The Concept of “Safe Third Country”
Legal Standards & Implementation in the Greek Asylum System

Executive Summary

The concept of “safe third country” is gaining renewed prominence in European asylum systems as governments across the continent seek ways to shift their responsibility for processing refugee claims to other states. The concept, entailing a ground for inadmissibility of asylum claims without an assessment on the merits, is at the forefront of the recently agreed reform of the Common European Asylum System (CEAS) at EU level and of domestic policy implementation or exploration from Greece to the United Kingdom and Germany. These safe third country policies regularly come to a direct clash with human rights and the rule of law, hence their extensive litigation before national jurisdictions and European courts.

The present study recalls the main European legislative and jurisprudential standards underlying the safe third country concept and analyses their implementation in the Greek asylum system. It focuses particularly on the case law of the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and Greek courts and tribunals, i.e. the Independent Appeals Committees (IAC) responsible for hearing asylum appeals.

States applying the safe third country concept must abide by a range of procedural and substantive requirements enshrined in particular in the EU Asylum Procedures Directive (APD) and human rights law and elaborated through jurisprudence. The main legal standards applicable to the safe third country concept may be summed up in ten core points:

1. States must enact methodology rules to set out the way the safe third country concept is to be applied in each case (Article 38(2)(b) APD; CJEU, C-564/18, C-924/19 PPU, C-821/19). Such methodology should involve a thorough assessment of the adequacy of the country’s asylum system based on available authoritative evidence (ECtHR, Ilias and Ahmed v. Hungary [GC]).
2. Evidence on the asylum and human rights situation in the third country must be precise and up-to-date (Article 10(3)(b) and Recital 48 APD; CJEU, C-756/21).
3. Evidence from authoritative sources e.g. UNHCR, Council of Europe, EU bodies on the situation in the third country is presumed to be known to Member States (Recital 48 APD, ECtHR, Ilias and Ahmed v. Hungary). The views of UNHCR carry particular weight in light of its supervisory responsibility under the Refugee Convention (CJEU, C-621/21).
4. Diplomatic assurances offered by the third country are no conclusive evidence that refugees will receive adequate treatment. Assurances must meet quality and reliability standards, assessed based on criteria including specific nature, length and strength of bilateral relations, verification through monitoring mechanisms and effectiveness of protection against torture in the third country (ECtHR, Othman v. United Kingdom).
5. Evidence on the situation in the third country relied upon by asylum authorities must be made available to the applicant (Articles 12(1)(d) and 38(2)(c) APD).
6. Scrutiny of compliance with the safety criteria set out in points (a) to (e) of Article 38(1) APD in the third country involves a forward-looking assessment (ECtHR, Paposhvili v. Belgium). Past exposure to harm is an indicator of but not a necessary condition of future risk (Article 4(4) QD).
7. The level of protection against refoulement in the third country must meet the test of “real risk” of being subjected to persecution or torture, inhuman or degrading treatment (CJEU, C-71/11, C-163/17; ECtHR, Ilias and Ahmed v. Hungary).
8. The criterion of connection with the third country requires an individualised assessment of the applicant’s circumstances, discrete from scrutiny of safety criteria in the third country. Transit alone is not sufficient evidence of a connection with the third country (CJEU, C-564/18, C-924/19 PPU, C-821/19).
9. The absence of prospects of readmission of an applicant to the third country in the meaning of Article 38(4) APD may stem from different factual or legal situations, owed to general or individual circumstances. These include unilateral suspension of readmission agreements and tacit rejection of readmission requests.
10. Applicants must have their claims heard on the merits where there are no prospects of readmission to the third country. Member States may not apply the safe third country concept in such a case (Recital 44 APD). If the claim has already been dismissed, the onus is on the Member State to allow access to the procedure.

Findings drawn from the analysis point to serious deficiencies in the way Greece designates safe third countries and applies the concept to individual asylum applications. Ten instances where Greek practice departs from established standards include:

1. Failure of the Greek legislature to thoroughly engage with authoritative country information ahead of designation of safe third countries, including EU institutions’ reports.
2. Gross misapplication of human rights standards on evidence assessment by IAC, which incorrectly consider that a third country may be designated as safe in the face of contrary evidence from authoritative sources.
3. Failure of the Greek Asylum Service and IAC to consider authoritative country information when deciding on asylum claims. Systematic use of outdated, standardised country information by the Greek Asylum Service and IAC in decisions on asylum claims.
4. Gross misinterpretation of human rights standards on diplomatic assurances by IAC and reliance on outdated, unreliable assurances at first and second instance.
5. Standardised refusal of the Greek Asylum Service to disclose country documentation to applicants whose cases are processed on safe third country grounds.
6. Misapplication of the forward-looking assessment rule under international refugee and human rights law, resulting in arbitrary dismissal of claims where applicants have not proven past exposure to ill-treatment in the third country.
7. Misapplication of the established “real risk” standard of proof and conflation with stricter standards applicable to transfers between EU countries, resulting in arbitrary requirements on applicants to prove “systemic deficiencies” in the third country’s asylum system or “mass refoulements” creating a risk for “every person returned” thereto.
8. Inconsistent interpretation of the safety criteria at first and second instance. Incorrect use of the connection criterion by IAC as a forum for safety considerations, including risks to particular groups e.g. women, ethnic minorities, and inability to access asylum procedures and socio-economic rights.
9. Standardised determinations on connection with the third country without an individualised assessment. Inconsistent reading of factors determining the existence of a connection with the third country, including length of stay and best interests of the child.
10. Failure to assess manifest lack of prospects of readmission to the third country even where expressly raised by applicants. Lack of access to an asylum procedure for reasons of a lack of readmission prospects to the third country, including arbitrary dismissal of subsequent applications for want of “new elements”.