Author
An asylum request can be declared manifestly unfounded in case the asylum seeker is from a safe country of origin.[1] 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 they have no well-founded fear of persecution and does risk of treatment contrary to Article 3 ECHR. However, the IND has to assess in every individual case whether, based on the applicant’s 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 them. In that case, the IND has to assess whether the asylum seeker is eligible for international protection.[2]
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 their 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 Secretary of State communicated at the end of 2015 the intention to draft a national list of safe countries of origin.[3] 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. In 2022, it has also been added to the Aliens Circular. The list contains countries in which, according to the Dutch government, nationals are under no risk of persecution, torture or inhuman or degrading treatment. Following a judgement from the Council of State from April 2021,[4] the Secretary of State had to reassess the list of safe countries of origin. The Council ruled that the IND had to reassess the list every two years and that this reassessment should be carried out through the same procedure used for the designation of a country as a safe country of origin. This reassessment replaced the ‘quick reassessment’ that was normally carried out by the IND and focused only on sources from the US State Department and Freedom House – only if these sources showed significant changes in the country, the IND would carry out a ‘full reassessment’ consulting all sources stated by Article 37(3) Procedures Directive. The period of mandatory reassessment was completed on 4 November 2021, resulting in cancelling Algeria[5] as a safe country of origin and adding some groups of exemption and groups of special attention to the designation of Mongolia,[6] Morocco, Tunisia and Georgia as safe countries of origin.[7] In addition, the Secretary of State decided to shorten the list of safe countries of origin in order to lower the periodical efforts to reassess their situation. Twelve countries – from which an extremely limited number of asylum seekers arrives – were deleted from the list: Andorra, Australia, Canada, Iceland, Japan, Liechtenstein, Monaco, New Zealand, Norway, San Marino, Vatican City and Switzerland.[8] All countries of origin still need to be reassessed every two years. In addition, the IND needs to constantly monitor whether there are signs that a change of situation for the worse is taking place in a country designated as a safe country of origin.
On 14 December 2021, the temporary suspension of India as a safe country of origin was reassessed. India has then again returned to its designation as a safe country of origin, with the exception of the union territory of Jammu and Kashmir and with the exception of religious minorities, such as Muslims and Christians, as well as Dalit women and girls and journalists. In addition, special attention has to be paid to those who have been critical of government and government policy and have encountered problems as a result, including, for example, human rights activists, academics and protesters.[9]
As of 1 January 2023, the following countries have been designated safe countries of origin:[10]
- EU Member States
- Albania
- Armenia*
- Bosnia-Herzegovina
- Brazil*
- Georgia *
- Ghana*
- India *
- Jamaica*
- Kosovo
- The republic of North Macedonia
- Morocco *
- Mongolia*
- Montenegro
- Senegal *
- Serbia *
- Trinidad and Tobago*
- Tunisia*
- United States of America
- Ukraine *
* Some groups are exempted from the designation of safe country of origin, cases will be dealt with in Track 4 (for example: LGBT persons in Trinidad and Tobago, Tunisia, Senegal, Jamaica, Brazil, Armenia and Morocco).
Due to recent developments with Russia, the designation of Ukraine as a safe country of origin has been suspended until February 28, 2023.[11] Until then, the safe countries of origin concept will not be applied to Ukrainian asylum seekers. The United Kingdom has been deleted from the list on 8 February 2023, as very few people from the UK apply for asylum in the Netherlands.[12]
Following the coup that took place in Tunisia in the summer of 2021, numerous Regional Courts requested the Secretary of State to reassess the designation of Tunisia as a safe country of origin.[13] On 20 December 2021, the Secretary of State announced that Tunisia would remain a safe country of origin because the short thematic official message of 14 December 2021 shows that the political events in Tunisia have not led to (major) changes in the security and human rights situation.
Application of the concept of safe country of origin
The Secretary of State can designate a country as a safe country of origin, while exempting specific groups such as LGBT individuals or women or specific areas such as the union territory of Jammu and Kashmir in India. According to the Council of State, exempting specific areas is only allowed if there is a clear dividing line between the safe and no-safe part of the country.[14] In these cases, the safe country of origin-concept and the fast rejection Track 2 cannot be regarded as such for a specific group or people from a specific area. Those belonging to this group are not faced with an increased burden of proof.
On 25 May 2022, the State Secretary decided for procedural and economic reasons to no longer use the ‘groups with higher concern’ in response to a ruling of the Council of State.[15] The Council of State had ruled that the consequences of designating a specific ‘group with higher concern’ for the assessment framework are unclear and that the Secretary of State should either give a substantial interpretation to this concept or abolish it. All groups with higher concern will henceforth be treated as exception groups.
[1] Article 30b(1)(b) Aliens Act.
[2] Paragraph C2/7.2 Aliens Circular.
[3] KST 19637, 3 November 2015, No 2076.
[4] Council of State, ECLI:NL:RVS:2021:738, 7 April 2021.
[5] KST 19637, No 2743, 11 June 2021.
[6] KST 19637, No 2778, 4 November 2021.
[7] KST 19637, No 2726, 6 May 2021.
[8] KST 19637, No 2778, 4 November 2021.
[9] KST 19637, No 2807,14 December 2021.
[10] In comparison to 2020, India and the United Kingdom were added to the list, while various countries were not included anymore: Algeria, Andorra, Australia, Canada, Iceland, Japan, Liechtenstein, Monaco, New Zealand, Norway, San Marino, Vatican City and Switzerland.
[11] KST 19 637, no. 2822, available in Dutch at: https://bit.ly/3WmZUDJ; and KST 19637, no. 2982, available in Dutch at: https://bit.ly/3hUF8fs.
[12] Stcrt 2023, nr. 3235, available in Dutch at: https://bit.ly/3YvewS4.
[13] E.g. Regional Court Haarlem, 26 November 2021, ECLI:NL:RBDHA:2021:14730.
[14] Council of State, ECLI:NL:2017:1838, 7 July 2017.
[15] KST 19637, no. 2894, available in Dutch at: https://bit.ly/3Vn7Tzf. Council of State, ECLI:NL:RVS:2022:985, 5 April 2022.