Safe third country

Portugal

Country Report: Safe third country Last updated: 30/11/20

Author

Portuguese Refugee Council Visit Website

The Asylum Act provides for a definition of “safe third country” that presents some inconsistencies with Article 38 of the recast Asylum Procedures Directive.[1] These inconsistencies were raised in 2014 by CPR during the legislative process that transposed the second-generation acquis into national law,[2] and include the following:

  1. The provision applies ratione personae to asylum seekers alone, as opposed to applicants for international protection;[3]
  2. The provision does not include the absence of a risk of serious harm as a condition for the application of the concept;
  3. The provision does not include the possibility for the applicant to challenge the existence of a connection between him or her and the third country;
  4. A standard of possibility rather than reasonableness is set in the provision concerning the return on the basis of a connection between the applicant and the third country concerned.[4]

It should also be noted that the Asylum Act, while excluding EU Member States from the concept of safe third country,[5] does not provide for specific rules regarding EU and non-EU European safe third countries.

Although the concept is a ground for inadmissibility (see Admissibility Procedure),[6] the authorities have not introduced further rules in national legislation to date (e.g. relevant connection indicators or rules regarding the methodology used by SEF as regards the application of the concept to a particular country or to a particular applicant).

According to the information available to CPR, SEF does not have a list of countries designated to be generally safe as a matter of administrative guidance. While the number of inadmissibility decisions on safe third country grounds is generally very limited, countries designated as such in the past have included Morocco, Turkey, South Africa, Ecuador and Brazil.

According to SEF, in 2019 there were 2 negative decisions based on the concept of “safe third country”, both related to Brazil (see Admissibility Procedure).

Connection criteria

To date, the establishment of a connection rendering the applicant’s transfer to a safe third country reasonable by SEF has been based on indicators such as transit (sometimes as short as a few weeks), the registration of an asylum application or residence rights, and the remaining legal requirements of the clause have usually not been (adequately) analysed. A ruling of TAC Lisbon from November 2017 considered the transit and the holding of a 3-month visa as evidence of a sufficient connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country.[7] This decision was later overturned by TCA South, according to which the mere transit for 28 days and the submission of an asylum application were not sufficient to establish a meaningful connection for purposes of rendering the applicant’s transfer to the safe third country reasonable.[8]

Asylum seekers assisted by CPR whose applications were rejected on the basis of this inadmissibility ground were not given a document in the language of the safe third country stating that their claim was not examined on the merits. It should be noted that the issuance of such document is currently not enshrined in the law.

 


[1]  Article 2(1)(r) Asylum Act.

[2] CPR, Proposta de Lei 187 – XII que altera a Lei n.º 27/2008, de 30 de Junho – Comentários, January 2014, available in Portuguese at: http://bit.ly/2zT1oef.

[3] Article 2(1)(r) Asylum Act.

[4] Article 2(1)(r)(i) Asylum Act.

[5] Article 19-A(1)(d) Asylum Act that excludes EU Member States from the concept of third safe country.

[6] Article 19-A(1)(d) Asylum Act.

[7] TAC Lisbon, Decision 2163/17.7BESLB, 30 November 2017, unpublished.

[8]  TCA South, Decision 2163/17.7BESLB, 15 March 2018, available in Portuguese at: https://bit.ly/2DpS327. A previous decision from TAC Lisbon had already excluded the mere transit and the presentation of an asylum application as sufficient to establish a meaningful connection: TAC Lisbon, Decision 1792/17.3BESLB, 30 September 2017, unpublished.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation