Definition and Legal Foundations of the Safe Third Country
The term “safe third country” plays a central role in the asylum, residence, and refugee law of numerous countries, particularly within the European Union. A safe third country is a nation in which, according to the assessment of a receiving state, the person seeking protection is safe from persecution, torture, inhuman, or degrading treatment, and furthermore has access to a fair asylum procedure. The precise legal definition and the associated requirements are of great importance for the handling of asylum applications and for international refugee protection.
Origin and International Law Framework
The basis for the application of the safe third country concept can be found in various international agreements, in particular in the 1951 Geneva Convention Relating to the Status of Refugees and the 1967 Protocol. In addition, European law regulates the responsibility and application of the third country concept through several directives and regulations, in particular through the Dublin III Regulation (Regulation (EU) No. 604/2013).
Aims and Function of the Concept
The concept of the safe third country aims to ensure orderly migration and effective protection of refugees, while at the same time avoiding so-called “asylum shopping” phenomena and multiple applications in different countries. States should not be obligated to grant protection to someone seeking asylum if that person is already in or has stayed in a country considered safe.
Legal Requirements for Classification as a Safe Third Country
The classification of a state as a safe third country is subject to a number of legal criteria. These criteria are defined in national and international legal norms.
European Union and National Regulations
Dublin III Regulation
According to the Dublin III Regulation, a third country is considered safe if it:
- has ratified the Geneva Convention Relating to the Status of Refugees and the 1967 Protocol,
- observes the principle of non-refoulement (prohibition of expulsion to a country where persecution or ill-treatment threatens),
- guarantees a functioning and effective asylum procedure,
- guarantees human rights, particularly the prohibition of torture and inhuman treatment.
Common EU List of Safe Third Countries
The European Union does not yet have a definitive common list of safe third countries. Instead, it is up to the individual Member States to maintain national lists, which must be regularly reviewed and adjusted as a result of political changes in the relevant third countries.
German Law: § 26a Asylum Act (AsylG)
According to § 26a of the German Asylum Act, those states are considered safe third countries that:
- apply the Geneva Convention Relating to the Status of Refugees without geographical restrictions,
- are bound by it, in particular to observe the non-refoulement principle,
- maintain a functioning system for protecting asylum seekers from persecution.
The list of safe third countries is set out in Annex I to the Asylum Act and includes, in particular, all EU Member States as well as Norway and Switzerland.
Application in the Asylum Procedure
The instrument of the safe third country is a central filter criterion in the processing of asylum applications.
Procedure and Legal Consequences
If a person applies for asylum and has previously passed through or stayed in a safe third country, the application can be rejected as inadmissible in accordance with statutory provisions. Instead of a substantive examination of the grounds for fleeing in the actual receiving state, the applicant is returned to or turned back to the safe third country, provided that the transfer is practically possible and legally permissible.
Guarantee of Effective Legal Protection
Rejection or return to a safe third country is only permissible if the rights and protection guarantees of international refugee protection are actually granted there. The presumption of a safe third country can be rebutted by new political developments, civil war, or serious human rights violations. Therefore, the asylum procedure also provides for case-by-case reviews as well as legal remedies.
Special Provisions
For certain groups of persons, such as unaccompanied minors or particularly vulnerable individuals, there are sometimes additional protection guarantees or special rules for case-by-case examination.
Legal Remedies and Review Mechanisms
Legal Protection Against Classification
In response to the rejection of an asylum application on the grounds that the applicant entered via a safe third country, the affected person generally has legal remedies available. In Germany, for example, an administrative court action against negative decisions is possible.
Review of Third Country Lists
The classification as a safe third country is subject to ongoing review by the respective state authorities, taking into account the constantly changing political and human rights situation in the countries. Changes lead to adjustments of the lists or even to the suspension of third country regulations for certain countries.
International Law and Practical Challenges
Criticism and Controversies
The application of the safe third country principle is the subject of regular international discussion and criticism. Of particular concern is whether all listed countries actually and consistently implement the protection standards set out in the Geneva Refugee Convention and in international human rights law. Practical challenges also arise during the transfer process and when determining whether an applicant has indeed transited through a safe third country.
Interactions with Principles of International Law
The principle of non-refoulement, regarded as a fundamental aspect of refugee protection, forms a strict legal boundary for returns and deportations. The right to a fair procedure and effective legal protection in the event of imminent deportation is also guaranteed internationally.
Summary
The safe third country is a central instrument of international asylum law, which considers both the special protection interests of refugees and the legitimate regulatory and procedural concerns of receiving states. The precise legal structure and concrete application are regularly subject to comprehensive review to meet the challenges of refugee protection in an international context. Understanding the international, European, and national principles and mechanisms of the safe third country is crucial for proper assessment and application of this legal institution.
Frequently Asked Questions
What legal criteria determine whether a country is considered a safe third country?
In the legal context, asylum and residence law define precise requirements for when a country is deemed a “safe third country.” Particularly relevant is § 26a of the German Asylum Act, supplemented by European provisions, such as Article 38 of the EU Asylum Procedures Directive (2013/32/EU). According to these provisions, a country is considered safe if the life and liberty of the asylum seeker are not threatened there on account of race, religion, nationality, membership in a particular social group, or political opinion, and if the principle of non-refoulement is observed. In addition, a foreign national in the safe third country must have the opportunity to apply for international protection, with the prospect of fair and prompt procedures and dignified reception conditions. The classification of a country is generally determined by law or a statutory order, with periodic assessments of current human rights and asylum standards.
What legal consequences result from classifying a country as a safe third country?
The legal classification of a country as a safe third country has direct effects on the individual asylum procedure. In Germany, for example, it leads, under § 26a AsylG, to asylum applications from persons who have entered via such a country generally being rejected as “inadmissible.” The person concerned then usually only has the option of so-called “applying in the transit country” or of presenting serious personal reasons that may prevent return. National law obligates the authorities to return or deport the asylum seeker there, unless exceptions apply, such as severe human rights violations in individual cases. Additionally, applications involving the safe third country rule are often handled through an accelerated procedure according to procedural law.
How are safe third country lists legally determined and reviewed?
The determination and review of safe third countries in Germany are based on statutory provisions, especially § 26a (2) AsylG in conjunction with Annex I to the Asylum Act. The list of countries considered safe third countries is set by the legislature, taking into account international and European standards. Regular reviews take place, involving current human rights reports, recommendations from international organizations (such as UNHCR or the Council of Europe), and judgments from the highest courts, such as the Federal Constitutional Court or the European Court of Human Rights. Legal acts establishing or amending the list must be approved by parliament and are subject to judicial review.
What legal protection mechanisms exist for exceptions to the third country rule?
Despite the application of the safe third country rule, protective measures remain in place that take into account the individual’s right to legal protection. This includes, in particular, the right to an individual review within the administrative procedure. According to § 26a AsylG and European law, an asylum application may not be rejected solely due to entry from a safe third country if it can be credibly demonstrated in the individual case that the third country is not in fact safe for the applicant, for example, due to impending persecution, systemic deficiencies, or the risk of chain deportation. Even against negative decisions, legal remedies such as an action before the administrative courts are possible, although in accelerated proceedings shorter time limits may apply. Constitutional and human rights requirements act as additional safeguards.
How do European legal provisions affect the application of national third country rules?
European Union directives and regulations, in particular the Asylum Procedures Directive (2013/32/EU) and the Dublin III Regulation (604/2013/EU), establish binding minimum standards for the application of third country regulations at the national level. They stipulate not only how and by which criteria third countries are to be assessed as safe, but also guarantee that procedural rights are safeguarded and international protection principles, such as access to fair asylum procedures and the principle of non-refoulement, are observed. National provisions that conflict with these requirements are contrary to Union law and may be reviewed by national or European courts in individual cases. This means that national exceptions or stricter rules must always be checked for compliance with overriding EU law.
Under what conditions can an asylum seeker receive asylum in Germany despite passing through a safe third country?
An asylum seeker who has entered Germany via a country considered safe generally cannot obtain asylum, as his or her application is deemed inadmissible under § 26a AsylG. However, exceptions exist if the applicant can prove that there was no actual opportunity to apply for protection in the third country, that return there is not possible or reasonable, or that specific individual dangers exist. Such objections must be presented and substantiated in detail within the application process, for example, by providing evidence of imminent individual persecution, systemic procedural deficiencies, or inhumane detention conditions. Only if adequate protection and dignified reception in the third country are not guaranteed can an exception apply in an individual case.
