Author
The Asylum Act provides for a definition of ‘safe third country’ that presents some inconsistencies with Article 38 of the recast Asylum Procedures Directive.[1] These inconsistencies were raised by CPR during the legislative process that transposed the second-generation acquis into national law,[2] and include the following:
- The wording of the provision seems to indicate that it applies ratione personae to asylum seekers alone, as opposed to applicants for international protection;[3]
- The provision does not include the absence of a risk of serious harm as a condition for the application of the concept;
- The provision does not include the possibility for the applicant to challenge the existence of a connection between him or her and the third country;
- A standard of possibility rather than one of reasonableness is set with regard to return on the basis of a connection between the applicant and the third country concerned.[4]
In one of the amendments to the Asylum Act enacted in 2023, a paragraph was added to the definition of the “safe third country” concept establishing that if the country at stake does not authorise the applicant to enter its territory, they must have access to the Portuguese asylum procedure.[5]
While excluding EU Member States from the concept of safe third country,[6] the Asylum Act does not provide for specific rules regarding EU and non-EU European safe third countries.
Although the concept is a ground for inadmissibility (see Admissibility Procedure),[7] the authorities have not introduced further rules in national legislation to date (e.g., relevant connection indicators or rules regarding the application of the concept to a particular country or to a particular applicant). AIMA has confirmed that there is no list of safe third countries.
According to CPR’s observation, in contrast to previous years, the number of inadmissibility decisions on safe third country grounds significantly increased in 2024. Countries such as Angola, Brazil, Canada, Cape Verde, Israel, Morocco, Mozambique, Panama, Senegal, United Kingdom, United States of America, and Zambia were deemed as safe third countries by the Portuguese authorities, however this designation was not consistent.
AIMA did not provide information on its practices in this regard. According to data collected by CPR based on the communications made by the authorities in line with the Asylum Act and contacts from asylum applicants, at least 84 cases were rejected in 2024 on the basis of the safe third country concept. In 2023, CPR only had information about 8 cases being rejected on this ground.
Out of these 84 cases, only 17 cases were rejected solely on the basis of the safe third country concept and thus deemed inadmissible; the other 67 were simultaneously rejected as manifestly ill-founded. Many of these decisions concerned border procedure cases.
Following an amendment enacted in 2023, according to the Asylum Act, if a case is rejected exclusively due to the application of the safe third country concept, the applicant must receive a document informing the authorities of said third country that the merits of the asylum application have not been assessed in Portugal. Such document must be issued in the third country’s language.[8]
However, asylum applicants assisted by CPR whose applications were rejected on the basis of this inadmissibility ground were not given a document in the language of the safe third country stating that their claim was not examined on the merits.
Connection criteria
CPR analysed a number of inadmissibility decisions grounded on the safe third country concept issued by AIMA in the course of 2024 and concluded that, typically, the criteria of the concept are not adequately analysed by the authorities. The reasons provided for such decisions do not engage with the legal requirements for the application of the concept and consequent inadmissibility of the asylum application, and do not include an individual assessment, even when applicants allege security risks in the third country designated as safe by AIMA.
In the cases observed, mere transit for a few days/months is sufficient for the authorities to deem the safe third country concept applicable to a case. In at least one of the cases, the authorities even designated more than one country as safe for the applicant.
A 2018 judgment of TCA South determined that mere transit (for 28 days) and the submission of an asylum application were not sufficient to establish a meaningful connection for purposes of rendering the applicant’s transfer to the safe third country reasonable.[9]
A decision from TCA South issued in 2021 focused on the application of the safe third country concept to the United States of America.[10] The applicant, a transgender woman from Honduras, left her country at the age of 16 fearing persecution on the basis of her gender identity. Since then, she lived in the United States irregularly for a number of years. She eventually left because, inter alia, she was not able to apply for asylum or to otherwise regularise her stay in the country, was exposed to extreme poverty as a consequence, and feared discrimination and violence on the grounds of her gender identity (particularly in light of the risk of being subject to migration detention). The United States was deemed as a safe third country both by SEF and the first instance court.
Closely following the reasoning adopted by the lower court, in its analysis, the TCA South considered, inter alia, that:
- It is ‘unequivocal’ that the United States is a safe country, and, as such, the Portuguese authorities do not have to anticipate the actions of the American authorities as it must be assumed that fundamental rights are respected in the country (arguing that a similar reasoning to that applied to EU Member States should be adopted);
- There was an effective link because the applicant lived in the third country for a number of years, studied and worked there and has personal, cultural and language connections to it;
- It was not deemed relevant that the applicant was irregularly present in the country and the risk of deportation to the country of origin was disregarded, based on the fact that, as a State Party to the 1951 Convention, the United States are bound to the prohibition of refoulement.
While the applicant also alleged that in order to have a chance to regularly stay in the United States she would necessarily have to return to Honduras, where she feared persecution, TCA South has disregarded the concern, deeming it only relevant that there is a chance for the applicant to regularise her stay in the United States and pointing to the change of President as an indicator of improvements in the country’s migratory system.
According to CPR, this is a highly flawed decision for a number of reasons, in particular:
- It is unclear why the Court considers that a presumption of respect for fundamental rights should be applied to the United States and whether it should also be applied to other countries (and which criteria should be used to assess that);
- While the applicant indeed lived in the United States for a number of years and has clear links to the country, the Court failed to analyse the impacts of the irregular nature of her stay and the risks that it implied. Furthermore, the Court did not assess how the applicant could return to a country where she did not legally reside;
- While referring to the prohibition of refoulement applicable to the United States, the Court seemed to disregard that the same prohibition applies to Portugal and failed to assess the likelihood and potential impact of a return to Honduras (while accepting that it may occur), in order to regularise the applicant’s stay in the United States;
- The Court seems to assume that a change in the Presidency automatically entails a change in a specific policy area without fully substantiating such an assumption.
Despite all of these flaws, in 2022, the STA refused to analyse an appeal concerning this case on the grounds that its relevance was limited to the individual situation, and that every element of the case indicated that the lower courts had decided it correctly, following a careful, coherent and reasonable interpretation of the law.[11]
[1] Article 2(1)(r) Asylum Act.
[2] CPR, Proposta de Lei 187 – XII que altera a Lei n.º 27/2008, de 30 de Junho – Comentários, January 2014, available in Portuguese here.
[3] Article 2(1)(r) Asylum Act.
[4] Article 2(1)(r)(i) Asylum Act.
[5] Article 2(1)(r)(iv) Asylum Act.
[6] Article 19-A(1)(d) Asylum Act that excludes EU Member States from the concept of third safe country.
[7] Article 19-A(1)(d) Asylum Act.
[8] Article 19-A(3) Asylum Act.
[9] TCA South, Decision 2163/17.7BESLB, 15 March 2018, available in Portuguese here. A previous decision from TAC Lisbon had already excluded the mere transit and the presentation of an asylum application as sufficient to establish a meaningful connection: TAC Lisbon, Decision 1792/17.3BESLB, 30 September 2017, unpublished.
[10] TCA South, Decision 2238/20.5BELSB, 7 October 2021, available here.
[11] STA, Decision 02238/20.5BELSB, 13 January 2022, available here.