The Asylum Act provides for a definition of “safe third country” that presents some inconsistencies with Article 38 of the recast Asylum Procedures Directive. These inconsistencies were raised in 2014 by CPR during the legislative process that transposed the second-generation acquis into national law, and include the following:
- The provision applies ratione personae to asylum seekers alone, as opposed to applicants for international protection;
- 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 reasonableness is set in the provision concerning the return on the basis of a connection between the applicant and the third country concerned.
While excluding EU Member States from the concept of safe third country, 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), 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 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 designated as such in the past included Brazil, Ecuador, Morocco, Mozambique, South Africa, and Turkey.
According to SEF, in 2020 there were no negative decisions based on the concept of “safe third country” (see Admissibility Procedure).
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 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.
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.
 Article 2(1)(r) Asylum Act.
 Article 2(1)(r) Asylum Act.
 Article 2(1)(r)(i) Asylum Act.
 Article 19-A(1)(d) Asylum Act that excludes EU Member States from the concept of third safe country.
 Article 19-A(1)(d) Asylum Act.
 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.