Explanatory Memorandum to Recommendation No. R (97) 22 of the Committee of Ministers to member states Guidelines on the application of the safe third country concept

The Committee of Ministers, in establishing the specific terms of reference of the Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), stated that one of the committee's tasks is "to make proposals for the solution of practical and legal problems facing states in the field of territorial asylum, refugees and stateless persons, particularly by drawing up appropriate legal instruments (conventions and recommendations) in the liberal and humanitarian spirit of the member states of the Council of Europe aiming at among others to settle the question of the countries of first asylum and of territorial asylum and to look into specific situations in the new host countries". 

2.         In the context of these terms of reference, the CAHAR recognised the need, in the light of different approaches in the member states, to reach a common understanding on the problem of refugees and asylum-seekers who move from a country in which they had the opportunity to seek, or had already found, protection. 

3.         In the resolution on a harmonised approach to questions concerning "host third countries", adopted by the ministers of the member states of the European Communities responsible for immigration, in December 1992, certain guidelines were established. The CAHAR was conscious of the need to take into account other international commitments of member states and therefore the following sentence was included in the preamble: "without prejudice to other international instruments applicable between member states." 

4.         In drafting this recommendation the committee took account of the mentioned resolution on "host third countries", as well as of the relevant provisions of the convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities (Dublin Convention) and of EXCOM Conclusions No. 15 (XXX) on refugees without an asylum country and No. 58 (XL) on problems of refugees and asylum-seekers who move in an irregular manner from a country in which they had already found protection. 

5.         The draft finalised by the ad hoc committee was forwarded to the Committee of Ministers and was adopted by it on 25 November 1997 at the 609th meeting of the Ministers' Deputies. 

General considerations 

6.         Some member states consider that asylum-seekers should apply for asylum in the first or subsequent country in which they had an opportunity to do so when such a country is considered safe ("safe third country"). Some member states do not apply this concept. Some other member states also consider it appropriate, in cases of personal circumstances as specified by the last part of paragraph I.d of the recommendation, to send the asylum-seeker to another country. 

7.         The aim of the recommendation is to indicate under which conditions a country may be considered safe in order to provide appropriate and effective protection for asylum-seekers and refugees who are in need of it and in order that asylum-seekers be given an opportunity to have their claims examined by one state. The third state should meet in each individual case all those criteria which establish that it is a safe third country for the asylum-seeker. 

8.         The recommendation uses the term "asylum-seeker" as used by Council of Europe documents, meaning a person applying for asylum in any manner whatsoever. 

Comments on the principles set out in the recommendation 

9.         The preamble recalls the principles relating to asylum as enshrined in fundamental instruments of human rights, such as the Convention for the Protection of Human Rights and Fundamental Freedoms, the Universal Declaration on Human Rights, the United Nations Declaration on Territorial Asylum and the Declaration on Territorial Asylum adopted by the Committee of Ministers of the Council of Europe, as well as the importance of the full implementation of binding universal instruments of international refugee law such as the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. 

10.       The guidelines adopted in the recommendation set out four cumulative criteria for assessing whether a country is a safe third country. These criteria refer to the observance of certain standards and principles by the third state and indicate certain conditions specific to the relationship between the individual asylum-seeker and the third state. 

11.            According to paragraph I.a of the guidelines, observance by the third country of international human rights standards relevant to asylum is an essential prerequisite. Such standards must be identified with those contained in applicable human rights instruments which are listed in the first paragraph of the preamble. These standards include the prohibition of torture, inhuman or degrading treatment or punishment. Member states of the Council of Europe, as the relevant decisions of the European Court of Human Rights point out, are under an obligation not only to respect this prohibition in their own territory, but also to refrain from sending an individual to another state where he would be subjected to treatment which would be in breach of relevant articles of the European Convention on Human Rights, whether or not that state is a party to the Convention. 

12.            Paragraph I.b of the guidelines requires the observance by the third state of international principles relating to the protection of refugees as embodied in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The third state is, therefore, required to observe international protection principles, even if not a party to the 1951 Convention and 1967 Protocol, with special regard to the principle of non-refoulement as formulated in Article 33 of the 1951 Convention. 

13.            Paragraph I.c of the guidelines requires that the third country provide effective protection against refoulement as well as providing the possibility to seek asylum and, where granted by the third country, to enjoy asylum. The key concern of effective protection is the personal safety of the asylum-seeker and this criterion is linked with the corresponding paragraph in the preamble of the recommendation which states that asylum-seekers should be given an opportunity to have their claims examined by one state. 

14.            Paragraph I.d of the guidelines contains three alternative conditions, one of which must be fulfilled: 

i.            the first condition specifies that the asylum-seeker has already been granted effective protection in the third country and that this effective protection, in the meaning of the personal safety of the asylum-seeker, continues to be available for the asylum-seeker on his or her return to that country; 

ii.            the second condition specifies that the asylum-seeker, prior to coming to the member state, at the border or within the territory of the third state, has had the opportunity to make contact with the authorities, in order to seek protection there. This being the basic condition, the recommendation does not contain any provision on the duration and nature of stay or transit in the third state. Member states have different or no provisions by law, in this regard; 

iii.            the third condition refers to the case where it is assessed that the asylum-seeker will be readmitted to the third state due to the personal circumstances of the asylum-seeker, including his or her prior relations with the third country. These circumstances may include, for example, a valid residence permit, or close family links in the third state. Some states consider that, if all other criteria as established in paragraphs I.a to c are met, the above-mentioned personal circumstances of the asylum-seeker indicate clear evidence of admissibility to another country. This they deem satisfactory grounds for sending the asylum-seeker to that country. 

15.       In paragraph II of the guidelines, member states are recommended to adopt modalities for informing the asylum-seeker and, as far as necessary, the authorities of the third country, that when a country is considered safe in the above-stated manner, applications for asylum are generally not examined in substance. This information is transmitted to member states in accordance with existing data protection legislation or, in the absence of such legislation, with the consent of the asylum-seeker. This is an important provision in order to prevent the asylum-seeker, when referred to a safe third country, being assumed to be a rejected asylum claimant in the sending country and, as a consequence of this assumption, treated accordingly. 

16.       The guidelines do not specify, as a prerequisite for removal, the consent of the third state concerned. Nevertheless, as expressed in the fifth paragraph of the preamble, successive expulsions and "refugees-in-orbit" situations should be avoided as they may represent a threat to the personal safety of the asylum-seeker and, in such cases, may be incompatible with the principle of effective protection.

17.            Problems relating to burden-sharing and transit countries have not been dealt with by the recommendation. 

18.       None of the provisions of the recommendation exclude the possibility that member states provide asylum-seekers and refugees with broader entitlements.