“It is not a legislative proposal in the strict sense of the term,” Eric Mamer, the commission’s spokesperson, told reporters earlier this week.
That distinction comes despite past declarations by the commission that such ideas may undermine the fundamental right of asylum in the EU.
Ylva Johansson, a socialist from Sweden who is EU migration commissioner, once said it would “send a strong and wrong signal to the outer world.”
And an EU commission spokesperson have also in the past made similar comments.
“It is not possible under existing EU rules or under the proposals of the new pact on migration and asylum,” reporters were told in 2021, referring to plans by Denmark and the UK to have their asylum claims processed in Rwanda and by Rwandan authorities.
The mood music has now shifted ahead of the June elections amid a wider fear that the far-right will gain seats.
“When you become far-right in order to deal with the far-right, then you’ve lost and they have won,” said Irish liberal Renew Europe MEP, Barry Andrews, of the EPP proposals on asylum.
Safe third-country
The commission is now evoking the concept of a safe third-country. So too is von der Leyen, when pressed on the EPP plans.
“Whatever we do will be in full respect of our obligations under EU and international law. The concept of safe third-countries is not new. It is already established in the EU law,” she said, earlier this week.
The concept allows EU states to declare an asylum claim as inadmissible if conditions are met to receive international protection somewhere else. Today, those conditions appear rather strict and are spelled out in the EU asylum procedures regulation (APR).
The APR is part of the wider-overhaul of EU asylum rules agreed among the co-legislators in December. It says EU states would not be allowed to send anyone to Rwanda, for instance, unless they have a connection.
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But the same regulation has introduced a backdoor, allowing a future European Commission to strip out those connections and safe third-country criteria altogether.
A clause embedded in article 79 of the APR makes this possibility clear. It says the commission will review the concept of safe third-country. And it also says the commission can make any changes it sees fit.
Those changes can be made within one year of the entry into force of the regulation. This would fall under the next European Commission and one which von der Leyen hopes to lead.
Perverse incentive
Civil society advocates say countries in Africa and elsewhere have no interest in being designated as a safe place to offshore Europe’s asylum.
“They keep standards low so that Europe does not outsource its responsibilities to them,” said Catherine Woollard, who heads the Brussels-based European Council on Refugees and Exiles (ECRE), in comments made earlier this year.
It means countries are delaying the creation of protection systems out of fear of being designated safe. And ECRE says the concepts undermine the Refugee Convention, as the cornerstone of International Refugee Law.
They also say it is incompatible with the EU treaty requirement article 78, which requires the EU’s common policy on asylum to be “in accordance with” the Refugee Convention.
