The “safe third country” (STC) is the idea for which a state can refuse to assess an application for international protection on the basis that this responsibility should fall on another state, and that this latter is “safe” enough to guarantee protection to the asylum seeker. The STC concept appeared for the first time in 1986 as an amendment to the Danish Alien Act (Byrne et al. 2004; Hunt 2014; Gammeltoft-Hansen 2017), and in the following decade it widely spread across Europe (Costello, 2005) as a mean to deflect protection obligations (Foster 2007). At a EU level, the STC concept was integrated into binding EU legislation in the occasion of the first Asylum Procedure Directive in 2005. Today, it is regulated by its successor, the Directive of 2013 on common procedures for international protection, which allows member states to consider an asylum application as inadmissible (Art. 33.1(c)) by applying the STC (Art. 38) concept to non-EU countries, and sets some minimum standards for its application.
If in the 90s the application of the STC concept was quite heterogenous across the EU (Lavenex 1999), quite the same can be said seventeen years after its first integration into binding EU legislation. While most of EU countries have the STC concept into their national legislation, the applicability criteria and the procedural safeguards can vary very much from one country to another. The greatest difference occurs however at the enforcement level: while most of EU countries use it only anecdotally in the assessment of applications for international protection, those countries making a regular use of it - Greece, Hungary, Portugal, Spain and Sweden – mostly do or have done it only in a particular context and in relation to a particular group of asylum seekers, and not always in accordance with the standards set by the Directive.1 Moreover, the use of the STC concept is often supported by ad-hoc policies or by some kind of agreement – especially informal- with the third countries that are identified as potential STC. Examples are the use of the STC on Syrians by Greece in the context of the 2016 EU-Turkey deal (EC 2016), but also the different forms of collaboration between Spain and Morocco on the readmission of foreigners, including in some cases also asylum seekers, while in parallel the Spanish Audiencia Nacional has declared that Morocco is a STC (EuroMed Rights 2021, AIDA/ECRE Country Report on Spain 2021). Very similarly, Italy has since 2017 a Memorandum of Understanding with the Libyan “government” which aims at preventing asylum seekers to reach Italy by sea (Palm 2017, Giuffré 2017, EP 2021). While the STC concept is not used in this case, the concepts of more general concepts of “safety” and of “safe port of disembarkation” have been put forward to justify this arrangement and are key in the debate on its lawfulness (EP 2022; La Repubblica 2019, UNHCR 2020).
In the last few years, the STC concept has particularly gained momentum in reason of two circumstances. The first one is the issuing, by the European Commission, of the New Pact on Migration and Asylum in September 2020. In the proposal, in fact, not only the 2013 Directive would be replaced by a Regulation, making the use of the STC concept more binding, but the new system of compulsory border procedures would result in an increased application of this concept. Member states are in fact strongly encouraged, in the proposal, to identify it as a ground to apply the border procedures, and many of them already do it (EPRS 2020).
Secondly, Denmark and the UK very recently adopted legislation allowing to transfer asylum seekers to STC for the purpose of assessing their applications and providing protection there. As for the implementation, the UK has already secured an agreement with Rwanda, and Denmark is courting the East African country with the same aim (Feith Tan and Vedstet- Hansen 2021; Grundler and Guild 2022; Euractiv 2022; The Guardian 2022). While Denmark has a particular status not binding the country to CEAS and the UK is not in the EU anymore, these last developments of the STC concept in Europe are particularly interesting and represent a major turning point in the use of policies and practices informed by it, since they overcome, for the first time, the requirement of the connection between the asylum seeker and the third country. While the EU has not adopted equivalent policies so far, similar ideas have been however circulating (Roman 2022).
Academic literature on the STC concept has been focusing especially on its consistency with international human right and asylum law and on the criteria and procedural safeguards that should be used to apply this concept in order to avoid human right related risks (Crawford and Hyndman 1989; Goodwin-Gill 1992; Hailbronner 1993; Byrne and Shacknove 1996; Van
Selm 2001; Legomsky 2003; Costello 2005; Hathaway 2005; Foster 2007; Lambert 2012; Freier et al 2021). More recently, scholars have been investigating whether existing schemes to share the responsibility of assessing asylum applications based on the STC concept are able to avoid human right related risks and whether they truly share responsibility, or they rather shift it (Kjaergaard 1994; Foster 2008; Gil-Bazo 2015; Contartese 2012; Moreno-Lax 2012;
2015; Freier et al. 2021).
However, besides a few exceptions (Gil-Bazo 2006; 2015; Gkliati 2017), scholars have been dedicating less attention to the states’ policies and practices related to the use of the STC concept. This research project aims precisely at filling this gap, by investigating how EU member states and other European countries have used the STC concept as a mean to deflect protection obligations. On the one hand, the research seeks and analysing which factors (e.g. the evolution of international and EU human rights and asylum constraints, ideational legacies, historical factors, STC practice before 2005, partnerships with potential STC) have influenced the integration of the STC concept into the national legislations – as per criteria and procedural safeguards - and its application on the ground. On the other hand, it aims an analysing how EU and European states have been developing formal and informal policies and practices to promote and support the application of the STC concept, as well as other policies and practices justified by the concepts of “safety” and “safe port of disembarkation”, which also have the aim to deflect protection obligations.
AIDA/ECRE Country Report on Spain, 2021 update (2022), available at https://asylumineurope.org/wp-content/uploads/2022/04/AIDA-ES_2021update.pdf
Byrne, Rosemary and Shacknove, Andrew (1996), The Safe Country Notion in European Asylum Law, Harvard Human Rights Journal, 9, 185-228.
Byrne, Rosemary, Noll, Gregor and Vedstet-Hansen, Jens (2004), Understanding Refugee Law in an Enlarged European Union, European Journal of International Law, 15:2, 355-379.
Contartese, Cristina (2012), The (rebuttable) presumption of the European Union Member States as ‘safe countries’ under the Dublin regulation, Human Rights and Risks in the Digital Era: Globalization and the Effects of Information Technologies. IGI Global, 240-255
Costello, Cathryn (2005), The asylum procedures directive and the proliferation of safe country practices: Deterrence, deflection and the dismantling of international protection. European Journal of Migration and Law, 7:1, 35-70.
Crawford, James and Hyndman, Patricia (1989), Three Heresies in the Application of the Refugee Convention, International Journal of Refugee Law, 1:2, 155-179.
EC (2016), EU-Turkey Statement, Questions and Answers, available at https://ec.europa.eu/commission/presscorner/detail/en/MEMO_16_963
EP (2021), The EU Approach on Migration in the Mediterranean, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2021/694413/IPOL_STU(2021)694 413_EN.pdf
EP (2022), Parliamentary Question P-000643/2022, Providing search and rescue vessels to Libya, available at https://www.europarl.europa.eu/doceo/document/P-9-2022- 000643_EN.html
EPRS (2020), Asylum procedures at the border. European Implementation Assessment, available at
Euractiv (2022), Denmark to seek Rwanda cash-for-migrants pact following UK lead, available at https://www.euractiv.com/section/justice-home-affairs/news/denmark-to-seek-rwanda- cash-for-migrants-pact-following-uk-lead/
EuroMed Rights (2021), Returns from Spain to Morocco, in Return Mania. Mapping policies and practices in the EuroMed Region, available at https://euromedrights.org/wp- content/uploads/2021/04/EN_Chapter-2-Returns-Spain-to-Morocco_Report-Migration.pdf
Feith Tan, Nikolas and Vedstet-Hansen, Jens (2021), Denmark’s Legislation on Extraterritorial Asylum in Light of International and EU Law, EU Migration Law Blog, available at https://eumigrationlawblog.eu/denmarks-legislation-on-extraterritorial-asylum-in-light-of- international-and-eu-law/
Foster, Michelle, (2007), Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State, 28, Michigan Journal of International Law, 223-286.
Foster, Michelle (2008), Responsibility Sharing or Shifting? "Safe" Third Countries and International Law. Refuge: Canada’s Journal on Refugees, 25:2, 64–78.
Freier, Louise F.; Karageorgiou, Eleni; Ogg, Kate (2021) The Evolution of Safe Third Country Law and Practice, in Costello, Cathryn, Foster, Michelle and McAdam, Jane (eds.), The Oxford Handbook of international Refugee Law, Oxford University Press, p. 518.
Gammeltoft-Hansen, Thomas (2017), "Refugee policy as ‘negative nation branding’: the case
of Denmark and the Nordics", Danish Foreign Policy Yearbook 2017, 99-125
Gil-Bazo, María-Teresa (2006), The Practice of Mediterranean States in the Context of the European Union’s Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited, International Journal of Refugee Law, 18:3/4, 571-600.
Gil-Bazo, María-Teresa (2015), The safe third country concept in international agreements on refugee protection assessing state practice. Netherlands Quarterly of Human Rights, 33.1: 42- 77.
Giuffre, Maria Giulia (2017), From Turkey to Libya: The EU Migration Partnership from Bad to Worse, Eurojus, available at http://rivista.eurojus.it/from-turkey-to-libya-the-eu-migration- partnership-from-bad-to-worse/
Gkliati, Mariana (2017) The application of the EU-Turkey Agreement: a critical analysis of the decisions of the Greek Appeals Committee, European Journal of Legal Studies, 10:1, 80-123, available at https://cadmus.eui.eu/handle/1814/48070
Goodwin-Gill, Guy S. (1992), Safe country? Says who? International Journal of Refugee Law,
Grundler, Maja and Guild, Elspeth (2022), The UK-Rwanda deal and its Incompatibility with International Law, EU Migration Law Blog, available at https://eumigrationlawblog.eu/the- uk-rwanda-deal-and-its-incompatibility-with-international-law/
Hailbronner, Kay (1993), The Concept of ‘Safe Country’ and Expeditious Asylum Procedures: A Western European Perspective. International Journal of Refugee Law, 5(1), 31–65.
Hathaway, James (2005), The rights of refugees under international law, Cambridge University Press.
Hunt, Matthew, (2014), The safe country of origin concept in European asylum law: Past, present and future. International Journal of Refugee Law, 26(4), 500–535.
Kjaergaard, Eva (1994), The Concept of ‘Safe Third Country’ in Contemporary European
Refugee Law, International Journal of Refugee Law, 6:4, 649-655.
Lambert, Helene (2012), “Safe third country” in the European Union: an Evolving Concept in International Law and Implications for the UK, 26(4) Journal of Immigration Asylum and Nationality Law, 318-336.
La Repubblica (2019), Migranti, Salvini: “Libia porto sicuro”. La Commissione Ue smentisce: “Nessuna nave sbarchi là”, available at https://www.repubblica.it/cronaca/2019/03/29/news/salvini_libia_porto_sicuro_aggiornat a_direttiva-222772993/.
Lavenex, Sandra (1999), Safe third countries: extending the EU asylum and immigration policies to Central and Eastern Europe, Central European University Press.
Legomsky, Stephan, (2003), Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection, Legal and Protection Policy Research, UNHCR, available at https://www.refworld.org/docid/3f4de85d4.html
Moreno-Lax, Violeta (2012), Dismantling the Dublin System: M.S.S. v. Belgium and Greece,
European Journal of Migration and Law, 14:1, 1-31.
Moreno-Lax Violeta (2015), The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties. Migration & Refugee Protection in the 21st Century: Legal Aspects: 665-721, available at https://www.unhcr.org/59632a847.pdf .
Palm, Anja (2017) The Italy-Libya Memorandum of Understanding: The baseline of a policy approach aimed at closing all doors to Europe?, EU Migration Law Blog, available at https://eumigrationlawblog.eu/the-italy-libya-memorandum-of-understanding-the-
Roman, Emanuela (2022) "The “Burden” of Being “Safe”—How Do Informal EU Migration Agreements Affect International Responsibility Sharing?." The Informalisation of the EU's External Action in the Field of Migration and Asylum. TMC Asser Press, The Hague, 317-346
The Guardian (2022), UK to send asylum seekers to Rwanda for processing, available at https://www.theguardian.com/uk-news/2022/apr/13/priti-patel-finalises-plan-to-send- asylum-seekers-to-rwanda.
UNHCR (2020a), UNHCR Position on the Designation of Libya as a Safe Third Country as a Place of Safety for the Purpose of Disembarkation Following Rescue at Sea, available at https://www.refworld.org/docid/5f1edee24.html
Van Selm, Joanne (2001) Access to Procedures: Safe Third Countries, Safe Countries of Origin and Time Limits, UNHCR, available at https://www.refworld.org/pdfid/3b39a152d.pdf