Articles 4 AsylG set out the safe third country concept. If the concept is applied the application is processed and rejected as inadmissible (see Admissibility Procedure).
Article 12(2) BFA-VG also provides that, in case of rejection of the application as inadmissible according to the safe third country concept, the BFA has to add a translation of the relevant articles and a confirmation in the language of the third country that the application was not assessed in the merits and that an appeal has no suspensive effect.
If the person cannot be deported within 3 months for reasons unrelated to his or her conduct, the inadmissibility decision ceases to be valid.1
Criteria on safety and connection
Protection in a safe third country is deemed to exist if a procedure for the granting of refugee status in accordance with the Refugee Convention is available to the person in a country where he or she is not exposed to persecution or serious harm, and the person is entitled to reside in that country during such procedure and has protection there against deportation to the country of origin, provided that the person is exposed to such risk in the country of origin.2 There is a presumption that these requirements are met by countries that have ratified the Refugee Convention and established by law an asylum procedure incorporating the principles of that Convention, the ECHR and its Protocols Nos 6, 11 and 13.3
There is no list of safe third countries and the concept is applied rarely. It is applied for persons with protection status applying for asylum in Austria too. A Syrian mother with 3 children gave birth after she arrived in Bulgaria, and suffered from prenatal depression. She was granted subsidiary protection in Bulgaria shortly after her journey to Austria. The Bulgarian authorities denied responsibility under the Dublin system, but were ready to take over as a result of the readmission agreement. The BVwG considered the deportation to Bulgaria as not permissible because of the PTSD from which the children were suffering and which was triggered, among other things, by experiences during the imprisonment in Bulgaria at the end of September 2015, as well as the intensive family relationship with relatives living in Austria.4
The conditions for the application of the safe third country concept have been clarified by the Constitutional and Administrative High Court. The presumption of compliance with safety criteria through ratification of legal instruments was affirmed in 1998 by the Administrative High Court, which has ruled that asylum authorities must first and foremost assess the legal conditions in a third country.5 However, the Constitutional Court has ruled that the formal criteria of ratification of the Refugee Convention, the declaration according Article 25 ECHR and the existence of an asylum law are not sufficient to establish safety in a third country, but the granting of protection in practice has to be taken into consideration. Asylum authorities have to be prepared to have up-t-date information of relevant organisations to be able to assess the factual situation.6
According to both rulings, mere transit or stay in a third country is not sufficient to apply the safe third country concept.7
- 1. Article 4(5) AsylG.
- 2. Article 4(2) AsylG.
- 3. Article 4(3) AsylG.
- 4. BVwG, Decision W192 2131676, 8 September 2016.
- 5. VwGH, Decision 98/01/0284, 11 November 1998.
- 6. VfGH, Decision U 5/08, 8 October 2008, available at: http://bit.ly/2jilW73.
- 7. VwGH, Decision 98/01/0284, 11 November 1998; VfGH, Decision U 5/08, 8 October 2008.