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An asylum application can be declared inadmissible in case a third country is regarded as a safe third country for the asylum seeker.[1] There is no list of safe third countries. However, some internal information messages on the safe third country concept have been requested via the Public Access Act. These internal documents list a number of third countries either as ‘safe’ or ‘not safe’.[2] The concept is applied on a case-by-case basis. There are three criteria that have to be fulfilled regarding safety, connection and admission. From the internal information message 2021/8 it can be inferred that the safe third country concept is mostly used in cases that might otherwise be accepted.
Rated as a safe third country according to internal information messages:
– Argentina
– Armenia
– Brazil
– Canada
– Chile
– Costa Rica
– Ecuador
– Gambia
– Georgia
– Morocco
– Nigeria
– Peru
– Philippines
– Rwanda
– South Africa
– South Korea
– Suriname
– Uganda
– United Kingdom
– United States of America
– Uruguay
Not rated as a safe third country according to internal information messages:
– Albania
– Algeria
– Australia
– Azerbaijan
– Bahrain
– Belarus
– Bosnia and Herzegovina
– Cambodia
– Colombia
– Egypt
– Haiti
– Honduras
– India
– Indonesia
– Iran
– Iraq
– Israel
– Japan
– Jordan
– Kazakhstan
– Kenya
– Kosovo
– Kyrgyzstan
– Lebanon
– Malawi
– Malaysia
– Maldives
– Mexico
– Moldova
– North Macedonia
– Oman
– Panama
– Qatar
– Russia
– Saint Kitts and Nevis
– Saudi Arabia
– Somalia
– Sudan
– Thailand
– Tunisia
– Turkey
– Ukraine
– United Arab Emirates
– Uzbekistan
Safety criteria
Article 3.106a(1) of the Aliens Decree provides the criteria for a country to be considered a safe third country. This is an implementation of Article 38 of the Asylum Procedures Directive. Article 3.37e of the Aliens Regulation provides that the Secretary of State’s assessment as to whether a third country can be considered to be safe should be based on a number of sources of information, specifically from EASO, UNHCR, the Council of Europe and other relevant / authoritative / reputable organisations. In four cases concerning Kuwait, the United Arab Emirates and Russia, the Council of State ruled that the State Secretary must rely on country of origin information, which must be transparent and applicable to the individual asylum seeker’s case.[3]
The law does not expressly require the third country to have ratified the Refugee Convention without limitation. The Council of State found that Article 38 of the recast Asylum Procedures Directive does not require the third country to have ratified the Refugee Convention to be considered a safe third country. Nevertheless, the third country must abide by the principle of non-refoulement. The cases concerned the United Arab Emirates and Kuwait.[4]
In January 2020, the Regional Court of Amsterdam ruled that it considered Turkey a safe third country for Uyghurs from China.[5] Reasons for this judgment were the historical link between Turkey and the Uyghur community and that twenty to thirty thousand Uyghurs live in Turkey. Since 2018, Uyghurs have a special long-term residence permit. Other refugees and asylum seekers in Turkey do not have the right to apply for long-term residence. This permit allows Uyghurs to apply for Turkish citizenship after five years. Although Turkey is rated as non-safe third country in general, the Aliens Circular does state that for Uyghur applicants it will be assessed whether Turkey is a safe third country.[6] In 2021, the Dutch Council of Refugees has seen one decision in which the IND concluded that Turkey was not a safe third country for Uyghurs.
In a case about Armenia as a safe third country, the Council of State ruled that the State Secretary cannot use only the designation of Armenia as a safe country of origin to prove that Armenia is a safe third country for any applicant.[7] It must either be shown which sources were the basis for this designation or indicate the sources that in the specific case were the basis for the assessment of Armenia as a safe third country.
Some countries, despite being assessed as safe, did not pass the test. This was the case, for example, for South Africa. In a letter dated 6 December 2016, the State Secretary indicated that South Africa cannot be regarded as a safe country of origin, since this country is party to a number of human rights treaties and has laws and other regulations that offer these guarantees, but that these are insufficiently met and that, furthermore, the system of legal remedies does not provide sufficient guarantees against the violation of rights and freedoms.[8] The Regional Court of Den Bosch and Utrecht therefore ruled that South Africa could not meet the security criterion of the safe third country assessment framework either.[9]
Connection criteria
On the basis of Article 3.106a(2) of the Aliens Decree a connection (band) with the third country is required on the basis of which it would be reasonable for the asylum seeker to go to that country. This has been elaborated on in Article 3.37e(3) of the Aliens Regulation and in Paragraph C2/6.3 of the Aliens Circular. According to the IND such a connection exists where:[10]
- The husband / wife or partner of the asylum seeker has the nationality of the third country;
- First or direct family members reside in the third country, with whom the asylum seeker is still in contact; or
- The asylum seeker has stayed in the third country.
As regards the nationality of the partner of the asylum seeker, the Regional Court Arnhem ruled that there is still a connection between the asylum seeker and the country of nationality of his partner when the partner has permanently moved away from her country of nationality.[11] The Regional Court The Hague examined the relevance of a connection (band) to the United States for an Afghan national who worked as an interpreter to the US Army and US Government in Afghanistan. The court concluded that a sufficient connection existed for the “safe third country” concept to be applicable,[12] although the admission criterion was not met.
The Dutch Council for Refugees is not aware of cases in which mere transit through a third country was considered to be sufficient to declare the asylum request inadmissible on the basis of the concept of safe third country.
Admission criterion
Positive case law with regard to the admission criterion is scarce. Although national policy entails a heavy burden of proof for the IND, in practice it is quickly assumed that this burden of proof has been met. Even in subsequent asylum applications in which the asylum seeker argues that he was not admitted to the third country of origin, is often negative. For example, the Regional Court Utrecht considered Brazil to be a safe third country for two Turkish asylum seekers, even though their passports were expired. The Court ruled that re-admission to Brazil was probably possible after asking for a visa or a laissez-passer at the Brazilian embassy and then asking for asylum again upon their arrival in Brazil.[13] According to the internal information message 2021/8 states that the asylum seeker would have to make serious attempts to demonstrate that he is not admitted to the third country after the inadmissibility of his request, which shows similarities with the ‘no fault’ policy. This shows that the IND sets very high standards for asylum seekers in this regard.
[1] Article 30a(1)(c) Aliens Act.
[2] All internal information messages are published at: https://www.ShouldIStayorShouldIgo.nl.
[3] Council of State, Decisions No 201704433/1, No 201703605/1, No 201609584/1, No 201606126/1, 13 December 2017.
[4] Council of State, Decisions No 201704433/1, No 201703605/1, No 201609584/1, 13 December 2017.
[5] Regional Court Amsterdam, Decision No NL19.30580, 15 January 2020.
[6] Paragraph C7/8.8 Aliens Circular.
[7] Council of State, ECLI:NL:RVS:2020:2356, 6 October 2020.
[8] KST 19637, nr. 2266, 6 December 2016.
[9] Regional Court Den Bosch, 27 December 2017, Decision No NL17.12603, Regional Court Utrecht, 29 June 2021, Decision No NL20.17017. The Council of State recently declared the appeal of the State Secretary unfounded, ECLI:NL:RVS:2022:450, 11 February 2022.
[10] Paragraph C2/6.3 Aliens Circular.
[11] Regional Court Arnhem, Decision No NL19.13391, 26 July 2019.
[12] Regional Court The Hague, Decision No 17/8274, 26 June 2017.
[13] Regional Court Utrecht, ECLI:NL:RBDHA:2020:7575, 15 July 2020.