This post examines Case C-134\/23, where the CJEU ruled that asylum claims cannot be deemed inadmissible if readmission to a safe third country is unfeasible. The decision represents progress in ensuring access to asylum procedures, but it highlights persistent flaws in the EU system of remedies.<\/p>\n\n\n\n\n\n\n\n
On 4 October 2024, the Court of Justice delivered its judgment in Case C-134\/23 <\/a>Elliniko Symvoulio<\/em><\/a>, concerning the Greek designation of Turkey as a \u2018safe third country\u2019 for the purposes of international protection. The case shows that the EU\u2019s inadequate response to the so-called \u2018refugee crisis\u2019 continues to echo in legal challenges across its courts. Central to the EU\u2019s response in 2016 was the controversial EU-Turkey Statement<\/a>, which provided that Turkey would accept the return of asylum seekers from Greek islands in the Aegean Sea. The process was facilitated by Greece designating Turkey as a \u2018safe third country\u2019. The concept, as provided by Article 33(2)(c) of the Asylum Procedures Directive<\/a>, allows Member States to declare the applications for international protection inadmissible without examining their merits, based on the assumption that asylum seekers can seek protection elsewhere.<\/p>\n Despite Turkey ceasing to accept asylum seekers from Greece in 2020, Greece renewed its designation of Turkey as a \u2018safe third country<\/a>\u2019 in 2021. This designation was eventually challenged before the CJEU in C-134\/23 Elliniko Symvoulio.<\/em>Confronted with the reality of Turkey\u2019s lack of cooperation, the Court ruled that Member States cannot declare an asylum application inadmissible on the basis of the \u2018safe third country\u2019 concept, if it is \u2018established\u2019 that the designated country will not allow asylum seekers to enter its territory. While civil society has welcomed the decision<\/a>, the Court\u2019s stance on safe third countries remains ambivalent. The Court in fact upheld that a country can still be designated as \u2018safe\u2019 even if, contrary to its legal obligations, it has generally and indefinitely suspended the admission or readmission of asylum seekers.\u00a0<\/p>\n This underwhelming victory provides the opportunity to reflect on the flaws in the EU system of remedies that sorely persist and that had already emerged in the case of the EU-Turkey Statement.<\/a> In this post, I will analyze some of them.<\/p>\n The EU-Turkey Statement: informality barring justiciability<\/strong><\/p>\n The EU-Turkey Statement was signed in March 2016 and published as a press release<\/a> by the European Council. The Statement consisted of a list of commitments from the two parties accompanied by a lip service to the respect of international law<\/a>. The agreement provided for the EU and its Member States to allocate \u20ac3 billion (later increased to \u20ac6 billion) to the Facility for Refugees in Turkey<\/a>. Moreover, a one-to-one resettlement arrangement was designed, according to which, for every Syrian national returned to Turkey from the Greek islands, another Syrian national would be resettled from Turkey to the EU. EU Member States promised \u2013 as a return \u2013 to expedite the visa liberalization process for Turkish citizens and to revitalize the debate on Turkey\u2019s accession to the EU. In the agreement, migrants were thus reduced to a bargaining chip for the interest of the two parties.<\/p>\n To date, it is rather unclear whether the Statement is an international treaty concluded by the EU and Turkey within the scope of the Vienna Convention on the Law on Treaties<\/a> or a soft law instrument<\/a> concluded between the Member States and Turkey. Its undefined nature has barred the route for judicial review. The General Court <\/a>has in fact declined its competence in reviewing the Statement asserting that \u2018the EU-Turkey Statement, as published by means of Press Release No 144\/16, cannot be regarded as a measure adopted by the European Council, or, moreover, by any other institution, body, office or agency of the European Union, or as revealing the existence of such a measure that corresponds to the contested measure\u2019. This position was upheld by the Court<\/a> of Justice on appeal, stating that the agreement was an affair between the Heads of State or Government of the Member States of the EU with their Turkish counterpart. The CJEU\u2019s position has been highly contested<\/a>: first, the Statement refers to EU law issues such as visas (regulated by the Visa Code<\/a>). Second, it clearly had legal effects on the factual and legal position of migrants, as recognized by the ECtHR. In particular, in <\/a>J.R. and others v Greece<\/em><\/a>, the ECtHR partly relied on the implementation of the EU-Turkey Statement to conclude that the detention measure contested in the case had a legal basis in domestic law.<\/p>\n The Greek practice: asylum seekers in a limbo<\/strong><\/p>\n The implementation of the Statement and the consequent possibility to move the commodified migrants across borders was facilitated by the designation of Turkey as a \u2018safe third country\u2019 by Greece. According to Article 38(1) of the Asylum Procedures Directive, a country can be considered a \u2018safe third country\u2019, if Member States are satisfied that certain guarantees are ensured for asylum seekers in that country. The following conditions must be met:<\/p>\n (a)\u00a0\u00a0 \u2018life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion\u2019;<\/p>\n (b)\u00a0\u00a0 \u2018there is no risk of serious harm as defined in\u2019 the EU Qualification Directive<\/a>;<\/p>\n (c)\u00a0\u00a0 \u2018the principle of non-refoulement in accordance with the [Refugee] Convention<\/a> is respected\u2019;<\/p>\n (d)\u00a0\u00a0 \u2018prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected\u2019; and<\/p>\n (e)\u00a0\u00a0 \u2018the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention\u2019.<\/p>\n As widely documented<\/a> over the years, these conditions may not be considered as fulfilled<\/a> in the case of Turkey. As proof of that, the ECtHR has, for example, found Turkey to be forcibly returning migrants to Syria despite significant risks (Akkad v Turkey<\/em><\/a>) and violating the migrants\u2019 right to life and the prohibition of torture, inhuman and degrading treatment (J.A. and A.A. v Turkey<\/em><\/a>)<\/a>.<\/p>\n Despite such critical concerns, Greece retained Turkey as a safe third country in its 2021 designation<\/a>. The policy choice crystallized a dire situation: figures show that between 2021 and 2023 Greece has found over 10,000 asylum claims inadmissible<\/a>, considering Turkey a \u2018safe third country\u2019 for asylum seekers. In practice,<\/a> Greek authorities first rejected these applications for international protection and then, at the stage of enforcing the decisions, approached Turkey to ascertain whether the relevant applicant was in fact permitted to enter Turkish territory. As Turkish authorities since 2020 have systematically failed<\/a> to respond to all requests, Greek authorities left applicants to wait before concluding that readmission was not possible. At this point, it was for the asylum seeker concerned to submit a new application for international protection since, under Greek legislation<\/a>, the competent authorities are not required to resume ex officio<\/em> the examination of the application for international protection. Moreover, reports show<\/a> delays in registering the re-applications and other hurdles faced by asylum seekers, because authorities do not believe that the refusal of readmission was a new element or finding, as required by law for repeated applications for international protection.\u00a0<\/p>\n Challenging the \u2018safe third country\u2019 concept before national courts: the background to C-134\/23 Elliniko Symvoulio<\/em><\/strong><\/p>\n A first attempt to challenge the designation of Turkey as a \u2018safe third country\u2019 was made in February 2017, when the Greek Council of State<\/a>, the Supreme Administrative Court of Greece, decided against the appeals of two Syrians who were claiming that Turkey was not a safe third country for them to be returned to. On that occasion, the lawyers representing the two applicants asked the Council of State to submit a preliminary reference to the CJEU regarding the definition of Turkey as a \u2018safe third country\u2019. With a slim majority of 13\/12, the Council ruled <\/a>that there was no reasonable doubt on the meaning of \u2018safe third country\u2019 under EU law and thus that there was no need to request a reference. This outcome was unsurprising for several reasons. First, Greece has one of the lowest rates of preliminary references to the CJEU among Member States, with its Supreme Court having even faced criticism from the ECtHR<\/a> for insufficient reasoning in rejecting such referrals. Second, the inherently political nature of the EU-Turkey Statement may have influenced the judiciary\u2019s reluctance to escalate the matter. This reluctance to invoke the EU judiciary highlights a troubling reality: the ability to seek clarity or accountability through the EU legal framework is far from guaranteed, even when the contested national practice is tightly linked to an agreement bearing the \u2018EU\u2019 label.<\/p>\n Notably, despite the crucial position of Greece in the EU for migration in the last decade, Case C-134\/23 Elliniko Symvoulio <\/em>marks the first time that the CJEU has been asked any questions about EU asylum law by a Greek court. Since 2017, however, the situation has dramatically changed. As mentioned, no readmission has taken place since March 2020 from Turkey, thus leaving asylum seekers in a legal limbo<\/a> (reports available in Greek here<\/a>). Under these circumstances, the Greek Council of State finally decided to refer the question to the CJEU<\/a> on how the \u2018safe third country\u2019 rule must be interpreted if readmissions do not take place. The referring national court put forward two possible interpretations. The first was that national law may not classify a third country as \u2018safe\u2019 for certain categories of applicants when that third country has generally suspended the admission or readmission of those applicants to its territory and there is no foreseeable prospect of change in that position. The second was that the impossibility of readmission to the third country was to be considered in the enforcement of the individual decision deemed inadmissible rather than from the moment of the general designation of a third country as \u2018safe\u2019.<\/p>\n The CJEU\u2019s decision in C-134\/23 Elliniko Symvoulio<\/em><\/strong><\/p>\n According to the Court of Justice, Article 38 of the Asylum Procedures Directive does not provide that the validity of a third country\u2019s designation as \u2018safe\u2019 is subject to the condition that the applicants for international protection will actually be admitted or readmitted to the territory of that third country (para 46). This interpretation overlooks the broader purpose of the \u2018safe third country\u2019 concept, which is the efficient processing of asylum claims. This efficiency can hardly be achieved if there is no realistic prospect of readmissions of asylum seekers taking place within a reasonable time. However, according to the Advocate General\u2019s Opinion on the case<\/a> (para 45) \u2013 whose reasoning was endorsed by the Court \u2013 the definitive refusal of readmission of asylum seekers (as opposed to mere uncertainty about whether it might happen) does not disqualify a country from being listed as a \u2018safe third country\u2019 because the Procedures Directive does not explicitly require consideration of the readmission issue at the time of designation. In my view, this interpretation clashes also with a literal reading of Article 38 of the Procedures Directive. The Article stipulates that Member States may apply the \u2018safe third country\u2019 concept, only<\/em> if their competent authorities are confident that applicants will be \u2018treated<\/em>\u2019 in accordance with the principles that are outlined in points (a) to (e) of the same provision. The glitch is, however, that, if the authorities of the allegedly \u2018safe third country\u2019 do not even take the trouble to \u2018treat\u2019<\/em> the applicants in any form, then the assessment whether such applicants are treated in accordance with the EU criteria becomes completely irrelevant.<\/p>\n Despite the Greek designation of Turkey as \u2018safe\u2019 being unaffected by the present judgment, the Court crucially held that (para 54):<\/p>\n \u2018where it is established that the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of Directive 2013\/32\u2019.<\/p>\n This stance, while to be welcomed for the protection accorded to asylum seekers, has already been incorporated in the new Asylum Procedure Regulation<\/a> (2024\/1348), which was adopted earlier this year. Recital 53 of its Preambles states that:<\/p>\n \u2018an application should not be rejected as inadmissible on the basis of the concepts of first country of asylum or safe third country where it is already clear at the stage of the admissibility examination that the third country concerned will not admit or readmit the applicant. Furthermore, if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation\u2019.<\/p>\n In its judgment, the Court also underlined that Member States may not unjustifiably postpone the examination of applications and must, inter alia<\/em>, \u2018ensure that that examination is conducted on an individual basis, in accordance with Article 10(3)(a) of that directive and in compliance with the time limits set out in Article 31 thereof\u2019 (para 54). Despite the judgment\u2019s major importance in its guarantees for asylum seekers\u2019 access to asylum procedures, the judgment nevertheless is undermined by its failure to clarify the criteria for determining a ‘safe third country’ and the procedures for verifying these criteria, both of which are essential for protecting asylum seekers’ rights. Indeed, the Greek designation of Turkey as \u2018safe\u2019 was not examined by the CJEU (para 40). This is due to the fact that the referring national court had rejected the plea of the applicant, arguing that Turkey does not comply with the \u2018safe third country\u2019 criteria, and therefore had not referred this matter to the CJEU. The Court of Justice therefore could not interpret those principles. This key missing point reflects how the use of the preliminary reference as a way to uphold rights is still heavily affected by its original nature as a dialogue between courts.<\/p>\n Concluding remarks<\/strong><\/p>\n The judgment marks a significant step forward in protecting asylum seekers by prohibiting national authorities from rejecting asylum applications as inadmissible when readmission to a third safe country is not feasible. However, it also represents a missed opportunity to clarify on how Member States must interpret the criteria to designate third countries as \u2018safe\u2019. This is particularly relevant as Member States are increasingly outsourcing their asylum responsibilities through controversial \u2018safe country\u2019 agreements \u00a0(see e.g. Italy-Albania<\/a>, UK-Rwanda<\/a>). Whether courts are the best actors to review the decisions on the safety of third countries is currently under debate<\/a>, but it must be acknowledged that the erosion of asylum rights is progressively occurring through preemptive barriers to access asylum procedures in Member States.<\/p>\n *This blog post is a repost from the European Law Blog.<\/p>\n","protected":false},"excerpt":{"rendered":" This post examines Case C-134\/23, where the CJEU ruled that asylum claims cannot be deemed inadmissible if readmission to a safe third country is unfeasible. The decision represents progress in ensuring access to asylum procedures, but it highlights persistent flaws in the EU system of remedies.<\/p>\n","protected":false},"author":289,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-9195","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/9195","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/users\/289"}],"replies":[{"embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9195"}],"version-history":[{"count":2,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/9195\/revisions"}],"predecessor-version":[{"id":9200,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/9195\/revisions\/9200"}],"wp:attachment":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9195"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9195"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9195"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}