EU: Surrounded by "safe" third countries
01 March 1996
Although the number of people who are forced to flee their homes and countries because of violations of their human rights and political persecution is on the rise world-wide fewer and fewer are gaining access to the European Union under the asylum procedures adopted. Unless asylum-seekers arrive in an EU country directly by plane from their country of origin there will almost certainly be a so-called "safe" third or host country through which they have travelled and to which they can be returned - assuming they could have found or asked for protection there.
The "safe" country of origin list attached to the UK's Asylum and Immigration Bill mirrors measures taken in other EU states, and raises the same questions over the safety of asylum-seekers returned to countries of transit. The recognition of refugees in the European Union now depends more on the route they have travelled than the reasons for their flight.
It was the "Resolution on a harmonized approach regarding host third countries" (adopted by the ministers of the European Communities responsible for immigration at their meeting in London in 1992) which introduced the concept of whether an asylum-seeker could be returned to a third country prior to the examination of the asylum claim on its merits.
In some countries (Portugal, Greece, Belgium, Finland and France) host third country cases are channelled through an accelerated procedure which often lack adequate safeguards. Some countries foresee the possibility of an appeal against the decision to return the person with or without automatic suspensive effect. This means that there is a possibility for the asylum-seeker or their lawyer to rebut the presumption that a third country is "safe" and that it will allow access to its asylum-procedure upon return. While this appeal is being examined the asylum-seeker is allowed to remain in the country. No suspensive effect of an appeal before removal exists in Germany and Finland and removals can be implemented as soon as the travel route is established - this is what the UK now intends to adopt.
Almost all EU Member States allow for the removal to a third country without obtaining the consent of the authorities of a third country, prior to the return, that they are ready to readmit a person and grant access them to its asylum-procedure. Only the UK has specifically set out in its planned legislation that there is no obligation to consult the authorities of the third country prior to a person's return.
The criteria for determining "safe" third countries also varies among EU Member States. Only three European States have so far established lists of "safe" third countries (Germany, Finland and Switzerland). The current German list (annexed to the asylum bill) consists - besides the (former) 12 EU Member States which are considered "safe" by the Constitution - of Finland, Norway, Austria, Poland, Sweden, Switzerland and the Czech Republic. Under other legislation countries can be considered as "safe" if they have ratified the 1951 Geneva Convention on the Status of Refugees or both the 1951 Geneva Convention and the European Human Rights Convention. The minimum requirement is that, in theory, a country respects the principle of non-refoulement.
Some countries require additionally that a person has not only transited the "safe" third country, but has stayed there for a minimum period. Under Norwegian legislation the minimum is 20 days, in Belgium three months. For most EU states the concept of "safe" third countries, however, applies if only a "foot" has been set on the territory of a third country.
Germany: constitutional ruling awaited
Pending the decision on the constitutionality of Germany's "safe" third country provisions, which is expected to be taken in April, the administrative court of Frankfurt (Oder), has - despite the fact that German legislation explicitly prohibits the suspension of return - in a summary procedure recently s