Safe third countries for asylum seekers
- Parliamentary Assembly
debate on 12 October 2022 (31st sitting) (see Doc. 15592, report of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Ms Stephanie Krisper). Text adopted by the Assembly on
12 October 2022 (31st sitting).See also Recommendation 2238 (2022).
1. Recalling the right to apply for
and seek asylum under the 1951 United Nations Convention relating
to the Status of Refugees (the 1951 Refugee Convention) and, for
member States of the European Union, under Article 18 of the European
Union Charter of Fundamental Rights, the Parliamentary Assembly
notes with concern a tendency to return or transfer asylum seekers
to third countries without clearly establishing the safety of the
respective third country, the legality of the return and the existence
and availability of certain objective standards of protection.
2. The Assembly emphasises that Article 31, paragraph 1, of the
1951 Refugee Convention stipulates only that penalties shall not
be imposed on account of the illegal entry or presence of refugees
or asylum seekers who came directly from a territory where their
life or freedom was threatened. It is not permissible to effectively deprive
asylum seekers of access to a fair and efficient determination and
treatment of their asylum claim, in line with international standards,
as it may expose them to the risk of refoulement and
other rights violations. Hence, asylum seekers are not required
to apply for protection in the first safe country of arrival and
cannot be penalised for not doing so.
3. Referring to Conclusion No. 58 (XL) of the Executive Committee
of the United Nations High Commissioner’s Programme, the Assembly
recognises the importance of clarifying the legal status and protection
of refugees and asylum seekers who move in an irregular manner from
countries in which they have already found protection to seek asylum
or permanent resettlement elsewhere.
4. Whereas it is important for asylum seekers and member States
of the Council of Europe alike to clarify in a timely manner which
State is responsible for processing an asylum application, the Assembly
is aware that the safe third country principle under Article 33
of Directive 2013/32/EU of the European Parliament and of the Council
of 26 June 2013 on common procedures for granting and withdrawing
international protection (recast), according to which a European
Union member State can declare inadmissible an application for international protection
if a country which is not a member State is considered to be a safe
third country for the applicant, does not apply among States which
are not members of the European Union. This situation may cause
legal uncertainty, to the detriment of asylum seekers.
5. The Assembly recalls Recommendation No. R (97) 22 of the Committee
of Ministers of the Council of Europe to member States, which contains
guidelines on the application of the safe third country concept
and enumerates the criteria for assessing whether a country can
be considered as safe, including “observance by the third country
of international human rights standards relevant to asylum as established
in universal and regional instruments” and “the third country will
provide effective protection against refoulement and
the possibility to seek and enjoy asylum”. Since adoption of that
recommendation, there have been many legal developments.
6. Welcoming the relevant jurisprudence of the Court of Justice
of the European Union (Case No. C-564/18 and Nos. C-924/19 and C-925/19),
the Assembly reaffirms that the return of an asylum seeker to a
safe third country requires a connection to that country beyond
the mere transit by the person concerned.
7. Welcoming the relevant jurisprudence of the European Court
of Human Rights (the Court) in the cases Ilias
and Ahmed v. Hungary (Application No. 47287/15), M.K. and Others v. Poland (Application
Nos. 40503/17, 42902/17 and 43643/17) and M.S.S.
v. Belgium and Greece (Application No. 30696/09), the
Assembly emphasises that competent authorities in member States
of the Council of Europe must analyse, before returning or expelling
an asylum seeker to a third country, whether this person would have
proper access to an effective asylum procedure in the country concerned
without being exposed to the risk of inhuman and degrading treatment
or torture in violation of Article 3 of the European Convention
on Human Rights (ETS No. 5) or of being subjected to “chain refoulement”.
8. Welcoming the work of the European Union Agency for Asylum
towards a co-ordinated approach within the European Union to evaluate
the safety of third countries, the Assembly believes that co-ordinated
efforts should also be taken at the level of the Council of Europe.
Therefore, building on this work and taking into consideration recent
jurisprudence from the European Court of Human Rights, the Assembly
encourages the development of new and up-to-date criteria at the
level of the Council of Europe to assess the safety of third countries.
9. The Assembly also emphasises that no absolute presumption
of safety can be made, as the situation in a safe country can deteriorate
to a standard that renders the country in question unsafe. In this
respect, the European Court of Human Rights clarified in M.S.S. v. Belgium and Greece (Grand
Chamber judgment of 21 January 2011, Application No. 30696/09) that
applicants must be able to challenge the presumption that a country
is safe in his or her particular circumstances without bearing the
entire burden of proof. In the Chamber judgment Ilias and Ahmed v. Hungary (Application
No. 47287/15), the Court stated that the burden of proof must not,
in light of Article 13 of the European Convention on Human Rights
(right to an effective remedy), be reversed to the applicants’ detriment.
Therefore, referring to considerations by the European Court of
Human Rights, the Assembly encourages the development of procedural
requirements at the level of the Council of Europe in order for
asylum seekers to have a fair possibility to rebut the presumption
10. The Assembly recognises that the monitoring of decisions on
safe third country is essential to improve Council of Europe member
States’ practice and to strengthen the rights of asylum seekers
and refugees. Therefore, the Assembly encourages Council of Europe
member States to establish objective and independent monitoring
mechanisms to monitor national law and practice in this regard.
Recalling its Resolution
“Voluntary relocation of migrants in need
of humanitarian protection and voluntary resettlement of refugees”,
the Assembly welcomes the current discussion on relocation and resettlement
of asylum seekers among European Union member States and beyond,
while encouraging Council of Europe member States to make further
efforts in this regard. Such action would prioritise solidarity over
recourse to the safe third country concept.
12. The Assembly invites the Special Representative of the Secretary
General of the Council of Europe on Migration and Refugees to support
greater co-ordination and co-operation among member States in applying the
safe third country concept in the context of asylum.