Definition of terms: Safe third country
The term “safe third country” is a significant legal category, especially in asylum, residence, and migration law. It refers to a country that is neither the country of origin of an asylum seeker nor the country the person intends to enter directly. The central point is that the third country has been classified as “safe”, meaning that fundamental and human rights—especially with regard to refugees—are guaranteed there. The exact legal definition and practical implications can vary according to national and supranational legal frameworks, particularly in the European context.
Legal Basis of the Safe Third Country
European Legal Provisions
Art. 38 Asylum Procedures Directive
The qualification of a safe third country is regulated in various directives at both the national and EU levels. According to Art. 38 of Directive 2013/32/EU (Asylum Procedures Directive), Member States may consider an application for international protection to be inadmissible if the applicant entered from a safe third country. The directive sets out minimum requirements for the classification of a country as a safe third country.
Criteria for Classification
The EU stipulates that a third country is considered safe if:
- The life and liberty of the applicant are not threatened on account of their race, religion, nationality, membership of a particular social group, or political opinion.
- The prohibition of refoulement according to Art. 33 of the Geneva Refugee Convention and the prohibition of deportation where there is a risk of torture or inhuman or degrading treatment are observed.
- It is possible to apply for and receive asylum in the country concerned in accordance with the Geneva Refugee Convention.
Furthermore, an individual assessment must be made to determine whether the applicant is actually safe in the specific third country concerned.
Provisions under German Law
The decisive regulations for the definition and application of the term “safe third country” in German asylum law are found in Section 26a of the Asylum Act (AsylG). This provision essentially follows EU law requirements. Furthermore, Section 29 (1) AsylG specifies that an asylum application is inadmissible if the applicant entered from a safe third country.
List of Safe Third Countries
The legislature determines which states are considered safe third countries. Under national law, the Member States of the European Union, Norway, and Switzerland are currently designated as safe third countries. Changes to this list are made by statutory regulation.
Constitutional Requirements
The Federal Constitutional Court has repeatedly addressed the compatibility of the third country rule with Art. 16a of the Basic Law (right of asylum). According to its case law, an asylum seeker may be refused entry to Germany if secure protection in a third state is guaranteed and access to a fair asylum procedure exists there.
Function and Significance of the Third Country Rule
Increasing the Efficiency of Asylum Procedures
The third country rule serves to accelerate procedures and to prevent multiple applications (so-called asylum-shopping). The responsibility for refugee protection is intended to be distributed among those states where effective protection can already be provided.
Protection from Refoulement (Non-Refoulement Principle)
One of the highest principles in dealing with refugees is the prohibition of deportation to unsafe countries, also known as the non-refoulement principle. Countries considered safe third countries must guarantee that there will be no removal to states where persecution is a threat.
Requirements and Procedures in Practice
Individual Assessment in Each Case
The concept of the safe third country fundamentally requires an individual assessment to determine whether effective protection exists for the specific asylum seeker in the country concerned. Problems can arise particularly if human rights standards are not adequately guaranteed in the third country or if the country does not actually provide access to an asylum procedure.
Legal Protection and Procedural Guarantees
Asylum seekers who are denied entry on the grounds of the safe third country principle are entitled to be heard and to effective legal protection against negative administrative decisions.
Distinction from the Concept of “Safe Country of Origin”
Whereas with a safe third country a transit country is regarded as safe, the concept of safe country of origin relates exclusively to the applicant’s country of origin. Both legal concepts pursue similar aims, but differ in terms of requirements and scope.
International Perspectives
Comparable concepts exist in other countries outside Europe, although their structure and requirements may vary. In international refugee law, the Geneva Refugee Convention is of particular importance.
Criticism and Current Debates
Human Rights Concerns
Human rights organizations as well as international legal assessments point out that designating a state as a safe third country should not take place indiscriminately. The actual protection on the ground and practical accessibility of asylum must always be ensured.
Current Legal Policy Developments
In the context of migration movements and efforts to reform the Common European Asylum System, the handling of safe third countries is regularly reviewed and adapted. The expansion of the list of safe third countries is just as much a topic of discussion as the effectiveness of the rule of law guarantees and refugee protection systems in the countries concerned.
Conclusion
The term “safe third country” is a central element of European and national asylum law. It serves to manage and speed up asylum procedures but is subject to strict substantive and procedural requirements, especially the protection of fundamental human rights. The determination and handling of safe third countries remains of lasting legal-political and societal importance.
Frequently Asked Questions
When is a third country deemed “safe” in a legal context?
A third country is considered “safe” in a legal context if it has been classified as such by the competent national authority or according to European regulations. This classification is usually based on clearly defined statutory criteria, particularly in the area of asylum and residence law, or, in issues of data protection law, in connection with international data transfers. Relevant factors include, among others, the guarantee of fundamental human rights, effective legal protection mechanisms, compliance with the Geneva Refugee Convention and the European Convention on Human Rights, and, in data protection, the existence of an adequacy decision by the EU Commission pursuant to Art. 45 GDPR. The authority for this assessment can be national parliaments, competent ministries, or, at the EU level, the European Commission. Legally, periodic reviews take place to ensure that the criteria continue to be met, which is why a country can also lose its status as a “safe third country”.
What are the legal consequences of being classified as a safe third country for an asylum seeker?
If a country is classified as a “safe third country”, this has significant legal effects on asylum procedures. Pursuant to Section 26a of the German Asylum Act, asylum applications from individuals who entered via such a third country may usually be rejected as inadmissible, as it is assumed that protection from persecution would have been possible there. The applicant must then set out special circumstances that justify an exception. In the EU, this is primarily governed by Procedures Directive 2013/32/EU in conjunction with the Dublin III Regulation. Furthermore, there is generally no entitlement to substantive examination of the asylum claim in Germany unless it can be proven that adequate protection was not possible in the safe third country.
Who is responsible for designating a safe third country?
Responsibility is determined by national and European law. In Germany, the legislature designates safe third countries by including them in an annex to the Asylum Act. At the European level, designation is made by the Council or the Commission through statutory instruments such as regulations or decisions, for example an adequacy decision in the sense of data protection law. In any case, a prior review procedure is required, which often incorporates human rights reports, judicial analyses, and statements from international organizations.
What role do international treaties play in the classification of a third country as safe?
International treaties play a decisive role. In asylum law, the Geneva Refugee Convention and the European Convention on Human Rights are particularly important for assessing whether the country in question provides adequate protection. In data protection, the consideration of international data protection standards such as the OECD Guidelines or the signing of United Nations or Council of Europe conventions is relevant. States that comply with or develop these international minimum standards through the jurisprudence of their constitutional courts are more likely to be classified as “safe”.
What legal remedies exist for individuals affected by an incorrect classification?
Affected persons can generally seek legal protection against the rejection of asylum applications based on the safe third country rule, for example by filing a claim before the administrative courts in accordance with Sections 74 et seq. of the Asylum Act in conjunction with the Administrative Court Procedure Act. Pursuant to Art. 19(4) of the Basic Law, there is a right to effective legal protection, so that a substantive factual review must be conducted if there are serious doubts as to the safety of the third country. In data protection law, affected persons may contact the national data protection authority or, where appropriate, the European Data Protection Supervisor. Additionally, there is the right to lodge a complaint with the European Court of Human Rights or at least an individual review by national courts as to whether protection is actually present in the specific case in the third country concerned.
How is the list of safe third countries legally reviewed and updated?
The list is regularly reviewed and updated by the competent legislators or authorities. Legally, it is stipulated that a reassessment must take place if there are changes to the political or human rights situation in a third country. In Germany, the list is amended by statute; this requires a legislative procedure involving external expert opinions, for example by the Foreign Office or human rights organizations. At the European level, adequacy decisions or analogous decisions are also subject to regular review and may be repealed or modified by new decisions.
Are there exceptions to the application of the safe third country rules in individual cases?
Yes, exceptions are legally possible on a case-by-case basis. For instance, if the applicant provides substantial reasons that a return to the so-called “safe third country” would pose an individual risk to life, physical integrity, or freedom (for example, due to specific personal circumstances or group-based persecution), an exception to the inadmissibility decision may be made. This is governed by Section 26a of the Asylum Act and Article 3 of the ECHR (“prohibition of refoulement”). In circumstances concerning data protection, individual legal protection may apply if the person concerned is able to credibly demonstrate that, despite an official adequacy decision, the effective enforcement of their rights in the third country cannot be guaranteed.
