An asylum request can be declared manifestly unfounded in case the asylum seeker is from a safe country of origin. Applicants presumed to come from safe countries of origin are channelled under the Accelerated Procedure (“Track 2”) by the IND.
In case an asylum seeker is from a safe country of origin, it is presumed that he/she has no well-founded fear of persecution and does not run the risk of treatment contrary to Article 3 ECHR. However, the IND has to assess in every individual case whether, on the basis of the applicants statements, this country is indeed safe for the asylum seeker. In other words, the IND must consider whether the authorities of the applicants’ country of origin, in practice, comply with their obligations under the relevant human rights treaties.
The IND cannot maintain the presumption of safe country of origin if the asylum seeker demonstrates that his or her country of origin cannot be regarded as a safe country for him/her. In that case the IND has to assess whether the asylum seeker is eligible for international protection.
Should it become clear, during the Track 2 procedure, that the asylum seeker might have a well-founded fear for persecution (for example because of his or her sexual orientation), more thorough assessment by the IND is required. As a result, the asylum request is further assessed in Track 4. Switching from Track 2 to Track 4 may also occur when for example there is ample medical evidence which demonstrates that the asylum seeker is vulnerable and needs special procedural guarantees.
List of safe countries of origin
Anticipating an EU list of safe countries of origin, the State Secretary communicated at the end of 2015 his intention to draft a national list of safe countries of origin. As provided in the recast Asylum Procedures Directive and Article 3.105ba of the Aliens Decree, this national list was annexed to the Aliens Regulation. The list contains countries where, according to the Dutch government, nationals are under no risk of persecution, torture or inhuman or degrading treatment.
As of the end of 2018 the following countries have been designated safe countries of origin as of the. This list is still being applied in 2020.
- EU Member States and Schengen Associated States
- The republic of North Macedonia
- San Marino
- Vatican City
- New Zealand
- India (temporarily suspended)
- Trinidad and Tobago
In September 2020, tranches 2 until 5 were reassessed. As a result, the following changes were made to the list of safe countries of origin:
- India – a reassessment in 2020 showed such deterioration in circumstances that it was decided that the designation of India as a safe country of origin should be suspended.
- Togo – in December 2018, the State Secretary reassessed the situation in Togo. Awaiting further assessment, Togo was not regarded a safe country of origin. Reassessing in September 2020 the State Secretary decided to delete Togo off the list of safe countries of origin.
- Algeria – for certain groups of people Algeria is (no longer) regarded a safe country of origin: those who have been openly critical of the authorities and those who adhere to another faith than Islam or do not conform to the Sunni faith within Islam and have encountered problems as a result of that.
- Brazil – Brazil is not regarded a safe country of origin for LGBTI and journalists having reported on corruption, crime or having been openly critical of the authorities. They have been designated a group of higher attention.
- Morocco – Morocco is not regarded a safe country of origin for Hirak Rif-activists and journalists who have reported on the problematic situation in the Rif.
Application of the concept of safe country of origin
The State Secretary can designate a country as a safe country of origin, while exempting specific groups such as LGBTI or women. In that case, the safe country of origin cannot be regarded as such for a specific group. Those belonging to this group are not faced with an increased burden of proof. The Council of State concurred with the conclusion of the Advocate-General by establishing that a country can be designated a safe country of origin, while making an exception for one or more particular groups of people.
The State Secretary decided that a country can be designated as safe country of origin, even in case of a small unsafe region, provided that there is a clear division between safe and unsafe parts of the country. The Council of State concurred with this practice of the State Secretary under the condition that there is a clear dividing line between the safe and the non-safe part of the country.
The State Secretary stated that some groups may be designated as ‘groups of higher concern’ (mainly LGBT persons and persons originating from specific regions/areas). In practice, these groups have a less onerous burden of proof, but the presumption that their country of origin is “safe” is maintained. According to the Council of State the classification as a ‘group of higher concern’ does not imply an adjustment in the assessment framework, but merely aims to draw the attention of the decision-maker to the fact that the designation of a safe country of origin may not be enforceable in individual cases. The Council of State also considers this to be in line with the recast Asylum Procedures Directive.
Since the end of 2015, the Regional Courts have ruled in many cases concerning the question whether the abovementioned countries have been rightly designated as safe countries of origin. Most of these judgments concern the question whether the Secretary of State has, while referring to the required sources, sufficiently substantiated that the country can be considered to be a safe country of origin. In recent years the focus in jurisprudence has shifted somewhat to assessing whether an individual belonging to a group for which an exception has been made, or to a group of higher concern, may run the risk of treatment contrary to Article 3 ECHR.
Article 30b(1)(b) Aliens Act.
Paragraph C2/7.2 Aliens Circular.
KST 19637, 3 November 2015, No 2076.
KST 19637, 9 February 2016, No 2123; KST 19637, 11 October 2016, No 2241; KST 19637, 25 April 2017, No. 2314. The latest amendment added Brazil and Trinidad and Tobago.
KST 19637, nr. 2664, 30 September 2020
Council of State, 1 February 2017, ECLI:NL:RVS:2017:210
Council of State, 7 July 2017, ECLI:NL:2017:1838
For example see: Council of State, Decision No 201606592/1, 1 February 2017; Council of State, Decision No 20174170/1, 22 December 2017 and Council of State, Decision No 201700276/1, 8 March 2017.