21 February 2013
Members of the
Committee on Civil Liberties, Justice and Home Affairs (LIBE)
Brussels and Paris, 21 February 2013
As discussions on the Asylum Procedures Directive and the suspension/safeguard clause for visa-free travel resume, we would like to draw your attention to an acute problem and to a possible solution that is in your hands.
The problem is the sharp rise in unfounded asylum applications from citizens of five Western Balkan countries that were granted visa-free travel in 2009/2010.
Our proposed solution is to insert the following text in the Asylum Procedures Directive:
"Countries that have successfully completed a visa liberalisation dialogue with the European Commission, having met all the requirements and benchmarks under such a dialogue, including those related to fundamental rights under Block 4, and for which the visa requirement was lifted subsequently, shall be regarded as constituting safe countries of origin for the purposes of this Directive."
The number of Western Balkan asylum applications in the EU in 2012 currently stands at 41,500. This is 60 percent more claims than in 2011. It is 320 percent more than before visa liberalisation.
In Germany, citizens of Serbia made up the largest group of claimants in 2012. At the same time, only 0.2 percent qualified for refugee status or subsidiary protection.
This situation raises an obvious question: Why are application numbers increasing despite it becoming ever more obvious to applicants that chances to be granted protection are miniscule?
In a recent ESI report "Saving visa-free travel" we argued that the main incentives for applicants are in fact the benefits provided during the application procedure itself and the length of the procedure.
In the report we show that Western Balkan asylum seekers overwhelmingly target EU member states with long procedures: Germany, Sweden, Belgium and Luxembourg.
In these member states, the first-instance procedure takes around 3 months, and as much as 7 months in case of an appeal.
On the other hand, member states which decide on claims quickly, within less than 3 weeks, have experienced no, or a much smaller, increase. Shorter procedures also mean lower burdens on the recipient countries.
This discrepancy explains why there has been a sharp increase in Germany and not in Austria; in Sweden and not in the Netherlands; in Belgium and not in France (until a court forced France last year to abandon the accelerated procedure for Albanian applicants).
Switzerland could reduce the number of applications dramatically by shortening the duration it takes to process applications. In August 2012, it cut the decision-making time from 4 months to 4 days. Asylum applications from Western Balkan citizens fell from 780 in August to 65 in December.
Recent developments in Germany confirm the finding that a short procedure is key. Germany made a concerted effort between October and December 2012 to process Western Balkan claims, bringing the average decision-making time from 3 months down to 9 days. Claims dropped from 6,600 in October to 1,000 in December.
The opposite trend has also been observed. In March 2012, Albania was taken off the French list of safe countries of origin. The decision-making time increased from 3-4 weeks to some 6 months. The number of Albanian claims in France rose from 500 in 2011 to 2,300 in 2012 (without December).
It is important to note that a shorter procedure does not minimise the chances to receive international protection for those who are found to need it. In fact, the contrary is true: some countries with shorter procedures and fewer applications granted protection to Western Balkan asylum seekers a lot more often than those with long procedures.
Austria and France (with short procedures) decided on 6,785 cases, granting refugee status or subsidiary protection to 435 claimants between 2009 and 2011. Germany and Sweden (both with long procedures) decided on 27,220 cases, granting refugee status or subsidiary protection to no more than 55 claimants.
If a short asylum procedure is crucial to resolve this problem, how can it be brought about?
The first step is to designate countries that receive visa-free travel as a result of a formal visa liberalisation process as safe countries of origin.
All visa liberalisation roadmaps and action plans require implementation of anti-discrimination legislation. They also require policies protecting minorities. A country that fully meets these requirements – as verified by the Commission and member states' experts – can be assumed to be a safe country of origin.The notion of a safe country of origin is nothing new. Many EU member states have national lists of safe countries of origin. This concept is also already established at the EU level. EU member states consider each other safe countries of origin:
"Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters." (Protocol No. 24 of the TFEU)
Bulgaria and Romania were declared safe countries of origin two years before they acceded to the EU:
"It results from the status of Bulgaria and Romania as candidate countries for accession to the European Union and the progress made by these countries towards membership that they should be regarded as constituting safe countries of origin for the purposes of this Directive until the date of their accession to the European Union." (Current APD, recital 20)
If the countries that have undergone a formal visa liberalisation process are declared safe countries of origin, EU member states can provide for an accelerated examination procedure when dealing with claims from their citizens.
The proposed new text for the Asylum Procedures Directive also stipulates that "member states shall lay down reasonable time limits for the adoption of a decision in the procedure at first instance." The decision-making should be short – certainly less than 1 month in the case of safe countries of origin. All procedural guarantees protecting the rights of asylum seekers would still apply.
In 2011 the Commission proposed to introduce in Council Regulation 539/2001 the possibility to suspend visa-free travel in a fast-track procedure. This foresees that if a member state is confronted with (a) an increase in irregular migrants, (b) an increase in largely unfounded asylum claims, or (c) an increase in rejected readmission requests, it can request a suspension of visa-free travel with the third country.
The currently agreed text stipulates that the request of a member state must be addressed to the European Commission. It must be "duly motivated and shall include relevant data and statistics as well as a detailed explanation of the preliminary measures that the Member State concerned has taken with a view to remedying the situation."
ESI suggests expanding this section. One of the "preliminary measures" member states should take is to accelerate the asylum procedure:
"This notification shall be duly motivated and shall include relevant data and statistics as well as a detailed explanation of the preliminary measures that the Member State concerned has taken with a view to remedying the situation. In case of an increase in largely unfounded asylum requests, these measures shall include an accelerated asylum examination procedure for the nationals of the third country in accordance with the basic principles and guarantees on common procedures for granting and withdrawing international protection status."
This should also be one of the issues taken into account by the Commission when it examines such a request:
"3. The Commission shall examine the notification(s) made by one or more Member State(s) pursuant to paragraph 2, taking account of:
[...] whether the Member State(s) in question have taken all the available and necessary measures at the national level in order to remedy the situations described in paragraph 2, and, in case of the situation described in paragraph 2 (b), have accelerated the asylum examination procedure for the nationals of the country in question in accordance with the basic principles and guarantees on common procedures for granting and withdrawing international protection status."
We are convinced that these measures would contribute to reducing the high numbers of unfounded claims from Western Balkan citizens without restoring the visa requirement for the Western Balkans.
For further information, we invite you to look at a compilation of up-to-date statistical material on the issue of Western Balkan asylum seekers on the ESI webpage: www.esiweb.org/visaandasylum.