The safe third country concept is contained in Section 26a of the Asylum Act.
By definition of the law, all Member States of the European Union are safe third countries. In addition, a list of further safe third countries can be drawn up.[1] In those countries the application of the 1951 Refugee Convention and of the European Convention on Human Rights (ECHR) has to be ‘ensured’. The list is an addendum to the Asylum Act and must be adopted by both chambers of the German Parliament. The Federal Government is entitled to remove a country from that list if changes in its legal or political situation ‘give reason to believe’ that the requirements for a safe third country are not met any longer. At present, the list of further safe third countries consists of Norway and Switzerland.
From its wording, the safe third country concept only applies to the German (constitutional) asylum, but the Federal Constitutional Court found in a landmark decision in 1996 that its scope extends to refugee protection and to other forms of protection as well.[2]
Accordingly, asylum seekers can be sent back to safe third countries with neither an asylum application, nor an application for international or national protection being considered. Today the safe third country concept has its main impact at land borders.[3] Federal Police shall refuse entry if a foreigner, who has entered from a safe third country, requests asylum at the border. Furthermore, Federal Police shall immediately initiate removal to a safe third country if an asylum seeker is apprehended at the border without the necessary documents.[4] Asylum applications may not be accepted or referred to the responsible authority by the Federal Police if entry into the territory is denied, unless it turns out that Germany is responsible for processing the asylum procedure based on EU law, e.g. because Germany has issued a visa. In practice, the provisions enabling the Federal Police to send asylum seekers back to the border have been largely ineffective for many years. This is due to the fact that no systematic border controls took place at land borders and because returns of asylum seekers can only be carried out under the Dublin regulation as a matter of principle. However, in 2018 a new procedure was introduced which enables the Federal Police to refuse entry at the border. This procedure is based on administrative regulations only and on agreements with Spain and Greece (i.e. no legislative changes were implemented). The practice has been discontinued since May 2021, after a court decision ruled it unlawful (see Access to the territory and push backs).
[1] Section 26a(2) Asylum Act.
[2] Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1938/93, 2 BvR 2315/93, BVerfGE 94, 49 (189).
[3] Section 18 Asylum Act.
[4] The border area is defined as a strip of 30 kilometres.