Both the “safe third country” concept and the “safe country of origin” concept are incorporated in the German constitution (Grundgesetz) and further defined in the Asylum Act.1
Member States of the European Union are by definition considered to be safe countries of origin.3 Furthermore, the Constitution defines as safe countries:
“[I]n which, on the basis of their laws, enforcement practices and general political conditions, it can be safely concluded that neither political persecution nor inhuman or degrading punishment or treatment exists”.4
The list of safe countries of origin is an addendum to the law and has to be adopted by both chambers of the Parliament. If the situation in a safe country of origin changes and it can no longer be considered to be safe within the meaning of the law, the Federal Government may issue a decree to remove this country from the list for a period of 6 months.
At present, the list of safe countries consists of:
Serbia, FYROM and Bosnia-Herzegovina were added to the list following the entry into force of a law on 6 November 2014.5 Albania, Kosovo and Montenegro were added with another law which took effect on 24 October 2015.6
Applications of asylum seekers from safe countries of origin shall be considered as manifestly unfounded, unless the applicant presents facts or evidence which justify the conclusion that he or she might be persecuted in spite of the general situation in the country of origin. Although this is not required by law, applications from safe countries of origin are prioritised by the BAMF.7 Both the government and the BAMF claim that the classification as “safe country of origin” enables the authorities to deal with asylum applications more quickly.8 However, the classification as such does not lead to an acceleration of procedures, since applications of asylum seekers from safe countries of origin are subject to the same procedural conditions and guarantees as “normal” asylum applications (see Regular Procedure: Fast-Track Processing). In particular, the interview has to be carried out in the same manner as in any other asylum procedure. The BAMF has admitted that the classification of safe countries of origin has no impact on the duration of interviews, but it also states that decision-making is accelerated because “further examinations of the application’s reasons can be omitted”.9 This seems to indicate that quality standards for the examination of applications have been lowered for applicants from safe countries of origin, although there is no basis in law for such a policy.
A law which took effect on 24 October 2015 has imposed further restrictions on asylum applicants from safe countries of origin:10 They are now required to stay in initial reception centres for the whole duration of their procedures. This is specified in the new Asylum Act as the period “up to the Federal Office's decision on the application and, in case the application is rejected, up to the departure or the [deportation]”.11 However, it is doubtful whether the law's intention to oblige asylum seekers from safe countries of origin to remain in the same centre for the complete procedure can actually be achieved. For instance, the obligation to remain in an initial reception centre ends if a decision on the asylum application cannot be taken within a short time-frame or if a deportation cannot be carried out in the short term. Because of these limitations it does not seem likely that the new provision will be applicable in many cases: If the asylum procedure cannot be finalised within a few months, the asylum seekers should usually be allowed to leave these centres.
However, the new law is in line with the government’s intention to accelerate procedures for applicants from safe countries of origin. In September 2015, even before Albania, Kosovo and Montenegro were officially added to the list of safe countries or origin, the Federal State of Bavaria set up two „combined reception and return centres for asylum seekers without prospect to remain“. These centres are specifically designed for asylum seekers from the Western Balkan region. According to the regional government of Bavaria, offices of all relevant authorities and of the responsible Administrative Courts are established in these centres in order to accelerate asylum procedures and to carry out immediate returns if the asylum application is rejected.12 The Refugee Council of Bavaria criticised the new facilities as “deportation centres” in which asylum applications were only examined in a superficial manner and asylum seekers had little access to assistance or to an effective appeal procedure.13
Protection rates for Serbia, which was added to the list in November 2014, were roughly on the same level in the first ten months of 2015 as they were in 2014:
- January-October 2015: 22 “positive” out of 12,318 decisions (0.2%)
- 2014: 38 “positive” out of 13,828 decisions (0.3%)
In the case of FYROM, the protection rate actually increased slightly, although from a very low level, after the country was listed as a “safe country of origin” in November 2014:
- January-October 2015: 32 “positive” out of 4,734 decisions (0.7%)
- 2014: 13 “positive” out of 5,610 decisions (0.2%).14
By definition of the law, all Member States of the European Union are safe third countries. In addition, a list of further safe third countries can be drawn up. In those countries the application of the 1951 Refugee Convention and of the European Convention on Human Rights (ECHR) has to be “ensured”. The list is an addendum to the Asylum Act and has to be adopted by both chambers of the German Parliament. The Federal Government is entitled to remove a country from that list if changes in its legal or political situation “give reason to believe” that the requirements for a safe third country are not met any longer. At present, the list of further safe third countries consists of Norway and Switzerland.
From its wording, the safe third country concept only applies to the German (constitutional) asylum, but the Federal Constitutional Court found in a landmark decision in 1996 that its scope extends to refugee protection and to other forms of protection as well.16 Accordingly, asylum seekers can be sent back to safe third countries with neither an asylum application, nor an application for international or national protection being considered. Today the safe third country concept has its main impact at land borders.17 Border police shall refuse entry if a foreigner, who has entered from a safe third country, requests asylum at the border. Furthermore, border police shall immediately initiate removal to a safe third country if an asylum seeker is apprehended at the border without the necessary documents.18 Asylum applications may not be accepted or referred to the responsible authority by the border police if entry to the territory is denied, unless it turns out that Germany is responsible for processing the asylum procedure based on EU law, e.g. because Germany has issued a visa.
- 1. Article 16a(2)-(3) Basic Law.
- 2. Section 29a Asylum Act.
- 3. Section 29a(2) Asylum Act.
- 4. Article 16a(3) Basic Law.
- 5. Gesetz zur Einstufung weiterer Staaten als sichere Herkunftsstaaten und zur Erleichterung des Arbeitsmarktzugangs für Asylbewerber und geduldete Ausländer (Law on classification of further states as safe countries of origin and on the facilitation of access to the labour market for asylum seekers and tolerated foreigners), Bundesgesetzblatt (Official Gazette) I, No. 49, 5 November 2014, 1649.
- 6. Asylverfahrensbeschleunigungsgesetz (Law for an acceleration of asylum procedures), Bundesgesetzblatt (Official Gazette) I, 23 October 2015, 1722.
- 7. UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice: Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, 339.
- 8. BAMF, Neues Gesetz zu sicheren Herkunftsstaaten (New law on safe countries of origin), available at: http://bit.ly/1NdIMuh.
- 9. Mediendienst Integration. ‘Was bringen sichere Herkunftsstaaten?’ (What is the use of safe countries of origin?), 22 September 2015, available at: http://bit.ly/1kHjCIf.
- 10. Asylverfahrensbeschleunigungsgesetz (Law for an acceleration of asylum procedures), Bundesgesetzblatt (Official Gazette) I, 23 October 2015, 1722.
- 11. Section 47(I)(a) Asylum Act.
- 12. Bavarian Ministry of the Interior, ‘Neue Aufnahmeeinrichtungen für Asylbewerber’ (New reception facilities for asylum seekers), Press release, 14 August 2015, available in German at: http://bit.ly/1lwiJCk.
- 13. Refugee Council of Bavaria, ‘Balkan-Sonderlager in Bamberg eröffnet’ (Balkan special camp opens in Bamberg), Press release, 16 September 2015, available at: http://bit.ly/1NEXG7d.
- 14. Numbers refer to decisions on first applications only; BAMF, Asylgeschäftsstatistik (Asylum statistics) October 2015, 7, and Asylgeschäftsstatistik (Asylum statistics) December 2014, 6.
- 15. Section 26a Asylum Act.
- 16. Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1938/93, 2 BvR 2315/93, BVerfGE 94, 49 (189).
- 17. Section 18 Asylum Act.
- 18. The border area is defined as a strip of 30 kilometres.