Author
According to Article 53 IPA, a safe third country is a country in which the applicant was present before arriving to the Republic of Slovenia and in which the applicant had a real opportunity to apply for international protection but failed to do so without a justified reason. Based on the safe third country concept, the competent authority can dismiss the application for international protection as inadmissible.[1]
According to the law, a country is declared a safe third country by the government based on a proposal of the Ministry of Interior, which regularly monitors the situation in the country through the information gathered by other EU Member States, EU institutions and other relevant international organisations.[2]
In case the Ministry of Interior assesses that the conditions regarding the human rights situation have deteriorated considerably or if it doubts whether the country still fulfils the conditions for being considered as a safe third country, the Ministry of Interior can re-examine the safety of the country. In case the country can no longer be considered a safe third country, the Ministry of Interior can make a proposal to remove it from the list of safe third countries.[3]
The Government notifies the European Commission of the declaration of a country as a safe third country and of changes relating thereto.[4]
The government adopted an Ordinance on 15 May 2008 to declare Croatia a safe third country.[5] This is the only country to have been declared as such by Slovenian authorities and the safe third country principle has not been used since the accession of Croatia to the EU in July 2013.
In 2022, the Migration directorate did not apply the safe third country concept.
Safety criteria
In order to be considered a safe third country, a country must meet the following requirements:[6]
- Life and freedom in the country are not threatened on account of race, religion, citizenship, membership of a particular social group or political opinion;
- There is no risk of serious harm;
- The principle of non-refoulement in accordance with the Refugee Convention is observed;
- The prohibition of removal which would result in the violation of the prohibition of torture and cruel, inhuman and degrading treatment as defined in international law is observed;
- The applicant has the possibility to apply for refugee status and, if it is established that the person is in fact a refugee, to obtain protection in accordance with the Refugee Convention.
When faced with the safe third country argument, asylum applicants can provide facts and evidence showing that the country in question is not a safe third country for them personally and that due to justified reasons they were not able to apply for international protection there.[7] In a 2013 case concerning the safe third country provisions in force prior to the adoption of IPA, the Supreme Court had stressed that the burden of proof lies on the applicant to demonstrate that a country does not meet the criteria to be deemed a safe third country.[8]
Connection criteria
The law does not specify when a sufficient connection between the applicant and safe third country – “a real opportunity to apply for international protection” exists.
It should be noted that, when reviewing the legal provision in force prior to the adoption of the IPA, the Constitutional Court had found that the ambiguity with respect to the requisite degree of connection between an applicant and a third country did not allow a clear conclusion as to whether mere transit through a country is sufficient or whether the applicant needs to benefit from legal residence there. On that basis, the Constitutional Court had declared that provision unconstitutional.[9]
In an earlier case, the Supreme Court had found that it is not necessary for direct or indirect contact to have taken place between the applicant and the authorities or institutions within the concerned third country; it is enough if the circumstances of the individual case reveal that the applicant had objective and subjective possibilities to establish contact with the authorities of the safe third country.[10]
According to the law, applicants whose claims are rejected as inadmissible on the ground of a safe third country concept are to be given a document in the language of the safe third country stating that their claim was not examined on the merits.[11]
If a safe third country refuses the entry of the applicant to its territory, the Migration directorate revokes the inadmissibility decision and proceeds to the examination of the asylum application.[12]
[1] Article 51 IPA.
[2] Article 54(2) IPA.
[3] Ibid.
[4] Article 54(3) IPA.
[5] Ordinance on the proclamation of the Republic of Croatia as safe third country, Official Gazette of RS, No. 50/2008.
[6] Article 54(1) IPA.
[7] Article 55(1) IPA.
[8] Supreme Court, Decision I Up 39/2013, 14 February 2013, available at: http://bit.ly/2mXKMwX.
[9] Constitutional Court, Decision U-I-155/11, 18 December 2013, available at: http://bit.ly/2Dvfl8w.
[10] Supreme Court, Decision I Up 39/2013, 14 February 2013, available at: http://bit.ly/2mXKMwX.
[11] article 59 IPA.
[12] Article 60 IPA.