The European Safe Country of Origin List:
Challenging the Geneva Convention’s Definition of Refugee?
Bianca Benvenuti 14 March 2016

The three terms are either interchangeably used or applied to define different categories of migration, emphasizing weather it is voluntary or coerced. The discourse and definition of these categories is not and abstract intellectual exercise; it is in fact the pillar and base of any State and Government policies, as different each of them carries different obligations for the hosting country. While there is a general and internationally shared definition of these three categories, the difference between them is more nuanced in practice, as individuals have multiple and overlapping motivation for leaving their origin countries. In addition, migrants and refugees are nowadays using the same migratory routes, making it even harder to tell one from the other.

We based our current definition upon the Convention relating to the Status of Refugees, signed in 1951 in Geneva. The current refugee crisis is causing distress in the definitions we used so far, and the European Union is elaborating new ways to define refugees and economic migrant. In the following brief, the international definition of the three will be provided, pointing out how the theoretical definition is not efficient in the current situation. An analysis of the Commission proposal to establish a common Safe County of Origin List will follow, stressing how it is changing the definition of refugee and economic migrant.

International Definitions: a Theoretical and Practical Assessment

There is no international shared definition of migrant. Nevertheless, it is commonly used as an umbrella term to define people leaving what is consider their home, to move to another city, country or region. (3) Two main subcategories of it are forced migrants and economic migrants, the discrimination being the reason for the migration itself, hereafter referred to as ‘push factor’. The International Association for the Study of Forced Migration defines forced migration as ‘a general term that refers to the movements of refugees and internally displaced people (those displaced by conflicts) as well as people displaced by natural or environmental disasters, chemical or nuclear disasters, famine, or development projects. (4) There are various terms used to describe the different groups of forced migrant. According to the UNHCR, these groups are: (5) refugees, asylum seekers, internally displaced persons (IDPs) (6), and stateless persons. (7)

In this paper, we will mainly focus on the categories of refugees and asylum seekers, having them a leading role in the current crisis. The meaning of these two terms is not always self-evident and they are not necessarily mutually exclusive. In the 1951 Geneva Convention (8) a refugee is defined as ‘a person who is outside his or her country of nationality or habitual residence; has a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail him— or herself of the protection of that country, or to return there, for fear of persecution’. (9)

Governments determine whether a person is a refugee, designating a National Commission to assess applications and decide whether they meet the criteria outlined in the Convention. (10) An asylum seeker is defined as someone who crossed his or her country border looking for protection, whose claim for refugee status has not yet being determined. A key feature of the 1951 Convention is the principle of non-refoulement, which obliges the signatory countries not to return a refugee to a territory where he or she would be at risk of persecution. (11) This is particularly important to understand the reason why countries are so keen in distinguish between economic migrants and forced migrants. Economic migrant is not a legal definition, rather a broad term, aiming at defining all the persons who are voluntarily choosing to leave their countries to improve his or her quality of life and economic conditions. Both economic and forced migrants use illegal migration routes, when they reach up to third countries borders not meeting the legal requirement for entry. However, forced migrants illegally crossing a country’s border are not considered ‘illegal’ as they are travelling for the purpose of applying for asylum and therefore they can not be prevented from entering a country, as this would amount the refoulement. On the other hand, economic migrants illegally entering a country are considered illegal (or irregular) migrant and can be pushed back or expelled. (12)

In spite of a precise international theoretical definition of the refugee and economic migrant categories, the difference between them is more nuanced in practice, as individuals have multiple and overlapping motivation for leaving their origin countries. Many economic migrants have experienced political difficulties in their country. Similarly, most refugees have an economic cause along with the immediate situation they are escaping from. What is more, push factors my change during the migration experience. For example, more then 4 million Syrians have found safety in neighboring countries; however, these countries failed to provide a full legal status and therefore opportunities for them to have a normal social life and economic stability. This is pushing many to continue their journeys to Europe, in the quest for better living conditions. (13) In the same way, many sub-Saharan nationals who migrated to Libya for economic reasons were then forced to Europe due to the outbreak of the Libyan war in 2011. (14)

Overall, it is problematic to describe with macro-categories a phenomenon that is in fact individual. For this reason, the Geneva Convention suggests individual assessment as the preferred approach. In practice, this means that a migrant, if he or she asks for protection after crossing European borders, becomes automatically an asylum seeker. The status of an asylum seeker stands until the end of the assessment process, which could include an appeal against a negative decision of the National Commission. If the National Commission is in favor of the eligibility application, then the asylum seeker is recognized as refugee. The whole assessment process is individual, and none can be considered as refugee before the Commission’s positive response.

The rapid acceleration in the number of migrants reaching up to the European borders, made it hard for EU countries to assess individually each asylum claim they would receive by welcoming allegedly asylum seekers onto EU territory. For this reason, recent debates have focused on a a priori approach, defining some nationals, i.e. Syrians, Eritreans, Somalis, as refugees and some other as not refugees. This allows the Member States to handpick migrants and divide asylum seekers into different categories, with national of certain third countries warranting less favorable procedural treatments.

European Union’s Safe Country of Origin List (SCO)

In May 2015, the European Commission adopted the European Agenda on Migration, (15) the first comprehensive political document outlining priorities in migration, asylum and borders policies. The commission proposed to strengthen the Safe Country of Origin (SCO). The concept of SCO has been first outlined in the Annex II to the Asylum Procedure Directive, adopted in 2005. According to it ‘a country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict’. (16) The countries included in the list are presumed to be safe to live in and the right to apply for asylum is guaranteed. The main aim of the safe country of origin list was -and is- to prevent abuses of EU and national asylum system and ‘support the swift processing of asylum application from countries designated as safe’. (17) At that time, a group of Member States proposed to adopt a common European list of safe countries, but the idea was dropped after long discussion and no agreement over the countries to include. Since then, Member States are allowed to designate third countries as safe in national lists, as no consensus was achieved over the countries to include in an EU common list. (18)

The concept of Safe Country of Origin is different from that of Safe Third Country: while the first one describes a country in which is own citizens are not persecuted, the second one refers to countries where asylum seekers and refugees are well protected. The Safe Third Country concept is mainly used to rule about the admissibility of an asylum application, given that the asylum seeker could have presented the request in some other country. This concept is the base of the Dublin regulation, which determines that the country responsible to analyze the asylum request is the one where the migrant first arrives. (19)

In the 2015 European Agenda on Migration, the Commission made broad use of the concept of Safe Country of Origin. In particular, it often references the category of ‘those in clear need of international protection’. This category is addressed when talking about the need to deal with the root causes of irregular migration. In the chapter Border management, the Commission stated that the measure proposed will ‘increase the efficiency of bona fide third country travelers, whilst at the same time strengthening the fight against irregular migration’. (20) In September 2015, as anticipated in the Agenda on Migration, the European Commission presented a proposal for a regulation establishing a common European Safe Country of Origin list. It suggests that Western Balkans countries –i.e. Albania, Bosnia and Herzegovina, Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia and Turkey- be included in a common EU SCO list, while the Commission might decide to include further countries in the future. (21) The list only creates a presumption of safety, as it does not ‘dispense with the need to conduct an appropriate individual examination of the application’. (22)

As outlined in the Explanatory Memorandum, the EU common SCO list’s implementation has a twofold aim. First, it attempts to increase the overall efficiency of the member states’ asylum system, by facilitating the assessment of applications likely to be unfolded. As far as the Commission is concerned, this does not mean that all applicants from these countries will be automatically refused, but the impact of this list over the National Commissions behaviors as well as the attitude of the border patrolling police towards nationals coming from allegedly safe country is yet to be assessed. As no data is available yet, we can just presume that the right of individual examination of the application will be hard to ensure. Secondly, the proposal aims at reducing the divergence between the national Member States’ lists of safe countries, deterring secondary movements inside the Union for applicants who might seek to reach a member state based on a perceived higher chance of being granted protection. However, the proposal leave the option for Member States to retain or introduce national legislation for national designation of countries considered safe beyond the one included the common EU list. Thus, this will be an instrument of minimum harmonization. This is further supported by the fact that there was already a spread consensus over the safety of Western Balkans’ countries (see Table 1 in the attached documeent). Turkey is the exception: as of today, only Bulgaria considered it as a safe country.

Besides failing in meeting its declared aims, it is unclear how the proposal will help solve the current European migrant crisis. Although it could reduce the incoming influx of migrants and facilitate the assessment of the applications, its implementation comes with a high risk of asylum seekers’ rights violation. Amnesty International’s Iverna McGowan underlined that ‘refugee status determination is based on people’s individual circumstances, which means no country of origin can be deemed safe as such. The application of a safe country of origin notion risks precluding whole groups of people in need of international protection from obtaining refugee status, and ultimately result in refoulement’. (23) Nationals coming from allegedly Safe Countries will hardly cross the EU’s border to seek for asylum, as the border police would give priority to ‘prima facie’ refugees. Then they will have to produce stronger documentation to endorse their case in front of the National Commission. Lastly, they will not be guaranteed the right to an appeal with the automatic suspensive effect, therefore they will not have the right to remain on the EU territory during the appeal against a negative National Commission decision. (24) This increases the risk of violations of the principle of non-refoulement, as an applicant might be recognized as refugee when he or she has already been expelled from the EU territory. In addition to that, the Commission’s proposal sparks concerns about the countries assessment: the Europen Council on Refugees and Exiles (ECRE) considered that ‘the Commission does not provide appropriate justification for the proposed inclusion of the countries listed’. (25) In particular, the Commission did not provide benchmark or a precise list of the criteria that will be used in the future to add new countries.

Conclusions

The discussion over the categories of refugee, asylum seeker and economic migrant has dominated the media and political discourse in the last year. Although the Geneva Convention provided with a precise theoretical definition of them, the observation of the migration flux showed how the distinction between the three is more nuanced in practice. In addition to that, the ongoing migration flux is a mixed one and it is hard, not to say impossible, to distinguish who is an economic migrant and who is a forced migrant. On the other hand, States and governments need to determine and define the nature of the migration influx, as it affects also national legislation and social policies toward the migrants themselves. The current situation makes the debate around the definition of asylum seekers, refugees and migrants utterly unhelpful. (26) It is inconceivable to collectively label an experience that is, overall, an individual one. Then again, during the mass movement of migrants, individual evaluation is not a viable solution to assess whether or not a migrant can be considered as a refugee.

In an effort to emerge from this chaos, the European Commission proposed to adopt a single EU’s Safe Country of Origin List in an attempt to define the categories of refugee, asylum seeker and economic migrant a priori. This is somehow the result of the recent mass refugee movement, which lowered the EU capacity to conduct individual asylum interviews for everyone who has crossed an EU border. Besides, the EU has been struggling to find shared and accepted ways to handpick migrants, and leave the borders open only to the ‘prima facie’ refugees, while leaving behind those not considered in real need of protection. (27) Overall, the SCO list will severely affect the refugee concept, as we know it from the Geneva Convention. The individual assessment will most probably lose its significance over a general country assessment. This will have a whole series of unexpected consequences, first of all the division between first and second class migrants with the consequent high risk of abuses at the borders and then in the EU territory.

The current use of the refugee and economic migrant categories unveils the profound crisis the Geneva Convention is undergoing. Indeed, the Convention was adopted in times when such a massive migration flux could not be anticipated. The provided definition of refugee, asylum seeker and consequently economic migrant has proved to be unhelpful to elaborate policies and strategies to face the current migration crisis. The discourse and definition of these categories is not an abstract intellectual exercise; it is in fact the pillar and base of any State and government policies. The EU effort to solve this issue failed to give an answer to the underlining issue: today, who is a refugee?


Bianca Benvenuti graduated in International Relations. She specializes in forced migration, human rights and Middle East, with a focus on Turkey and the Kurdish issue. She is currently based in Istanbul where she collaborates with the Istabul Policy Centre.

Notes

(1) Amnesty International, World leaders’ neglect of refugees condemns millions to death and despair, June 15, 2015;

(2) UNHCR, Mid-Year Trends 2015, December 18, 2015, p.3;

(3) According to the United Nations, people who travel for purposes of recreation, visits, business, medical treatment or religious pilgrimage do not fall in this category, as well as people moving for less then 12 months;

(4) See Forced Migration Online;

(5) For the scope of this paper, we will not consider stateless persons nor IDP. For more information see UNHCR, Protecting Refugees and the role of UNHCR, September 2012;

(6) IDPs are persons who have not crossed an international border but have moved to a different region than the one they call home within their own country. UNHCR, Protecting Refugees and the role of UNHCR, September 2012;

(7) Stateless persons do not have a recognized nationality and do not belong to any country. UNHCR, Protecting Refugees and the role of UNHCR, September 2012;

(8) The Convention relating to the Status of Refugees is a United Nations multilateral treaty, signed in 1951 in Geneva. It gives a definition of refugees, setting out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum;

(9) Convention and Protocol Relating to the Status of Refugees, Article 1 a(1), 1951;

(10) In countries that are not party of international refugee instrument, UNHCR may determine a person refugee status and provide protection;

(11) “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.Convention and Protocol Relating to the Status of Refugees Article 33;

(12) For the scope of this research, we will only look at illegal border crossing. However, we should remember that migrants overstaying their visa or their residence permit are also considered as illegal or irregular. In this case, the government can expel the migrant, assuming it is not going against the principle of “non-refoulement”;

(13) N.Asli Şirin Öner and Deniz Genç, “Vulnerability leading to mobility: Syrians’ exodus from Turkey”, Migration Letters (Volume 12 No:3 pp.251-262);

(14) UNHCR, UNHCR concerned as sub-Saharan Africans targeted in Libya, August 26 2011;

(15) European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, a European Agenda on Migration, COM(2015) 240 final, May 13, 2015;

(16) Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, December 1, 2005, Annex II;

(17) European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, a European Agenda on Migration, COM(2015) 240 final, May 13, 2015, p.13;

(18) Only 12 EU countries implemented a national safe country of origin list. For a detail see European Commission, Background Information, An EU Safe Countries of Origin List, 2015;

(19) Directive 2013/32/EU of the European Parliament and of the Council of the 26 June 2013 on common procedures for grating and withdrawing international protection (recast), Art. 38. As observed in the previous part, the concept of Safe Third Country is the base of the Dublin Regulation;

(20) European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, a European Agenda on Migration, COM(2015) 240 final, May 13, 2015, p.11;

(21) As stated in the Proposal, ‘priority will be given to third countries from which originate a significant number of applicants for international protection in the EU, such as Bangladesh, Pakistan and Senegal’, European Commission COM(2015) 452 final, Proposal for a regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, September 9, 2015, p.6;

(22) European Commission COM(2015) 452 final, Proposal for a regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, September 9, 2015, p.11;

(23) Amnesty International, EU: Action not words needed to end suffering of thousands, September 14, 2015;

(24) The automatic suspensive applies in cases of appeal against the National Commission decision over the protection request assessment, allowing the asylum seeker to stay in the country territory until the end of the appeal process. The question weather or not asylum appeals should automatically have a suspensive effect is controversial and complex in particular in relation to accelerated procedures. According to the Asylum Procedure Directive, Article 31 (8), Member States may provide an accelerated examination procedure if the applicant is from a safe country of origin. Then, according to Article 46(6), in the case of decision considering manifestly unfounded in accordance with Article 31 (8), a court tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State. Now, there are no data available over the National court tribunal practice in this sense. Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection (recast), June 26, 2013;

(25) European Council on Refugees and Exiles, ECRE comments on the Proposal for a Regulation of the European Parliamente and the Council establishing an EU common list of safe countries of origin and amending the recase Asylum Procedure Directive (COM(2015)452), October 2015;

(26) As pointed out from Yazgan, Utku and Sirkeci “[…]countries and political parties trying to address the current crisis by shifting through the registration documents and trying to categorize people as refugees and not so refugees are in a futile play.[…]There are hundreds of studies, qualitatively showing that there are almost always multiple motivation for migration. More to the point, these motivation may change over the course of the move as people move spatially and over time.[…]The response should cover improving economic, political, and cultural wellbeing. Mending just one aspect will not settle the issue.” Pinar Yazgan, Deniz Eroglu Utku, Ibrahim Sirkeci, “Migration Letters” (Volume 12 No:3 p.182);

(27) The EU Parliament defined the ‘prima facie’ refugees as nationals escaping conflict or generalized violence, for whom is not necessary to hold an individual interview as it is generally evident why they have fled.