Safe third country

Spain

Country Report: Safe third country Last updated: 25/03/21

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The concept of “safe third country” is defined with reference to Article 27 of the original 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 since 2016 up until 2020, in particular for Moroccans, and in 2020 the concept was also applied to Venezuelans as the authorities consider that any other South American country is a safe third country. 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 it has also been applied to Syrians who have lived a period in Morocco, even though they did not hold any residence permit. These designations have been upheld by several rulings of the Audiencia Nacional.[2] In a decision of 2018, the Audiencia Nacional makes reference to Morocco as a “safe third country”, indicating that the Court has reiterated this position on many occasions.[3]

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.”[4] In principle, both the ratification and the application of the Geneva Convention are necessary conditions for the application of the safe third country concept.[5]

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.[6] The same reasoning was used in a case concerning Algeria.[7]

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 recent case of 2018.[8]

The majority of inadmissibility decisions in 2018 concerned nationals of Algeria and Morocco (see Admissibility Procedure). Statistics on 2020 were not available at the time of writing of this report.

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 ruling, 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.[9]

 

 

[1] Article 20(1)(d) Asylum Act.

[2] 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.

[3] Audiencia Nacional, Decision SAN 1441/2018, 15 March 2018.

[4] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.

[5] 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

[6] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.

[7] Audiencia Nacional, Decision SAN 3838/2016, 17 October 2016.

[8]  Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.

[9] Audiencia Nacional, Decision SAN 428/2018, 2 February 2018.

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