Erosion Disguised as Reform: How the “Safe Third Country” Concept Increases Risk of Refoulement and Outsources Responsibilities

In May 2024, a new ‘Asylum Procedures Regulation’ (2024/1348, hereby known as APR) was established as part of the New EU Pact on Migration and Asylum. The Regulation sets up a common procedure for international protection in the EU and, like much of the Pact’s new legislation, has a two year transition period, to be implemented by 2026. This Regulation “seek[s] to streamline, simplify and harmonise the procedural arrangements of the Member States”. Nonetheless, the BVMN concludes that the changes proposed will lead to a severe deterioration in protection standards. 

Article 77 of the APR committed to review the concept of Safe Third Country (STC) by 12 June 2025. On 20 May 2025 the EU Commission published an amendment proposal to the STC concept which together with the concept of Safe Country of Origin represents a key element for the future of Return Policies.

• First and foremost, the changes would make it possible for Member States to remove the previously required connection criteria between the asylum applicant and the third country, leaving such criteria to be determined by national law. Transit through the third country would be considered a sufficient link, as would the Member State having an agreement with the third country to examine the applicant’s request for protection instead. In addition, the APR legislation outlined in Article 59 on the “Concept of a safe third country” states that “an application for international protection [will not be] examined in substance as a consequence of the application of the concept of safe third country” (§8b). The elimination of the connection criteria, the addition of the transit link, and the use of existing agreements risks further limiting the right of access to asylum. Individuals can now be returned to places they have no connection with, but also where they may face harm, contrary to EU and international law and Art.3 of the European Convention on Human Rights. 

• This risk is reinforced by the fact that any appeal against the inadmissibility of the application of the STC concept would not have automatic suspensive effect. As a result, the removal of an individual to the so-called safe third country could be carried out before the appeal is examined and decided. The already fast-tracked procedures set out in the APR leaves little room for effective remedy and appeal — a situation that would therefore be further exacerbated by this amendment. 

• Notably, those applying for family reunification are ineligible and unaccompanied minors still either require a connection with the ‘safe third country’, or must have transited through it to be removed there. 

• Other than for unaccompanied minors, the Regulation confirms that “The designation of a third country as a safe third country both at Union and national level may be made with exceptions for specific parts of its territory or clearly identifiable categories of persons.” Yet, concerns persist around the definition of ‘safe’, who holds the authority to make such determinations, and whether third countries can be considered categorically safe for all individuals — as evidenced by repeated failures to protect LGBTQIA+ people. Additionally, said third countries often refuse claims to asylum that have already been rejected by Europe. 

If adopted in their current form, the reforms will not contribute to achieving the purported aims of the APR. Instead, as stated by the European Council on Refugees and Exiles, appeals to the lack of connection criteria and requesting the right to remain will more likely block up the courts rather than ensure a quicker and smoother ‘processing’ of asylum applications.

Of greater concern, however, is the significant risk of indirect refoulement posed by the suggested reforms. This proposal will erode the rights of people on the move and endorse a form of border management that is dangerously close to formalising pushbacks into EU legislation without reliable guarantees that the applicant will be granted access to an adequate asylum procedure and will not be at risk of persecution or other ill or degrading treatment in the ‘safe third country’. In doing so, the Commission’s proposal further entrenches the EU’s strategy of outsourcing migration control to non-EU countries, shifting responsibility away from Member States and the Union itself.