Key points of the Greek Council of State ruling on the “safe third country” concept

On 3 February 2023, the Plenary of the Greek Council of State published its judgment and referred preliminary questions to the Court of Justice of the European Union (CJEU), following judicial review applications lodged by Refugee Support Aegean (RSA) and the Greek Council for Refugees in October 2021 on the legality of the Greek national list (JMD 42799/2021) designating  Turkiye as a “safe third country” for asylum seekers from Afghanistan, Syria, Somalia, Pakistan and Bangladesh.

An unofficial translation of relevant excerpts of the decision is provided below.

Transposition of Article 38(2) of the Asylum Procedures Directive

[para 34] However, the ground in question is unfounded. That is given that [the International Protection Act, IPA] complies with the requirements of the provision of Article 38(2) of [the Asylum Procedures Directive], since it lays down a system foreseeing (Article 86(2)) the application of the “safe third country” concept both “on an individual basis and separately for each applicant”, as well as the establishment of a national list of safe third countries containing countries designated as “generally safe” for certain categories of applicants for international protection. Furthermore, the law (Article 86(3)) lists the elements to be taken into consideration for the designation of a country as generally safe (national and international legal framework, domestic practice), as well as indicative sources from which those elements may be drawn (official diplomatic sources, international organisations etc.) The designation is subject to mandatory reassessment at regular intervals, including in the case of changes in the human rights situation in the country. It may also be inferred that the rules relating to the elements to be taken into consideration and to the sources for the designation of a country as generally safe are also applicable to the designation of a country that is not included in the above national list as safe for a particular applicant. Besides, the law (Article 86(1)) does not deem transit of the applicant for international protection through a third country as sufficient for the establishment of a connection therewith but requires fulfilment of further conditions, non-exhaustively listed (duration of stay in the third country, existence of ties).

Protection in accordance with the Geneva Convention

[para 36] … as has been held (Council of State Plen. 2347, 2348/2017), from a juxtaposition of the provisions of Article 38 of [the Asylum Procedures Directive]in question, transposed into domestic law by Article 86 [IPA], with the aforementioned (paragraph 13) provisions of Article 35 (“first country of asylum”, Article 85 [IPA]) and 39 (“European safe third country”, which has not been transposed into the domestic legal order) of said Directive, it appears that a third country which has ratified the Geneva Convention subject to a geographical restriction may be designated as safe in the meaning of Article 86 [IPA] and 38 of [the Asylum Procedures Directive] insofar as it complies with the principle of non-refoulement and offers sufficient protection of certain fundamental rights, including the right to access to health care and the labour market.

Impossibility of readmission (majority opinion)

[para 38] … its examination precedes the assessment of remaining submissions regarding other issues of legality of the contested joint ministerial decision – fulfilment of other required conditions (“criteria”) for its issuance and motivation… per its letter, Article 38(4) does not provide the possibility of entry or readmission of a foreigner to the third country as a condition for the application of the safe third country concept. However, according to constant CJEU case law, the interpretation of a provision of European Union law shall take into consideration not only its letter but also the context in which it is introduced, as well as the objectives pursued by the measure of which it forms part (see indicatively ECJ, C-232/82, Merck, 17 November 1983, paragraph 18, and CJEU, C-202/18 και C-238/18, Rimšēvičs and ECB v Latvia, 26 March 2019, paragraph 45). In the present case, in view of Article 18 of the Charter (aforementioned paragraph 8), the provisions of [the Asylum Procedures Directive] relating to inadmissible applications for international protection must be interpreted in such a way as to serve the purported objective of the Directive to safeguard rapid examination of applications for international protection insofar as possible (see CJEU, C-556/17 Torubarov, 29 July 2019, paragraph 53). This objective is set out in recital 18 of the Directive…

Under that reading, Article 38 of the Directive (and corresponding Article 86 [IPA]) must be interpreted as precluding the designation of a third country as safe where it is not established that entry or readmission of the applicant protection thereto will not be feasible. A contrary reading would merely prolong the duration of examination of the submitted application for international protection and uncertainty on the applicant as regards the status of their stay in the country where they submitted an application, without excluding the risk of their refoulement to a country where they risk facing persecution (mutatis mutandis European Commission on Human Rights, A.H. [Harabi] v. the Netherlands, App No 10798/84, 5 March 1986) and the possibility of disruption in international relations of states. The view that the possibility of entry or readmission of a foreign applicant for protection to a third country constitutes a condition for the designation of a third country as safe has, besides, been set out in soft law texts of the Council of Europe (Committee of Ministers Recommendation R(97)22 and Guidelines of 1 July 2009) and has been supported by part of the international law doctrine (in particular Stephen H. Legomsky, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection, σε International Journal of Refugee Law, 2003, p. 567 et seq.), while it has been adopted by courts of other European Union Member States (see Dutch Council of State, decision 201609584/1/V3 of 13 December 2017). Furthermore, the assessment of fulfilment of the possibility of entry or readmission of the foreigner to the safe third country encompasses an examination of both the legal framework in said country (i.e. potential undertaking of a related legal obligation on the part of the third country) and compliance of the third country with its undertaken legal obligations in practice. The above observations lead to the conclusion that, where a Member State establishes a national list of generally safe third countries by making use of the discretion afforded by Article 38(2) of the Directive, it may not, for reasons of rapid conclusion of the examination of applications for international protection as mentioned above, make a regulatory designation of a third country as safe where the fulfilment of the aforementioned condition – the possibility of entry or readmission to said country – is not assessed on both its aforementioned limbs.

[para 41] However, as regards its second limb, relating to Türkiye’s compliance with its legal obligations in practice, the same condition is not fulfilled since readmission to Türkiye is not being carried out for applicants for international protection whose applications have been dismissed as inadmissible on “safe third country” grounds. On the contrary, as expressly stated in the service note of the Procedures and Training Section of the Asylum Service of 3 December 2021 (p. 8), which accompanies the recommendation of the Director of the Asylum Service no 438958/21 of 7 December 2021 following which the contested Joint Ministerial Decision was issued… “From March 2020 to present [therefore for a period exceeding twenty months] returns from Greece to Türkiye have frozen”, without any distinction as to the legal basis on which returns are ordered (international agreements or EU-Turkey Statement, as stated above). It also cannot be accepted, as submitted by the State… that it is a temporary “and more or less justified non-implementation [of the statement of 18 March 2016 due to the circumstances]” (“Türkiye temporarily, due to the COVID pandemic, a global and undeniable event), does not accept readmissions over the last period”) is not supported by the elements of the file.

Preliminary questions to the CJEU

a) Must Article 38 of [the Asylum Procedures Directive], interpreted in conjunction with Article 18 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding a national (regulatory) measure which designates as generally safe for certain categories of applicants for international protection a third country which has, on the one hand, undertaken the legal obligation to allow readmission on its territory of those categories of applicants for international protection, but which refuses readmission for a long period of time (which in the present case exceeds twenty months) and it is not established that the possibility of change in the country’s stance in the immediate future has not been assessed?

b) Must it be interpreted as meaning that readmission to the third country is not a cumulative condition for the issuance of the national (regulatory) act designating the third country as generally safe for certain categories of asylum seekers, but a cumulative condition for the taking of an individual decision dismissing a particular asylum application as inadmissible based on “safe third country” grounds? or

c) Must it be interpreted as meaning that readmission to the “safe third country” must only be assessed at the stage of execution of the decision, when the decision dismissing the asylum application is based on “safe third country” grounds?