UNHCR’s Position and Recommendations on the Safe Third Country Declaration by Greece

On 7 June 2021, in a Joint Ministerial Decision (JMD), Greece unilaterally declared Turkey a safe third country for asylum-seekers originating from Afghanistan, Bangladesh, Pakistan and Somalia, in addition to Syria. As a result, the use of admissibility procedures, prior only applied to Syrians, is expanded to four additional nationalities and its geographical range to transfers from Greece mainland.

UNHCR takes note of the JMD by Greece of 7 June 2021 and its immediate implementation by changing scheduled interviews from in-merit to admissibility interviews.

Requirements for designating a safe third country: The designation of a safe third country needs to be based on reliable, objective and up to date information from a range of sources. Also, the process of adding or removing a country from a list of designated ‘safe third countries’ must be transparent, open to legal challenge, and reviewable in light of changing circumstances. This requires of the State declaring a STC, here Greece, a thorough assessment and monitoring of respective protection safeguards in law and practice prior and throughout the implementation of an eventual arrangement.

Ensuring protection safeguards in law and practice: Where the safe third country concept is applied and admissibility procedures implemented, the requisite protection safeguards for transfers of applicants of all these nationality groups must be in place, including an individualized assessment of the specific profile and circumstances of the asylum-seeker. These need to be provided for in law and implemented in practice prior to effectuating any readmission. Without such protection safeguards in place, this arrangement may result in protection risks for the asylum-seekers.

The application of the safe third country concept, requires to individually assess prior to the transfer that the third county in question will (1) readmit the person, (2) grant the person access to a fair and efficient asylum procedure, (3) permit the person to remain while a status determination is made, and (4) accord the person standards of treatment commensurate with the 1951 Convention and international human rights standards. In addition, where the applicant is determined to be a refugee, he or she should be recognized accordingly and granted lawful stay. UNHCR also considers that a meaningful link between an asylum-seeker and the third country should exist to make a transfer there reasonable and sustainable, and to abstain from transfers where this does not exist. *

Efficiency gains and other advantages of in-merit v. admissibility procedures: UNHCR recalls that the extensive use of admissibility procedures comes with disadvantages and not necessarily efficiency gains. This has in practice been demonstrated by the fact that of all persons returned under the EU-Turkey statement prior to March 2020, only 19 per cent were Syrians, i.e. of the nationality to which admissibility procedures were applied. The other 81 per cent concerned applicants from countries whose claims were until the recent Ministerial decision examined on the merits. This shows that the use of admissibility procedures has not been an efficiency factor in the implementation of transfers of the EU-Turkey statement. Thus, their expanded use will unlikely contribute to the endeavoured efficiency gains. A likely increase in judicial review of admissibility decisions in comparison to in-merit procedures is a further slowing factor.

UNHCR considers in-merit, fair and fast asylum processing a more suitable way to manage fluctuation in arrivals and numbers of asylum-seekers, including larger numbers.** The use of in- merit fair and fast procedures would also allow for the return of rejected asylum-seekers to their country of origin in case of a final negative decision, which mere admissibility procedures do not allow for.

Necessary in-merit processing in the absence of readmission: The absence of a mutually agreed readmission arrangement or delay in the implementation elevates the risk of protracted detention and situations of legal limbo for those concerned who may not be readmitted, increasing human misery and in all likelihood, fuelling further onward movement within the EU. Where cooperation is not mutually agreed to, or required protection safeguards are not in place, an in-merit examination of asylum claims of applicants of those nationality groups should take place without undue delay to avoid legal limbo situations.