An asylum application can be declared inadmissible in case a third country is regarded a safe third country for the asylum seeker. There is no list of safe third countries. The concept is applied on a case by case basis. There are three criteria that have to be fulfilled: the safety criterium, the connection criterium and the admission criterium.
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 also applicable to the individual asylum seeker’s case. It also noted that a country qualifies as a safe third country when the applicant is admitted in that country.
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.
In January 2020, the Regional Court of Amsterdam ruled that it considered Turkey a safe third country for Uyghurs from China. 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.
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:
- 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. 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 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.
Positive case law with regard to the admission criterion is scarce. Although the policy assumes 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 able to get 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.
Article 30a(1)(c) Aliens Act.
Council of State, Decisions No 201704433/1, No 201703605/1, No 201609584/1, No 201606126/1, 13 December 2017.
Council of State, Decisions No 201704433/1, No 201703605/1, No 201609584/1, 13 December 2017.
Regional Court Amsterdam, Decision No NL19.30580, 15 January 2020.
Paragraph C2/6.3 Aliens Circular.
Regional Court Arnhem, Decision No NL19.13391, 26 July 2019.
Regional Court The Hague, Decision No 17/8274, 26 June 2017.
Regional Court Utrecht, ECLI:NL:RBDHA:2020:7575, 15 July 2020.