeal to a denied asylum claim must or may consider whether the designation of the country as safe is contrary to EU law, even if the applicant did not raise this.

If the CJEU answers (some of) these questions in the affirmative as the AG opinion suggests it should, several EU Member States might have to significantly update their SCO lists and national courts would have an additional obligation. Both would improve refugee protection.

Invocation of Art. 15 as a Trigger for SCO Designation Review?

Concerning the first question, AG Emiliou stated that the invocation of Art. 15 of the Convention does not equate to a concession that the rights safeguarded by the Convention (those which can be derogated from) will, in fact, be affected. Rather, the determination of that fact will necessarily depend on each individual case, particularly on the actual situation in the SCO. However, the invocation must still be taken into account by the competent authorities for the purpose of deciding whether the SCO designation can be maintained. In the Czech case, if Art. 15 were invoked by an SCO, the Ministry of Interior would have to consider the scope of the measures derogating from the obligations under the Convention as defined in the notice submitted under Art. 15 of the Convention and its implementation in practice. If it found that the scope of the measures significantly worsens the human rights situation in the SCO, it would have to remove this country from the SCO list.

According to Art. 37(2) of the Procedural Directive (2013/32/EU), Member States must regularly review the situation in SCOs. It is left up to the Member States what regularly actually means. In Czechia § 86(4) of the Asylum Act requires that the Ministry of Interior reviews the SCO list at least once a year. Any SCO designation is based on Annex I of the Procedural Directive which lists criteria that a country has to fulfil in order to be considered safe. Once it stops fulfilling them, the responsible actor should react as soon as possible and remove it from the SCO list. This is why SCO lists usually take the form of a ministerial decree as it allows states to react quickly and be flexible in SCO designations.

The answer to the first question thus expands on the obligation to regularly review the situation in SCOs and adds a sort of a “warning light” criterion that should trigger the review of an SCO designation.

The (Un)availability of Territorial Exceptions

Concerning the second question, AG Emiliou considered that Annex I of the Procedural Directive provides that in a country considered an SCO there should generally and consistently be no persecution. The use of the adverb “generally” indicates that that condition has to be met in the whole country and not only in what is even a major part of it. He also stressed that the Procedural Directive forms part of the Common European Asylum System whose different components flesh out the right to asylum. Those components integrate considerations related to risks to which the applicants for international protection may be exposed and which are typically assessed by reference to situations prevailing in their countries of origin, not by reference to some territorial areas.

Using territorial exceptions addresses the situation of the population living in the affected area (Transnistria). The AG noted, however, that it leads to the SCO concept being applied to a part of the population (living in the rest of Moldova) despite the conclusion that the third country in question cannot be considered safe as a whole. This is problematic because it is difficult to clearly identify where the internal “border” between safe and unsafe parts of the SCO lies/should be drawn. Moreover, due to the precarious situation in a given region, such “borders” may be unstable.

Notably, the Procedural Directive’s predecessor allowed Member States to designate a part of a country as safe where the applicable conditions were fulfilled only in relation to that part. It also contained a standstill clause that confirmed the possibility for Member States to retain pre-existing national legislation allowing to designate part of a country as safe, or to designate a country or part of a country as safe for a specified group of persons. By contrast, the current Procedural Directive does not explicitly allow for such exceptions.

The AG noted that the SCO concept triggers an application of significant procedural derogations (shorter time limits, applicant may not have the right to remain in the country pending its appeal, the applicant has to rebut the presumption of safety). As such, it must be narrowly construed and cannot extend beyond the situations for which it has been designed by the EU legislature. That precludes its extension to third countries where compliance with the criteria in Annex I of the Procedural Directive does not exist within their entire territory.

The Potential Impact of the Reasoning

If the CJEU takes up the AG Opinion, it will impact a number of national SCO lists as several Member States use territorial exceptions. However, Art. 61(2) of a new Regulation explicitly allows for SCO designation with exceptions for specific parts of the country’s territory or clearly identifiable categories of persons (currently used more than territorial exceptions). The provision will repeal and replace the Procedural Directive (Art. 78 of the Regulation) and is expected be fully implemented by 2026. As such, even if the CJEU confirms the AG Opinion, its effect in practice might be short-lived. As the preclusion of territorial exceptions is grounded in the fact that they are not explicitly allowed by the Procedural Directive, this will not be an issue with the Regulation.

Interestingly, in response to the preliminary reference, the Czech Ministry of Interior amended the Czech SCO list. This had previously included Georgia, with the exception of Abkhazia and South Ossetia, and Moldova, with the exception of Transnistria. The amendment removed the territorial exceptions and designated the whole countries as SCOs. This is problematic since the prior exclusion of parts of these countries implied that they are considered unsafe. The Explanatory Report suggested that the obligation to assess each application for international protection on an individual basis justifies the amendment. If a person from these areas applied for international protection, residence in these areas would have to be taken into account and the application would be examined under the standard international protection procedure. This approach appears to side-step the implicit prohibition of territorial exceptions in the Procedural Directive and does not solve the problem introduced by AG Emiliou regarding the uncertainty of internal borders. At the same time, designating an unsafe country as safe while stating that it will be considered unsafe in individual proceedings contradicts the point of having a formalised SCO list.

Should the Courts Examine an SCO Designation at Their Own Discretion?

As to the third question, CV contested the rejection decision on the merits but did not contest the designation of Moldova as an SCO. The question was whether the referring court could consider this issue nonetheless and on their own accord.

AG Emiliou focused on Art. 46(3) of the Procedural Directive. This requires an effective remedy providing a full and ex nunc examination of both facts and points of law. That includes, where applicable, an examination of international protection needs pursuant to Directive 2011/95/EU. The examination must take place at least in appeals procedures before a court or tribunal of first instance. According to AG Emiliou, this provision requires for the national courts considering cases where the SCO concept is engaged, to raise, of their own motion, the incompatibility of the SCO designation with the requirements of the Procedural Directive. That applies in cases where the applicant has not raised it and if the court is unable to reach a conclusion that would be, on the merits, different from the one reached by the international protection authority.

As such, even if the court concludes that the asylum authority was correct in rejecting the applicant’s claim, it should still focus on the lawfulness of the SCO designation itself. The Opinion stresses, however, that the obligation of full judicial review of legal points under Article 46(3) of the Procedural Directive does not entail an obligation for the national courts to review those points without any restriction of their material scope. The adjective “full” covers legal points not considered by the asylum authority. If that requirement were combined with the obligation of the courts to review the case on their own motion, it would imply an obligation on the part of national courts to review a possibly indeterminate category of legal issues.

This is a significant shift in refugee protection as SCO designations are sometimes poorly justified and country reports may not always substantiate the fulfilment of the SCO criteria. If the CJEU takes up the conclusions of this Opinion, these issues could be addressed by the national courts. Contrary to the issue of territorial exceptions, the answer to this question will be relevant even after the implementation of the Regulation. Thus, Art. 67(3) of the Regulation also provides for a full and ex nunc examination of both facts and points of law, at least before a court or tribunal of first instance. At the same time, much remains left to the willingness of the courts and the level of scrutiny they will adopt to consider SCO designations.

Conclusion 

The case C-406/22 covers a number of issues concerning the application of the SCO concept by EU Member States. The AG Opinion provides useful answers that, if taken up by the CJEU, might significantly impact the protection of refugees coming from SCOs. On the other hand, while the new approach to judicial review of SCO designations will be applicable even after the implementation of the Regulation, the topic of territorial exceptions might soon become irrelevant.