Author
According to Article 2 of the International Protection Act, a safe country of origin means a country of which the applicant is a national or, being a stateless person, was formerly habitually resident in that country and the applicant has not submitted any serious grounds for considering the country not to be a safe country of origin in his particular circumstances. It is not clear how the second limb of this definition is applied in practice, as the designation of a country as safe for all nationals of that country seems to be an automatic and irrebuttable presumption. However, the IPA remarks that all procedural guarantees apply to such applicants.[1]
The Act also provides, by way of a Schedule,[2] the list of countries of origin considered safe. The last amendment to the list is dated from 2020 and included Bangladesh and Morocco. Currently the countries designated as ‘safe’ are: Algeria, Australia, Bangladesh, Benin, Botswana, Brazil, Canada, Cape Verde, Chile, Costa Rica, Egypt, Gabon, Ghana, India, Jamaica, Japan, Morocco, New Zealand, Senegal, Tunisia, United States of America, Uruguay, Member States of the European Union and EEA countries. The criteria as to which countries are listed/removed is unclear.
The Act provides that the Minister for Home Affairs may amend the list of countries specified in the Schedule by regulations, provided that only countries which in his opinion are countries of safe origin may be listed in the said Schedule. The Minister shall remove from the said Schedule any country which in his opinion is no longer a safe country of origin.[3]
Legal Notice 488 of December 2021 introduced a new provision in the Procedural Regulations which establishes that “the concept of safe country of origin can only be applied to those countries which have been designated as safe countries by the International Protection Agency and included in the Schedule to the Act.”[4] The Agency has not made any Declaration so far and it remains to be seen how this amendment will be implemented in practice.
Legal Notice 488 creates a legal anomaly whereby it seemingly conflicts with the provision of the Act designating the Minister as the entity responsible for the list of safe countries of origin. The Act does not authorise the Minister to delegate this power, and Legal Notice 488 does not speak of IPA’s decision to remove a country from the list of safe countries of origin. Considering the primacy of the Act over the Regulations and also considering the obligatory nature of an inadmissibility decision in relation to persons originating from safe countries designated safe, the only reasonable reading of the present legal situation is that applicants originating from countries of origin deemed safe by the Minister and included in the Schedule should have their applications automatically declared inadmissible.
The concept of safe country of origin is used to consider an application manifestly unfounded and trigger the automatic application of the controversial accelerated procedure (see Accelerated Procedure).
In S.H. v. Malta, the applicant noted that his claim had been rejected on the basis that Bangladesh was a safe country despite providing a large amount of evidence to dispel this presumption that Bangladesh was a safe place for him based on his specific situation, including his work as a journalist. The applicant further argued that the decision of the Minister to designate Bangladesh as safe was not in compliance with Article 31(8) of the EU Asylum Procedures Directive and evidently arbitrary, particularly. As the Government had failed to provide any information on the decisional process, including any information on the evidence relied upon to conclude that Bangladesh is a safe country of origin. The ECtHR declared that it did need to enter into the ministerial decision designating Bangladesh as a safe country, considering that the exceptions highlighted throughout the case went to show that a full individual assessment is nonetheless called for in certain circumstances, despite such designation.[5]
In 2022, 161 applications were rejected as manifestly unfounded on the basis that the applicants were coming from a safe country of origin. These were mainly applications submitted by nationals of Egypt (58), Senegal (33), Bangladesh (32) and Ghana (18).
In 2023, 149 applications were rejected as manifestly unfounded on the basis that the applicants were coming from a safe country of origin. These were mainly applications submitted by nationals of Bangladesh (111), Egypt (11), Algeria (7), Morocco (6), Senegal (4), Brazil (3), Ghana (3), India (3) and Tunisia (1).
[1] Ministry for Home Affairs, Security, Reforms and Equality, Feedback on the 2022 AIDA Country Report on Malta, shared with ECRE in January 2024.
[2] Schedule (Article 24) of the International Protection Act, Chapter 420 of the Laws of Malta.
[3] Article 24(4) of the International Protection Act, Chapter 420 of the Laws of Malta.
[4] Regulation 23(2) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[5] ECtHR, S.H. v. Malta, no 37241, 20 December 2022, § 62 and 91.