Safe third country

Author

Accem Visit Website

The concept of “safe third country” is defined with reference to Article 27 of the Asylum Procedures Directive and where appropriate with an EU list of safe third countries, as a country where the applicant does not face persecution or serious harm, has the possibility to seek recognition as a refugee and, if recognised, enjoy protection in accordance with the Refugee Convention. The law also requires the existence of links in the form of a relationship with the safe third country, which make it reasonable for the applicant to be returned to that country.^[1] The applicability of the “safe third country” concept is a ground for inadmissibility (see section on Admissibility Procedure).

The OAR has increasingly applied the “safe third country” concept in recent years. In 2020, the concept was also applied to Venezuelans, as the authorities consider that any other South American country should be considered as a safe third country for the applicants coming from the country. The same situation continued to persist in 2022. Since the second half of 2023, the concept has stopped to be used for Venezuelans staying in other Latin America countries.[2] The Government does not expressly refer to the “safe third country” concept, but the motivation of the dismissal of the application is essentially based on it. The concept has been applied in 2018 especially in cases of mixed marriage between Moroccan and Syrian nationals. In 2019, 2020 and 2021 it was also been applied to Syrians who have lived in Morocco for a period of time, even though they did not hold any residence permit. These designations have been upheld by several rulings of the Audiencia Nacional.^[3] According to Accem’s knowledge, the criteria have not changed for Syrians, even though there are currently few Syrian applicants in Spain, and they are mainly reaching the country through its resettlement programme. In a decision of 2018, the Audiencia Nacional refers to Morocco as a “safe third country”, indicating that the Court has reiterated this position on many occasions.^[4]

Safety criteria

According to the Audiencia Nacional, the obligation to examine asylum applications on the merits “ceases to exist when the applicant can or should have presented the application in another country which is also signatory to the Geneva Convention, as the latter must also guarantee the application of the Convention.”^[5] In principle, both the ratification and the application of the Geneva Convention are necessary conditions for the application of the safe third country concept.^[6]

The Court has ruled that Morocco is a safe third country at various occasions. It referred inter alia to the country’s “advanced status” under the European Neighbourhood Policy as indication of its safety.^[7] The same reasoning was used in a case concerning Algeria.^[8] As far as the author is aware, the same situation persists in the case of Morocco, while no information is available with regards to Algeria.^[9]

It is important to note, however, that although it has stressed several times the necessity for a third country to have ratified the Geneva Convention to be considered as safe, the Audiencia Nacional stated that Lebanon is a safe third country in a 2018 case.^[10]

Since 2019, no statistics on the main nationalities receiving inadmissibility decisions were publicly available (see Admissibility Procedure).

Connection criteria

Although Article 20(1)(d) of the Asylum Act refers to the existence of a connection between the applicant and the third country, the aforementioned rulings of the Audiencia Nacional have not referred to the connection criteria when concluding that Morocco is a “safe third country”.

In a ruling of February 2018, however, the Audiencia Nacional noted that an asylum application cannot be dismissed on the sole basis of transit through a third country signatory of the Geneva Convention. The authorities have to assess whether the applicant stayed in the country for a reasonable period of time, so as to establish a connection with the country.^[11]

^{[1] Article 20(1)(d) Asylum Act.}

^{[2] Information provided by Accem’s legal service in April 2024.}

^{[3] See e.g. Audiencia Nacional, Decision SAN 3736/2016, 13 October 2016; Decision SAN 3839/2016, 17 October 2016; Decision 4053/2016, 27 October 2016; Decision SAN 1524/2017, 16 January 2017, Decision SAN 1232/2017, 3 March 2017; Decision SAN 2589/2017, 12 May 2017; Decision SAN 3183/2017, 29 June 2017.}

^{[4] Audiencia Nacional, Decision SAN 1441/2018, 15 March 2018.}

^{[5] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.}

^{[6] Ibid. See also Audiencia Nacional, Decision SAN 3736/2016, 13 October 2016; Decision SAN 3839/2016, 17 October 2016; Decision 4053/2016, 27 October 2016; Decision SAN 1524/2017, 16 January 2017, Decision SAN 1232/2017, 3 March 2017; Decision SAN 2589/2017, 12 May 2017; Decision SAN 3183/2017, 29 June 2017.}

^{[7] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.}

^{[8] Audiencia Nacional, Decision SAN 3838/2016, 17 October 2016.}

^{[9] Information provided by Accem in March 2023.}

^{[10] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.}

^{[11] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.}