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Article 4 AsylG sets 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 their conduct, the inadmissibility decision ceases to be valid.[1]
There is no list of safe third countries and the concept is rarely applied.
Safety criteria
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 they are 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]
The conditions for the application of the safe third country concept have been clarified by the Constitutional Court and VwGH. 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.[4] 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-to-date information of relevant organisations to be able to assess the factual situation.[5]
Connection criteria
According to the aforementioned Constitutional Court and VwGH rulings, asylum applications cannot simply be rejected based on the mere fact that the applicant transited through or stayed in a so-called safe third country. When assessing the security of third countries, it does not only depend on formal criteria such as whether the country has ratified the Geneva Refugee Convention, the submission of a declaration under Art 52 ECHR and the existence of an asylum legislation, but also of whether the protection is actually granted.[6]
[1] Article 4(5) AsylG.
[2] Article 4(2) AsylG.
[3] Article 4(3) AsylG.
[4] VwGH, Decision 98/01/0284, 11 November 1998, available in German at: https://bit.ly/3ZTLVH7.
[5] VfGH, Decision U 5/08, 8 October 2008, available in German at: http://bit.ly/2jilW73.
[6] VwGH, Decision 98/01/0284, 11 November 1998, available in German at: https://bit.ly/3ZTLVH7; VfGH, Decision U 5/08, 8 October 2008, available in German at: https://bit.ly/42i5URj.