Author
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 by CPR during the legislative process that transposed the second-generation acquis into national law,[2] and include the following:
- The wording of the provision seems to indicate that it applies ratione personae to asylum seekers alone, as opposed to applicants for international protection;[3]
- The provision does not include the absence of a risk of serious harm as a condition for the application of the concept;
- 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;
- A standard of possibility rather than one of reasonableness is set with regard to return on the basis of a connection between the applicant and the third country concerned.[4]
While excluding EU Member States from the concept of safe third country,[5] the Asylum Act 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 application of the concept to a particular country or to a particular applicant).
According to the information available to CPR, SEF does not currently 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 low, countries such as include Brazil, Ecuador, Morocco, Mozambique, South Africa, United States of America, and Turkey have been deemed as such.
According to SEF, in 2022 there were no negative decisions based on the concept of ‘safe third country’ (see Admissibility Procedure).[7]
Connection criteria
To date, SEF has used indicators such as transit (sometimes as short as a few weeks), the registration of an asylum application or the existence of residence rights to assess the connection between the applicant and the third country. The remaining legal requirements of the clause have usually not been (adequately) analysed.
A 2018 judgment of TCA South determined that 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]
A decision from TCA South issued in 2021 focused on the application of the safe third country concept to the United States of America.[9] The applicant, a transgender woman from Honduras, left her country at the age of 16 fearing persecution on the basis of her gender identity. Since then, she lived in the United States irregularly for a number of years. She eventually left because, inter alia, she was not able to apply for asylum or to otherwise regularise her stay in the country, was exposed to extreme poverty as a consequence, and feared discrimination and violence on the grounds of her gender identity (particularly in light of the risk of being subject to migration detention). The United States was deemed as a safe third country both by SEF and the first instance court.
Closely following the reasoning adopted by the lower court, in its analysis, the TCA South considered, inter alia, that:
- It is ‘unequivocal’ that the United States is a safe country, and, as such, the Portuguese authorities do not have to anticipate the actions of the American authorities as it must be assumed that fundamental rights are respected in the country (arguing that a similar reasoning to that applied to EU Member States should be adopted);
- There was an effective link because the applicant lived in the third country for a number of years, studied and worked there and has personal, cultural and language connections to it;
- It was not deemed relevant that the applicant was irregularly present in the country and the risk of deportation to the country of origin was disregarded, based on the fact that, as a State Party to the 1951 Convention, the United States are bound to the prohibition of refoulement.
While the applicant also alleged that in order to have a chance to regularly stay in the United States she would necessarily have to return to Honduras, where she feared persecution, TCA South has disregarded the concern, deeming it only relevant that there is a chance for the applicant to regularise her stay in the United States and pointing to the change of President as an indicator of improvements in the country’s migratory system.
This is a highly flawed decision for a number of reasons, in particular:
- It is unclear why the Court considers that a presumption of respect for fundamental rights should be applied to the United States and whether it should also be applied to other countries (and which criteria should be used to assess that);
- While the applicant indeed lived in the United States for a number of years and has clear links to the country, the Court failed to analyse the impacts of the irregular nature of her stay and the risks that it implied. Furthermore, the Court did not assess how the applicant could return to a country where she did not legally reside;
- While referring to the prohibition of refoulement applicable to the United States, the Court seemed to disregard that the same prohibition applies to Portugal and failed to assess the likelihood and potential impact of a return to Honduras (while accepting that it may occur), in order to regularise the applicant’s stay in the United States;
- The Court seems to assume that a change in the Presidency automatically entails a change in a specific policy area without fully substantiating such an assumption.
Despite all of these flaws, in 2022, the STA refused to analyse an appeal concerning this case on the grounds that its relevance was limited to the individual situation, and that every element of the case indicated that the lower courts had decided it correctly, following a careful, coherent and reasonable interpretation of the law.[10]
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] However, data collected by CPR on the basis of communications from SEF/legal support provided to asylum seekers indicates that there was in fact a residual number of such decisions in 2022.
[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.
[9] TCA South, Decision 2238/20.5BELSB, 7 October 2021, available at: https://bit.ly/3Omfs6W.
[10] STA, Decision 02238/20.5BELSB, 13 January 2022, available at: https://bit.ly/3ZcrNj6.