On 2 July 2021, the Conseil d’Etat removed Senegal, Benin, and Ghana from France’s "safe country" list. The decision means that France no longer recognises these nations as being safe for LGBTQ+ persons. Refugees fleeing these countries for fear of persecution on the grounds of sexual orientation will enjoy greater protection from deportation during their asylum application. However, what is a positive development for the protection of asylum-seekers in France is also an occasion to re-evaluate the underlying mechanisms of the “safe country” concept (SCC).

Homophobia is far from being a new phenomenon in West African nations and homosexuality has been long time criminalised in Ghana and Senegal. Yet, these countries were considered safe by France for more than a decade, and are still considered so by a dozen European states. So, what made France change its stand while other states maintain theirs?

The purpose of “safe country” lists are not to provide a completely accurate account of safety. In fact, a true claim of objectivity would not only exclude the possibility of discrepancies amongst national lists, but it would also render the clear-cut categorisation (‘safe’/ ‘unsafe’) unworkable - reality being more complex. On the other hand, though veracity may not be its primary aim, the SCC happens to be a powerful administrative tool. Indeed, despite substantial shortcomings, it controversially facilitates enforcement of certain asylum policies.

THE SCC: CONCEPTUAL SHORTCOMINGS

Established in the late 90s out of the necessity for EU states to “manage" refugee flows, the SCC imposes a presumption on the claimant not to qualify as a refugee under the Refugee Convention, as they could have found protection in their safe country of origin (or safe third country). It does not mean that claims of applicants coming from safe countries are automatically discarded, but it justifies the use of measures such as inadmissible or accelerated procedures.

In practical terms, the use of the SCC reduces safeguards on procedural standards, systematically enabling what should be exceptional measures. It places an extra burden on applicants, and reduces their chance to be granted protection. (EASO reported that 89% of the cases in accelerated procedures are unsuccessful, which is significantly higher than through the normal route).

This practice has been criticised by NGOs, scholars, and the UNHCR who warned of the creation of a form of discrimination. A differentiated procedure based on nationality is, indeed, likely to contravene EU and International anti-discrimination laws, especially considering the important consequences it has on individuals.

Besides, generalising presumptions of safety in order to rebut presumptions of refugee-hood seems to be incompatible with the EU member states’ obligations under the Refugee Convention, prescribing evaluation on individual grounds. In the case of Elias and Ahmad v Hungary, the European Court of Human Rights (ECtHR) found that national safe countries lists were insufficient to relieve states from their obligation to examine claims on a case-by-case basis, highlighting the concept’s inherent contradiction.

Despite the normative issues it poses and the worryingly detrimental consequences it has on individuals, the SCC is being consistently used, and considered an efficient instrument by the EU. However, can we, in this case, dissociate the apparently purely administrative nature of this instrument and its efficiency from policy considerations?

THE BACKDOOR POLITICS OF THE SCC

According to the European legislation, a country is considered safe when there is "generally and consistently" no political persecution, torture, or indiscriminate violence. This definition, described as being "vague to the point of meaninglessness" leaves a lot of space for discretion in implementation.

Naturally, the European Directive also provides details and guidance on how countries must assess safety, starting with a heavy reliance on country of origin information (COI). Yet, the COI is also well known for often being insufficient, erroneous, to lack transparency, and for being a process of validation rather than a real investigation.

In any circumstances, collecting data on a country’s observance for human rights uneasily fits within a social science rigorous methodology and is unlikely to give relevant results. The evaluation of the level of discrimination faced by minorities, for example, may be hindered by various factors such as corruption, translation problems, cultural misinterpretation, and observers’ bias.

Moreover, EASO’s legitimacy as the main source of COI is disputable. Its management board being essentially formed of European ministries of interiors, it is difficult to believe that national policy considerations on migration do not come into the equation in the assessment process. Besides, there is a lack of control over the findings. COI are shared amongst states and reused in decision-making as being objective and authoritative, when it is, in effect, self-referential.

The COI issue aside, Englemann demonstrates that the designation of a country as being safe depends primarily on the number of refugees it produces (or can potentially produce) as well as unrelated political considerations – as opposed to its actual safety. Taking the example of Ghana, Senegal and Benin, it shows that the important alignment of European member states on the presumed safety of these countries in the 2000's directly correlates with (1) the high ratio between number of arrivals and recognition rates, (2) the fear of being flooded , and (3) political considerations able to hide the West African countries' human rights violations.

Following this line of reasoning, we could explain the quick spread of safety evaluation of Balkan countries who created important immigration flows in the past few years, or the recent designation of Turkey as a safe third country by Greece enabling Greece to process quickly the numerous claims from nationals of Syria, Afghanistan, Pakistan or Bangladesh.

Human rights advocates can only rejoice at the drop of Senegal, Ghana, and Benin from France’s safe country list, ensuring better standards of protection for asylum seekers coming from these three nations. But let us not forget the reverse side of the coin: that decision also correlates with the small number of claims Senegal, Ghana, and Benin have recently been producing, which reassures France that they do not represent a “flooding threat” anytime soon.

Coralie is a former art director and a recent LLM graduate from University College London, dedicated to fight for the respect and protection of Human Rights.

Linkedin