Safe third country

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Following the reform that entered into force on 22 March 2018, the Aliens Act contains the “safe third country” concept[1] as a ground for inadmissibility.[2] The CGRS has already stated that it will only apply this concept exceptionally and that there will not be a list of safe third countries. In 2021, this concept was used in 13 cases, primarily for people having received international protection status in Switzerland.[3] No such figures were provided for 2022.

Safety criteria

A country may be considered as a safe third country where the following principles apply:[4]

1. Life and liberty are not threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion;
2. There is no risk of serious harm;
3. The principle of non-refoulement is respected;
4. The prohibition of expulsion in violation of the prohibition on torture and other cruel, inhuman or degrading treatment is complied with; and
5. The applicant has the possibility to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention.

Connection criteria

A third country can only be regarded as a safe third country if the applicant has such a relationship with the third country based on which it can reasonably be expected of him or her to return to that country and to have access thereto.[5] The existence of a connection should be assessed based on “all relevant facts and circumstances, which may include the nature, duration and circumstances of previous stay”.[6]

The Explanatory Memorandum to the Law of 21 November 2017 gives examples of links, such as a previous stay in a third country (e.g. a long visit) or a family bond. The Explanatory Memorandum also states that for efficiency, only a minimum check of access is required: it is sufficient that the authorities suspect that the applicant will be admitted to the territory of the third country concerned. In this regard, the Explanatory Memorandum states that recast Asylum Procedures Directive does not demonstrate that the “access” element should already be examined when applying the safe third country concept. “For reasons of efficiency”, the legislator opted to consider this additional condition when examining whether a particular third country can be considered safe for the applicant. It is, therefore, necessary to be able to assume that the applicant will be given access to the territory of the third country concerned.

[1] Article 57/6/6 Aliens Act.

[2] Article 57/6(3)(2) Aliens Act.

[3] Myria, Contact meeting 19 January 2022, available in French and Dutch at: https://bit.ly/3sy9SFN, 37.

[4] Article 57/6/6(1) Aliens Act.

[5] Article 57/6/6(2) Aliens Act.

[6] Ibid.