When numbers lie: the limits of the 20% rule in the EU Asylum Procedures Regulation

Introduction

With the New Pact on Migration and Asylum changing into absolutely relevant in June 2026, the EU Fee is ramping up the preparations.

Arguably, one of the advanced devices to implement would be the new Asylum Procedures Regulation (APR), Regulation (EU) No 1348/2024, which repeals the Recast Asylum Procedures Directive (RAPD, Directive 2013/32/EU). The implementation of the RAPD has been outlined as “patchy” due to “lack of readability within the underlying EU authorized framework”; therefore, the brand new Regulation makes an attempt to comprehensively regulate quite a few points that had been till now left to the Member States’ discretion.

One of many essential objectives of the APR is the acceleration of asylum procedures, particularly these regarding purposes that are anticipated to be unfounded. The self-discipline of accelerated procedures is thus broadened and clarified, in comparison with that set out within the RAPD. Using accelerated procedures turns into obligatory within the instances coated by Article 42 APR they usually have to be accomplished inside three months (whereas the RAPD solely requires that they’re accomplished inside “affordable” deadlines, as per Article 31(9)). A brand new floor of acceleration is launched: underneath Article 42(1)(j) APR asylum purposes from nations the place the EU-wide safety recognition charge is 20% or decrease could also be dealt with via accelerated or border procedures. The Fee proposed to fast-track the implementation of this provisionthrough a focused modification of the Regulation, which might permit Member States to use Article 42(1)(j) earlier than June 2026. In line with the Fee, this device ensures that Member States can “adapt to adjustments in migration flows” and “course of probably unfounded purposes extra swiftly”. Bringing ahead its utility might scale back divergences in nationwide practices, getting ready the bottom for the total implementation of the Pact.

The opposite ingredient of the APR whose implementation the Fee proposed to fast-track is the designation of SCOs and secure third nations with subjective or territorial exceptions (Articles 59(2) and 61(2)). These provisions override the landmark CJEU choices (in instances C-406/22, and joined instances C-758/24 and C-759/24), holding that Article 37 RAPD doesn’t permit exceptions ratione loci or ratione personae to the definition of SCO. The Fee’s proposal can also be a tacit acknowledgement of how advanced the designation of secure nations is on an EU degree, because it requires detailed analysis of the third nation’s authorized and political system. Convergence amongst Member States will not be straightforward to realize: the SCO record drafted by the Fee, nonetheless pending approval, designates solely seven nations, whereas nationwide lists have a median of 16.

Quick-tracking these provisions and the 20% rule – which is, as defined additional down, a floor for procedural acceleration complementary to the SCO idea – won’t per se overcome the problems encountered with the SCO designation, however will make sure that no less than a part of the brand new procedural framework is swiftly applied. Certainly, the Fee defines the popularity charge criterion as “extra goal and easy-to-use”, however will statistics actually show to be the answer? This contribution argues that the 20% mechanism, regardless of being designed to make sure procedural harmonisation and swifter decision-making, dangers undermining elementary procedural ensures of the EU asylum acquis by counting on statistical thresholds, indifferent from particular person evaluation and judicial evaluation dynamics. Clarifying these procedural particulars can also be essential from a broader EU-law perspective, as they are going to have vital penalties on the uniform utility of the Regulation and the safety of asylum seekers’ elementary rights within the EU.

What the Regulation says: the legislative framework

Article 42(1)(j) of the brand new Process Regulation states that the figuring out authority shall speed up the examination process if the applicant is from a nationality “for which the proportion of selections by the figuring out authority granting worldwide safety is, in line with the newest obtainable yearly Union-wide common Eurostat knowledge, 20 % or decrease”. An exception is supplied whether it is assessed {that a} vital change has occurred within the nation of origin or that the applicant belongs to a class for whom the proportion will not be consultant. Beneath Article 42(3)(e), that is additionally one of many grounds to use an accelerated process to unaccompanied minors, and underneath Article 45(1) it is likely one of the instances of obligatory utility of border procedures.

The 20% recognition charge will be raised to 50% or lowered to five% in instances of outstanding state of affairs of mass arrivals, in line with Article 11(3-4) of Regulation (EU) 2024/1359, the brand new Regulation on conditions of disaster and drive majeure; this gives a derogatory framework, utilized as lex specialis to recalibrate procedures and obligations in conditions of disaster and drive majeure.

The mechanism is a novelty launched with the APR; nonetheless, related provisions have already been applied in some Member States. These should not related as direct authorized precedents, however as empirical proof of whether or not and the way quantitative threshold-based procedures can operate in apply. As an illustration, Migrationsverket, the Swedish migration authority, developed in 2021 an advert hoc accelerated process (Spår 4b) for claims for nationalities with a recognition charge beneath 15%, making use of the Aliens’ Act provision (Chapter 8, Part 19 Utlänningslag) that states that manifestly unfounded claims will be handled in an accelerated process, issuing an instantly enforceable return order.

The APR regulates totally different “secure nation” ideas – the efficient safety in a 3rd nation (Article 57), the nation of first asylum (Article 58), the secure third nation (Article 59), the secure nation of origin (SCO, Article 61), and the interior safety various (talked about in Article 34 APR, regulated in Article 8 of Regulation (EU) 2024/1347) – so many who it has been identified how the brand new procedural guidelines suggest that almost all of asylum seekers doesn’t deserve a substantive examination, since a lot of the purposes are “doomed to fail”. Recital 56 clearly states that the secure nation of origin and secure third nation notions stay “relevant as a separate floor” from the 20% mechanism, proscribing their respective scopes. Certainly, the latter is predicated on mere calculations, which don’t mirror the factors used to designate secure nations: Articles 57 via 61 point out compliance with the 1951 Geneva Conference, the ECHR, and human rights devices as standards to outline nations as secure, whereas the mechanism envisioned by Article 42 solely depends on statistics. Due to this fact, not all third nations with a low recognition charge will be designated as secure, and vice versa. The procedural and substantial penalties of the applying of those guidelines are additionally totally different: the 20% rule results in acceleration (Article 42(1)(j) APR), obligatory localisation on the border (Article 43(1)) and the likelihood for nationwide authorities to declare unfounded purposes manifestly unfounded (Article 39(4)); designation as a SCO entails acceleration (Article 42(1)(e)) and potential manifest unfoundedness (Article 39(4)); designation as secure third nation inadmissibility (Article 38(1)(c)). Furthermore, candidates have the potential for offering parts justifying why secure nation ideas should not relevant to them (Articles 58(2), 59(5)(a), and 61(5)(c)); for the 20% recognition rule is as an alternative the figuring out authority which assesses that the proportion will not be consultant for the applicant’s safety wants.

Regardless of these key variations, the 20% mechanism and secure nations ideas are constructed on the identical assumption, the presumption {that a} nation is secure for the applicant primarily based on parts fully indifferent from the person utility. Due to this fact, they current the identical challenges of their efficient utility, since utilizing pre-collected knowledge regarding collective conditions might result in ignoring not solely the factual and fast-paced growing state of affairs in third nations, but additionally the specificities of the person case, which is in opposition to the elemental functioning of the asylum system. This additionally entails that the identical doubts concerning the potential discriminatory impact of the SCO idea is also solid over the 20% rule. Lastly, the hassle proven by the European Fee to fast-track the applying of this mechanism, whereas dialogue on Protected International locations of Origin is ongoing, might strengthen the case of those that contemplate it a device to surreptitiously contemplate extra nations as secure with out assessing the factors said within the Regulation itself.

What the Regulation doesn’t say: blind spots within the textual content

Having highlighted the problems in what the Regulation does say, the issues left unaddressed are much more urgent. This part identifies three vital omissions of the APR in relation to the 20% rule.

Firstly, the APR doesn’t make clear whether or not attraction choices must be included within the calculation. Article 42(1)(j) solely mentions “the figuring out authority granting worldwide safety”: underneath a strictly literal interpretation, that is solely the first-instance administrative authority. It’s said that to find out whether or not the proportion will not be consultant for the applicant “vital variations between first occasion and closing choices” are to be taken into consideration “inter alia”. It isn’t defined how this could seem like in apply, and it appears notably advanced to take attraction choices (which Courts can take years to achieve) into consideration in calculations up to date yearly and for procedures that ought to final solely 3 months (if accelerated) or underneath 12 weeks (if border procedures). Due to this fact, until the that means of this sentence is defined earlier than Member States implement the measure, instances the place judges have reformed the choice in favorem migrantis wouldn’t be included within the calculation, and procedural or substantial errors dedicated within the administrative section would proceed impacting subsequent purposes. Furthermore, long-term adjustments in case-law may be missed. Whereas the 20% rule doesn’t explicitly intervene with the appropriate to an efficient treatment, enshrined in Article 47 of the Constitution of Elementary Rights, in apply it grants solely administrative choices – and never judicial ones – the ability to affect subsequent purposes.

Secondly, the 20% recognition charge contains solely choices granting worldwide safety (as defined in Recital 56), excluding nationwide complementary safety statuses. In some frameworks these are of minor relevance: to quote just a few examples, in Sweden a residence allow could also be granted though the necessities for a residence allow on another foundation should not met solely in case of exceptionally distressing circumstances, and France, Belgium, and the Netherlands don’t regulate a complementary humanitarian safety. In different Member States, in contrast, they’re intrinsically a part of the asylum system. As an illustration, in Italy Title II of decree 286/1998 incorporates “humanitarian provisions”, disciplining the difficulty of residence permits not associated to worldwide safety or work or training causes; Article 19 has been modified ten instances over twenty-five years and has been the item of quite a few choices of the Italian Supreme Court docket (Corte di Cassazione), signaling a robust political disagreement on the subject. The present model (protezione speciale, particular safety) prohibits the refoulement of people that might be subjected to discriminations prohibited by the Italian Structure, torture or different inhumane or degrading remedies; till 2023 the expulsion of third-country nationals was additionally prohibited in case of affordable grounds to imagine that this might violate their proper to non-public and household life. Within the Italian system the evaluation of particular safety is a essential step for the figuring out authority. By the way, additionally it is probably the most recognised throughout each administrative and attraction proceedings, and even in its lowered type after the newest reform it nonetheless protects conditions carefully linked to the refugee standing and subsidiary safety. The exclusion of such choices from the 20% mechanism will entail a big compression of procedural ensures for asylum seekers protected underneath the present regime and considerably ignore the most important share of safety statuses recognised by Italian authorities. Furthermore, it could signify a covert utility of the secure nation idea with conditions (torture, inhumane remedies, and such) that underneath the APR preclude the definition of the third nations involved as secure.

Thirdly and lastly, the speed is calculated primarily based on EU-wide statistics, supplied by Eurostat, however primarily based on choices taken by nationwide authorities, ignoring the putting variations in recognition charges and tendencies throughout the EU. Arguments over frequent lists of secure nations present how the EU asylum system is fragmented and heterogeneous. Even regarding nations like Syria, whose civil struggle induced a mass displacement that irreversibly modified the European asylum system, Member States haven’t discovered a standard method: after the autumn of the Assad regime, some have already resumed analyzing asylum purposes, whereas others are nonetheless ready. This inconsistency has previously induced points like discussion board buying and secondary actions contained in the EU; the New Pact has promised to handle it, nonetheless, sensible enhancements are but to be seen. The 20% mechanism is already a approach to apply accelerated and border procedures to undefined classes of individuals, with out taking into consideration the non-public circumstances of the applicant, however amassing knowledge on an EU degree with out first harmonising the system exacerbates this, since notably low charges in a single Member State may negatively have an effect on asylum seekers throughout the EU.

Conclusions: the way to go ahead?

The purpose of the New Pact on Migration and Asylum is to harmonise asylum procedures throughout the EU, and guarantee they grow to be “quick and environment friendly”. That is achieved by accelerating asylum procedures via the analysed 20% rule, the SCO idea, border procedures, and border screening. Certainly, fairly than fixing structural problems with the EU asylum system – at first, the Dublin system and the shortage of a good accountability sharing mechanism – the Pact inspired “a man-made want for consensus constructing or de facto unanimity”, even when EU treaties solely require certified majority voting. Northern EU nations advocated for this acceleration, and a few Southern Member States are already implementing it; on interstate solidarity as an alternative no robust settlement was reached, and the result’s uneven accountability sharing (relocation of asylum seekers will be averted offering financial or operational assist, underneath the brand new Asylum and Migration Administration Regulation). The identical denomination of “Pact” is uncommon within the post-Lisbon European Union: it’s idiosyncratic that, greater than twenty years after the start of the European Union and ten years after outgrowing the pillars division, the EU would nonetheless want a Pact. The Pact is thus a compromise amongst Member States and the EU establishments; it’s then clear why the European Fee is making an attempt to fast-track these parts of the Pact which won’t require further negotiations. Nonetheless, if the inconsistencies above highlighted should not well timed addressed earlier than implementation, they danger undermining the Regulation’s purpose of guaranteeing uniform utility of EU asylum procedures.

It will be advisable to not fast-track the mechanism, however as an alternative schedule consultations with nationwide authorities and develop, probably with the assistance of the European Asylum Company, frequent interpretation tips of the related provisions, to make sure not solely well timed enforcement but additionally the respect for procedural ensures for all asylum seekers and migrant individuals. This could be per the rules of authorized certainty and procedural equity, in addition to the appropriate to an efficient treatment, and make sure that accelerated and border procedures respect the minimal safeguards assured by the EU acquis.

Rossella Ferrara is a legislation graduate from the College of Milan with a thesis on asylum border procedures underneath the New Pact on Asylum and Migration; she is at the moment serving as an asylum case officer on the Italian nationwide asylum authority in Milan.