rsaegean.org | 8 October 2024
CJEU ruling on the concept of "safe third country"
On Friday 4 October 2024 the Court of Justice of the European Union (CJEU), in line with the Advocate’s General Opinion, ruled that Member States cannot issue a decision rejecting an asylum application as inadmissible on the basis of the concept of a “safe third country” in cases where they have established that the asylum seeker will not be allowed to enter the territory of a country designated as safe. The Court accepted, however, that a country may be listed as a safe third country even if, despite its legal obligation, that third country has, in general and without any prospect of a contrary development, suspended the admission or readmission of those applicants to its territory.
The CJEU has ruled on the questions referred for a preliminary ruling by the Plenary Session of the Council of State (CoS) in its judgment with No. 177/2023, following an application for annulment by the Greek Council for Refugees (GCR) and Refugee Support Aegean (RSA) against the Joint Ministerial Decision 42799/2021, which included Türkiye in the national list of “safe third countries” for asylum seekers from Syria, Afghanistan, Somalia, Pakistan and Bangladesh.
In particular, the CoS had asked for clarification of:
– Whether the provisions of Article 38 of Directive 2013/32 preclude a State from designating, by an act of general application, a third country as a safe third country, when that country has already previously suspended in practice applicants’ for international protection readmission to its territory.
– alternatively, whether that condition of possibility of readmission to the third country must be examined before the adoption of an individual decision rejecting an application for international protection as inadmissible under the concept of “safe third country” or only at the time of the execution of that decision.
In that judgment, the CJEU held, in the context of examining the first question, that:
– Article 38 of Directive 2013/32/EU does not preclude legislation of a Member State designating a third country as generally safe for certain categories of applicants for international protection, even if that third country has suspended, in general terms and without any prospect of a contrary development, the admission or readmission of those applicants to its territory.
– Member States may not, however, issue a decision rejecting an application for asylum as inadmissible on the basis of the concept of ‘safe third country’ in cases where they have established that the applicant for asylum will not be allowed to enter the territory of a country designated as safe.
Therefore, the decision on the existence or not of the possibility of readmission to the third country, in this case Türkiye, becomes a prerequisite at the stage of issuing the decision on the asylum application and not at the stage of its execution, as has been the practice of the Asylum Service up to now, as well as in the majority of decisions of the Independent Refugee Committees. It should be noted that those decisions of the national authorities, based on the Proposals of the same Advocate General in Cases C 924/19 PPU and C 925/19 PPU, overwhelmingly interpreted, incorrectly, that the condition of effective or not readmission to the third country is reviewed not at the stage of issuance, but at the stage of execution of the decision declaring an application for international protection as inadmissible on the basis of the application of the safe third country clause.
It should be recalled that the majority of the Plenary of the CoS, in the above-mentioned judgment, has interpreted Article 38 of the Directive, taking into account the provision of Article 18 of the Charter of Fundamental Rights of the European Union, which safeguards the right to asylum, in a way that serves the purpose pursued by the Directive.
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