Author
According to Section 2(i) of the Asylum Act, a safe third country is defined as:
‘[A]ny country in connection to which the refugee authority has ascertained that the applicant is treated in line with the following principles:
- his/her life and liberty are not jeopardised for racial or religious reasons or on account of his/her ethnicity/nationality, membership of a social group or political conviction and the applicant is not exposed to the risk of serious harm;
- the principle of non-refoulement is observed in accordance with the Geneva Convention;
- the rule of international law, according to which the applicant may not be expelled to the territory of a country where s/he would be exposed to death penalty, torture, cruel, inhuman or degrading treatment or punishment, is recognised and applied, and
- the option to apply for recognition as a refugee is ensured, and in the event of recognition as a refugee, protection in conformance of the Geneva Convention is guaranteed.’
Section 51(2)(e) provides that an application is inadmissible ‘if there exists a country in connection with the applicant which qualifies as a safe third country for him or her.’
Connection criteria
The ‘safe third country’ concept may only be applied as an inadmissibility ground where the applicant (a) stayed or (b) travelled there and had the opportunity to request effective protection; (c) has relatives there and may enter the territory of the country; or (d) has been requested for extradition by a safe third country.[1] In practice, according to the HHC experience, transit or stay is a sufficient connection, even in cases where a person was smuggled through and did not know the country at all.
Procedural guarantees
In the event of applying the ‘safe third country’ concept, the applicant, when this fact is communicated to them, can declare immediately but within 3 days at the latest why in their individual case, the specific country does not qualify as a safe third country.[2] The law does not specify in which format and language this information should be communicated to the applicant, if an interpreter should be made available, or if a written record should be prepared. The law does not specify the format or language, the availability of interpreters, and the preparation of a written record pertaining to applicants’ ‘declaration’. No mandatory, free-of-charge legal assistance is foreseen for this process, however if the applicants request the assistance of HHC attorneys in time, then HHC attorneys are able to assist their clients with these submissions.
In case the application is declared inadmissible on safe third country grounds, the NDGAP shall issue a certificate in the official language of that third country to the applicant that their application for asylum was not assessed on the merits.[3] In HHC’s experience, this guarantee has so far always been respected in practice.
Where the safe third country fails to take back the applicant, the refugee authority shall withdraw its decision and continue the procedure.[4] This provision is not respected in practice. Since 15 September 2015, Serbia generally does not take back third-country nationals under the readmission agreement except for those who hold valid travel/identity documents and are exempted from Serbian visa requirements. Therefore, official returns to Serbia have not been possible. Despite this fact, inadmissibility decisions with regard to Serbia as a safe third country were still issued. What is more, in a case that resulted in a preliminary reference to CJEU,[5] regarding the ‘hybrid’ safe third country ground (see section on ‘Hybrid’ safe third country / first country of asylum) and in which the CJEU ruled that the ‘hybrid’ safe third country ground is against EU law, the NDGAP after the CJEU judgement issued another inadmissible decision, this time based on a safe third country ground with regard to Serbia, despite the fact that Serbia had already explicitly refused to readmit the applicants. In 2021, Serbia did accept some third-country nationals back under the readmission agreement, but it seems that this occurred arbitrarily, and only in few cases.[6]
The list of safe third countries
In July 2015, Hungary amended its asylum legislation in various aspects and adopted a National List of Safe Third Countries.[7] The following countries are currently considered safe third countries:
- EU Member States
- EU candidate countries
- Member States of the European Economic Area
- US Federal States that do not have the death penalty
- Switzerland
- Bosnia-Herzegovina
- Kosovo
- Canada
- Australia
- New Zealand
The list includes, amongst others, Serbia as an EU candidate country. In individual cases, the presumption of having had an opportunity to ask for asylum in Serbia is – in principle – rebuttable. However, this possibility is likely to remain theoretical for a number of reasons:
- The law requires the applicant to prove that they could not present an asylum claim in Serbia.[8] This represents an unrealistically high standard of proof (as compared to the lower standard of ‘to substantiate’, which is generally applied in Hungarian asylum law). An asylum seeker, typically smuggled through a country unknown to them is extremely unlikely to have any verifiable, ‘hard’ evidence to prove such a statement;
- The impossibility to have access to protection in Serbia does not stem from individual circumstances, but from the general lack of a functioning asylum system. Therefore, it is absurd and conceptually impossible to expect an asylum seeker to prove that, for individual reasons, they had no access to a functioning system in Serbia which in reality does not exist;
- If the claim is considered inadmissible, the NDGAP has to deliver a decision in maximum 15 days (8 days at the border).[9] This extremely short deadline adds to the presumption that no individualised assessment will be carried out.
- These amendments not only breach the definition of ‘safe third country’ under EU and Hungarian law,[10]but they also led, in practice, to the massive violation of Hungary’s non-refoulement and protection obligations enshrined in the 1951 Refugee Convention, Article 3 ECHR, and Articles 18 and 19 of the EU Charter of Fundamental Rights. Since early 2015, the vast majority of asylum seekers have come to Hungary from the worst crises of the world (Afghanistan, Syria and Iraq). Most of them had no opportunity to explain why they had to flee. Instead, they were exposed to the risk of an immediate removal to Serbia, a country where protection is currently not available. This means that they were deprived of the mere possibility to find protection and at the real risk of chain refoulement.
The former IAO issued inadmissibility decisions based on Serbia being a safe third country also to vulnerable applicants, for example transgender persons from Cuba, disabled or single women victims of sexual and gender-based violence. They did so in the case of an extremely vulnerable single woman from Cameroon, who was a victim of trafficking in Serbia, held in hostage and raped several times. The HHC obtained an interim measure from the UN Human Rights Committee,[11] and after that her case was finally decided on the merits, UNHRC decided the case to be inadmissible, since the applicant was no longer at risk of being sent back to Serbia. Regrettably, the Human Rights Committee did not take into account the fact that the applicant was able to get protection in Hungary only due to the interim measure issued and, therefore, there was clearly a violation of Article 13 of the International Covenant on Civil and Political Rights – right to an effective domestic remedy.
On 14 March 2017, the ECtHR issued a judgment in the Ilias and Ahmed v. Hungary[12] case and found a violation of Article 3 of ECHR in respect of the applicants’ return to Serbia based on safe third country grounds, because of the exposure to the risk of chain-refoulement to North Macedonia and onwards. The Court stated that the Hungarian authorities had failed to carry out an individual assessment of each applicant’s case, did not take their share of the burden of proof and placed the applicants in a position where they were not able to rebut the presumption of safety, since the Government’s arguments remained confined to the ‘schematic reference’ to the inclusion of Serbia in the national list of safe countries. The Court emphasised that relying on the Decree is not a sufficient reason to consider a country a safe third country and that the ratification of the 1951 Refugee Convention is not a sufficient condition to qualify a country as safe. The government appealed against the judgement and the Grand Chamber of the ECtHR delivered its judgement on 21 November 2019 and confirmed the violation of Article 3 with regard to the applicants’ return to Serbia.[13]
However, the execution of the judgement remains problematic. The Committee of Ministers of the Council of Europe has issued four decisions on the execution of the judgement.[14] At their latest meeting, on 21 September 2023 the Committee adopted an interim resolution, where they strongly urged the authorities to intensify their efforts in reforming the asylum system in order to afford effective access to means of legal entry; exhorted the authorities to terminate, without further delay, the practice of removing asylum-seekers to Serbia pursuant to section 5 of the State Borders Act without their identification or examination of their individual situation and reiterated its call on the authorities to introduce an effective remedy providing a person alleging that their expulsion procedure is “collective” in nature with an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of their complaints carried out by an independent and impartial domestic forum, in line with the Court’s case-law..[15]
Use of the safe third country ground
In 2017, the former IAO stopped issuing inadmissibility decisions based on safe third country grounds. The reasons for the change in practice are not known, but can be potentially attributed to the Ilias and Ahmed judgment. In 2019, inadmissibility decisions based on safe third country grounds were not issued either, as inadmissibility under the Hybrid ground became the norm. In 2020 the HHC is aware of one case in which the NDGAP again used the safe third country ground in an inadmissibility decision. According to the HHC’s information, no inadmissibility decision based on the safe-third country grounds was issued in 2021 nor in 2022. The NDGAP did not provide the requested information for 2021 nor for 2022 or 2023.[16]
[1] Section 51(4) Asylum Act.
[2] Section 51(11) Asylum Act.
[3] Section 51(6) Asylum Act.
[4] Section 51A Asylum Act.
[5] CJEU, joint cases C-924/19 and C-925/19 PPU, 14 May 2020.
[6] HHC’s meeting with Serbian border guards, June 2021.
[7] Government Decree 191/2015 (VII. 21.) on the national list of safe countries of origin and safe third countries. The original list did not include Turkey, but the country was inserted as of 1 April 2016.
[8] Section 51(5) Asylum Act.
[9] Section 47(2) Asylum Act.
[10] Recital 46 and Article 38 recast Asylum Procedures Directive; Section 2(i) Asylum Act.
[11] Human Rights Committee, Communication No 2768/2015.
[12] ECtHR, Ilias and Ahmed v. Hungary, Application No. 47287/15, Judgment of 14 March 2017, EDAL, available at: https://bit.ly/3amxQrf.
[13] ECtHR, Ilias and Ahmed v. Hungary, Application No. 47287/15, Judgment of November 2019, EDAL, available at: https://bit.ly/2yoNSDD.
[14] Decisions in June 2021, November-December 2021, September 2022 and September 2023. Council of Europe, H46-17 Ilias and Ahmed v. Hungary (Application No. 47287/15), Supervision of the execution of the European Court’s judgments, available at: https://bit.ly/3XGGCZZ.
[15] Committee of Ministers, Interim Resolution CM/ResDH(2023)260, Execution of the judgments of the European Court of Human Rights, Ilias and Ahmed group against Hungary, adopted by the Committee of Ministers on 21 September 2023 at the 1475th meeting of the Ministers’ Deputies, available at: https://bit.ly/44mhAnu.
[16] Information not provided by NDGAP on 7 February 2022 and 19 February 2024.