Authors
Francisco Duran - Head Researcher Mondo Internazionale G.E.O. Cultura & Società
Simona Chiesa - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società
Marta Thorbjornsen - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società
Carola Sanzio - Junior Researcher Mondo Internazionale G.E.O. Cultura & Società
Abstract
The safe third country model, central to EU asylum policies, has drawn criticism for its legal, ethical, and practical shortcomings. Rooted in the principle of non-refoulement and the Asylum Procedures Directive, this framework allows Member States to transfer asylum seekers to third countries deemed safe. However, the model faces challenges in ensuring compliance with international human rights standards, providing adequate protections, and facilitating integration for transferred individuals. Examples from Italy’s agreements with Albania and other nations highlight concerns over systemic deficiencies, questionable safety standards, and potential violations of refugee rights. Critics argue that these measures externalize EU responsibilities, raising doubts about their deterrent effectiveness, legality, and long-term sustainability.
I. Introduction
As is well known, the regulation of arrival, reception, and recognition of status for individuals seeking international protection in the Member States of the European Union (EU) is governed by specific rules, distinct from the general provisions regulating the entry, movement, and treatment of other foreign nationals. Central to this framework is the principle of non-refoulement, enshrined in Article 33 of the 1951 Geneva Convention on the Status of Refugees and recognized as a customary norm of international law. Also relevant are the legal systems introduced by the Schengen and Dublin agreements, before their incorporation into EU law, and the regulatory framework established under Articles 77–80 of the Treaty on the Functioning of the European Union (Cellamare, 2023).
The concept of a safe third country is defined in Article 27 of the Asylum Procedures Directive and, where applicable, through an EU list of countries designated as safe. This term refers to a state where the asylum seeker faces no risk of persecution or serious harm, has access to the possibility of applying for refugee status, and, if recognized, is granted protection as outlined in the Refugee Convention. Additionally, the legal framework requires the existence of concrete ties to the safe third country, making the transfer of the applicant to that state a reasonable course of action. This concept serves as a basis for declaring an asylum application inadmissible (AIDA, 2024).
According to the European Commission (European Commission, 2024), a safe third country is characterized by its compliance with established international standards in the treatment of individuals seeking international protection, ensuring:
- no threats to the life or freedom of the applicant based on race, religion, nationality, membership of a particular social group, or political opinions;
- no risk of serious harm, as defined in Directive 2011/95/EU (the Recast Qualification Directive);
- respect for the principle of non-refoulement, as provided for in the Geneva Convention and its Protocol;
- prohibition of expulsion that would violate the right to be free from torture or cruel, inhuman, or degrading treatment, as guaranteed by international law;
- the ability to apply for refugee status and, if recognized, to receive protection in accordance with the Geneva Convention.
In other words, individuals fleeing their country of origin due to a well-founded fear of persecution, as set out in Article 1 of the Geneva Convention, are expected to submit their application for protection in the first safe country they reach. However, under readmission agreements between the country of destination, transit, or first arrival, asylum seekers may be returned to another safe state where they could have, or already have, obtained protection. This mechanism entails a transfer of responsibility for assessing the asylum application, raising questions about whether the states conducting such transfers are effectively fulfilling their obligations under the 1951 Convention (Cellamare, 2023).
Among safe third countries, the European directive introduces the category of safe European third countries (or "super safe countries"), which are not EU Member States but are parties to the Refugee Convention, the European Convention on Human Rights, and possess an asylum system aligned with international standards (Articles 36–39). The concepts of a safe third country and a country of first asylum enable the Member States to deem applications for international protection inadmissible for individuals originating from such states. In the case of a "super safe" country, it allows Member States to bypass a full examination of the application if there is evidence that the applicant has attempted to enter or has entered EU territory illegally from that country (Cellamare, 2023).
II. Legal framework in the context of the European Union
As mentioned, the concept of safe third countries finds its roots in one of the fundamental principles of the 1951 Convention Relating to the Status of Refugees: the principle of non-refoulement. This principle, enshrined in Article 33 of the Convention, prohibits states from expelling or returning (‘refouling’) a refugee ‘[…] to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion’.
While the Refugee Convention does not explicitly mention the notion of safe third countries, the principle of non-refoulement inherently supports the idea that a refugee should not be sent to a country where they face persecution, serious harm, or lack access to effective protection. In this context, the concept of safe third countries emerges as a mechanism to facilitate international cooperation in the protection of refugees, enabling states to transfer asylum seekers to other countries deemed safe, provided these countries uphold international refugee and human rights standards. This, in turn, revolves around the assumption that refugees, during their protection-seeking process, might find themselves transiting through multiple jurisdictions, which renders the condition of cooperation between states crucial (Gil-Bazo, 2015).
Such cooperation comes into play particularly concerning the distinction between a safe third country and a first country of asylum. According to EXCOM Conclusion 58(XL) on the ‘problem of refugees and asylum-seekers who move in an irregular manner from a country in which they had already found protection’, states are encouraged to recognize and uphold the concept of first country of asylum. This refers to a country where the asylum seeker has already found effective protection, meaning that their safety and fundamental rights are assured (Gil-Bazo, 2015), and they have access to a suitable and enduring solution, such as the possibility of permanent residence or naturalization.
Therefore, EXCOM Conclusion 58 emphasizes that if a refugee or asylum-seeker moves irregularly from a first country of asylum to another country, they should not automatically be entitled to seek protection in the latter unless it can be demonstrated that the first country failed to provide adequate protection in accordance with international standards. This distinction aims to prevent the practice of ‘asylum shopping’ while reinforcing the principle of international solidarity and burden-sharing among states.
In contrast to the first country of asylum concept, the legal notion of a safe third country derives its framework from instruments like the Directive 2013/32/EU (also known as ‘Asylum Procedure Directive’ of the European Union) and is conceptually distinct in international refugee law. In fact, unlike the first country of asylum, which, as stated, assumes the presence of a pre-existing relationship where the asylum seeker has already obtained durable protection, the safe third country concept allows for a prospective designation based on a general assessment of the country’s compliance with protection standards and international law. Article 38 of the Directive 2013/32/EU outlines specific criteria for this designation, including respect for the principle of non-refoulement, assurance of access to fair asylum procedures, and provision of adequate protection in accordance with international law. The key distinction here is that these criteria do not require evidence that the asylum seeker has prior ties to or actual protection in the third country (EUAA, 2022).
This divergence is significant: while the first country of asylum focuses on ensuring continuity of protection guaranteed under the 1951 Refugee Convention and its 1967 Protocol, the safe third country concept emphasizes the redistribution of asylum responsibilities to countries deemed ‘safe’, often according to systemic evaluations (Gil-Bazo, 2015).
This can create tensions with the individualized safeguards enshrined in Article 3 of the European Convention on Human Rights (ECHR) and Article 33 of the Refugee Convention, as it risks relying on presumptions of safety rather than verifying actual protection in practice. Consequently, the safe third country concept raises concerns about adequacy, accountability, and the risk of chain refoulement, particularly where the systemic evaluations underpinning its application fail to align with international refugee and human rights obligations.
Such concerns are exemplified by the specific case of the European Union, where a further legal framework has been adopted since 2013 (European Council, 2024), when the above-mentioned ‘Asylum Procedure Directive’ (Directive 2013/32/EU) was approved. This directive aimed at establishing common procedures for granting and withdrawing international protection by setting minimum standards that ensure fair and efficient asylum processes, consistent across all member states.
A notable feature of the directive is its acknowledgment of the high human rights and refugee protection standards upheld by many EU member states. Taking into account these shared values and legal commitments under several international agreements and treaties, namely the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights (ECHR), and the 1951 Refugee Convention and its Protocol, the directive introduces mechanisms that can reduce the administrative burden on Member States. Specifically, it allows for smooth procedures when asylum applicants seek protection in a country classified as a ‘European safe third country’ (EUAA, 2022). Moreover, while the EU’s approach aims at harmonizing asylum procedures across its Member States, it also raises concerns about the potential for systemic disparities in the application of the safe third country concept. For instance, while the EU recognizes the need for international cooperation to address refugee movements, there is an inherent tension between managing migration efficiently and safeguarding the individual rights of asylum seekers.
The application of the safe third country principle under Regulation (EU) No. 604/2013 (Dublin III), which assigns the responsibility for processing asylum claims to the first EU Member State of arrival, often overlaps with the safe third country legal framework. This can result in transfers to countries where asylum seekers may not receive the level of protection promised under EU law or international treaties, raising the risk of violations of rights, particularly in situations where the third country is not fully compliant with international refugee protection standards (Gil-Bazo, 2015).
III. Safe third countries: an examination
As has been previously explained, there are international, regional, and national legal frameworks that collectively shape the legislation governing refugee migration, providing guidance on the standards countries must meet to legitimately apply the notion of safe third countries while ensuring the protection of asylum seekers.
The first requirement emphasized by the international system is the cooperation between States regarding their obligations toward refugees. This includes not only offering asylum but the chance of resettlement and integration (UNHCR). Another essential criterion is the State’s methodology for applying the safe third country concept for each individual case, including a careful evaluation of whether the third country’s asylum system meets the necessary standards (Mouzourakis, 2024). However, the first aspect one should consider when assessing this course of action lies in the word “safe”. What does it mean to feel safe in a country? What standards must be met to qualify for this label? And are States overseeing and evaluating compliance with the requirements necessary to qualify as a safe third country?
When evaluating the safety of refugees in a country of asylum, two grand aspects must be considered: firstly, is the country providing adequate protection to refugees, ensuring their safety from persecution and respecting the principle of non-refoulement? Secondly, are refugees being treated in a manner consistent with international human rights standards, which guarantee their dignity, rights, and access to basic needs? Just as States are subject to rigorous evaluation by international and regional organizations for their refugee policies, the same level of scrutiny must be applied when governments designate other countries as ‘safe’.
By default, all European Union member States can be safe third countries, as it is generally presumed that they provide a functioning asylum system and a commitment to respect and uphold human rights standards under EU and international law. However, the rise of far-right politics across Europe, often accompanied by nationalist and anti-immigration policies, has raised concerns about the erosion of these protections and rights in practice. Countries such as Austria, France, Germany, Denmark, Sweden and Norway have implemented increasingly restrictive border control measures in recent years (Del Guercio, 2019).
Taking Italy as an example, it is a signatory to the 1951 Refugee Convention, its 1961 Protocol, as well as the Dublin Regulation System, and under EU and international law Italy commits to provide asylum and protect human rights, implying that it can be considered a safe third country. Despite these formal commitments, Italy has been frequently failing its national, regional and international obligations in regard to this matter. Over the last couple of years, Italy has faced criticism for its treatment of asylum seekers and migrants, by repeatedly closing its ports to migrant boats, criminalizing humanitarian rescue operations by NGO’s and prosecuting human rights defenders (Human Rights Watch, 2022).
Several legislative measures have exacerbated this situation. The Minniti Decree of 2017, for instance, posed significant restrictions on asylum seekers, including limiting their right to appeal when denied international protection, a measure widely criticized as discriminatory and unconstitutional. It also introduced programmes for unpaid community service for refugees as a form of integration and expanded pre-removal detention centers for migrants (ECRE, 2017). The subsequent Salvini Decree of 2018 intensified these policies by limiting access to humanitarian protection, prolonging the citizenship process from two years to four, and excluding asylum seekers from integration programmes and reception centers for temporary housing, pushing many refugees into homelessness (Corsi, 2019).
The situation has further declined in recent years, reflecting an increasingly hostile environment for those seeking protection. In 2023, another restrictive law further limited refugee’s access to secondary level reception centers to refugees. Furthermore, the Italian government continued to limit and restrict the access to asylum applications, accepting only 37% of the 136,826 applications submitted, marking a sharp decline from the 47% recognition rate in 2022 (ECRE, 2023).
Let us now examine how Italy employs the concept of safe third countries, starting with the nations, beyond EU member States, it deems safe: Albania, Algeria, Bangladesh, Bosnia-Erzegovina, Cameroon, Capo Verde, Colombia, Côte D’Ivoire, Egypt, Gambia, Georgia, Ghana, Kosovo, North Macedonia, Marocco, Montenegro, Nigeria, Perù, Senegal, Serbia, Sri Lanka and Tunisia (Decreto 7 maggio 2024). This list is written and updated by the Ministry of Foreign Affairs in consultation with the Ministries of Interior and Justice, guided by data and information by the National Asylum Commission, the European Union Agency for Asylum, the United Nations High Commissioner for Refugees and the Council of Europe (Del Guercio, 2019). The European Court of Justice and Italian courts have stated that a country must be consistently safe for all asylum seekers across its entire territory. However, this classification raises significant concerns. Several countries on this list, including Egypt, Bangladesh, Albania and Nigeria, have faced criticism for their asylum policies and territorial or group-specific exceptions. Nigeria, for example, had a relatively low asylum recognition rate of just 41% in 2022. Tunisia, on the other hand, has been flagged by civil society organizations for increasing repression of political opposition, civil society groups and minority communities. Both the courts of Catania and Florence have in fact deemed Tunisia as unsafe (EUAA, 2024).
Over the past year, Italy has continued to deepen its cooperation with Albania, particularly in regards to immigration and asylum seekers. In 2023, the two countries signed a protocol aimed at strengthening cooperation on these issues. A key component of this agreement involved the construction of two facilities in Albanian territory, though under Italian jurisdiction, designed to host migrants rescued from international waters by the Italian Navy and the Italian Coast Guard. These individuals are then directed to return procedures or to borders (ECRE, 2023). The Shengjin center focuses on registering asylum applications and identifying vulnerable applicants who are exempt from border procedures and should thus be returned to Italy. In the Gjader center, on the other hand, applicants will wait for the decision on their asylum request for up to 3 months. This facility is organized into three sections: one for asylum seekers, another for migrants awaiting repatriation and a third for those undergoing criminal proceedings (De Leo, 2024). This protocol represented a new approach to migration management strategies, not only by accelerating the procedures but also by fully externalizing the process beyond Italy’s borders.
This strategy, initially praised by the President of the European Commission as innovative, now faces significant challenges and raises serious concerns. Critics argue that it risks undermining refugee’s rights and externalizing EU obligations, particularly to Albania — a country subject to scrutiny by the European Court of Justice and the Civil Court of Rome, which have questioned whether its system meets EU standards comprehensively. Additionally, according to the UNHCR, a country cannot be deemed as “safe” if a significant number of its own citizens seek international protection elsewhere. This is notably the case with many Albanians looking for asylum in EU member States (Del Guercio, 2019). Following the recent opening of these facilities in Albania, Italian courts and the European Court of Justice have ruled that some deportations linked to these centers were invalid, citing that several countries on Italy’s safe countries list do not fully meet safety standards. These rulings also questioned the legality of using accelerated border procedures outside of Italian territory. In response, the Italian government enacted a new decree to strengthen the legal framework underpinning this classification. However, this move did not alter the protocol with Albania. Prime Minister Giorgia Meloni reaffirmed the continuation of the Albanian centers operations, despite ongoing questions about the protocol’s compliance with EU and international law. The government then revised its list of safe third countries, removing Cameroon, Colombia and Nigeria, deemed by the European Court of Justice as not entirely safe (Peretti, 2024).
While Italy’s new immigration model is being examined by other countries as a potential template for similar agreements, members of civil society and human rights organizations warn about the dangers of externalizing EU responsibilities by moving vulnerable individuals to closed centers outside of EU territory, not fully addressing the vulnerabilities of asylum seekers and jeopardizing their fundamental right to seek protection (IRC, 2024).
IV. Challenges of the safe third country model
The concept of external asylum processing, often referred to as the "safe third country model," has sparked considerable debate, with critics raising concerns about its legal, ethical, and practical implications. This approach, which involves transferring asylum seekers to third countries for processing, faces significant hurdles in terms of deterrent effectiveness, compliance with international obligations, and long-term integration outcomes.
i. Questionable deterrent effectiveness
The capacity of such schemes to deter irregular migration remains unproven. While Australia’s offshore detention system in Nauru and Manus Island achieved some deterrent effect, this was largely due to the extensive scale of transfers and stringent conditions. However, this approach imposed severe humanitarian costs, including prolonged detention and widespread mental health crises. European models, such as the UK-Rwanda agreement and the Albanian initiative, propose far smaller transfer numbers, making it unlikely they will replicate Australia’s outcomes. Furthermore, limited scope and ambiguous implementation timelines risk reducing these schemes to symbolic measures rather than impactful solutions to irregular migration.
ii. Legal and ethical concerns in host countries
The principle of non-refoulement—a cornerstone of international refugee law—obliges states to ensure asylum seekers are not returned to persecution or harm. Many third countries, despite ratifying international conventions, lack robust asylum systems capable of safeguarding these rights. Insufficient resources, weak institutional frameworks, and substandard living conditions in potential host states raise serious concerns. Issues such as inadequate access to housing, healthcare, and legal protections often fail to meet international standards, exacerbating the vulnerabilities of transferred individuals. Reports of overcrowding, legal uncertainty, and subpar medical care further highlight the risks of such arrangements.
iii. Integration challenges and political polarization
The success of external processing depends on host countries' ability to integrate asylum seekers through employment access, education, and basic social services. Yet, past experiences—such as Australia’s prolonged detentions under harsh conditions—demonstrate the difficulties in achieving meaningful integration. European initiatives face similar challenges, as third-country frameworks for supporting integration remain underdeveloped. Politically, these schemes have polarized EU member states, with disagreements over their legality, cost-effectiveness, and ethical implications. Critics argue that they externalize responsibility onto less-resourced nations, undermining the principle of shared global responsibility for refugee protection. As a result, such schemes risk both political backlash and operational failure.
V. Conclusion
The safe third country model represents a controversial approach to managing asylum processes, aiming to balance migration control with international protection obligations. While the framework theoretically aligns with principles of non-refoulement and international refugee law, its practical application reveals significant shortcomings. Challenges include the inadequacy of protection systems in third countries, risks of human rights violations, and limited integration opportunities for asylum seekers.
Moreover, the approach often shifts responsibilities onto less-resourced nations, undermining the principle of shared responsibility central to international refugee protection. Politically, these schemes exacerbate divisions within the EU, raising questions about their legality, ethical implications, and effectiveness as a deterrent to irregular migration.
For the model to succeed, robust safeguards, stronger monitoring mechanisms, and meaningful cooperation with third countries are essential. Without such measures, the safe third country model risks becoming a symbolic policy tool, failing to address the complexities of global migration while jeopardizing the rights and dignity of vulnerable individuals.
References
AIDA - Asylum Information Database (2024, July), European Council on Refugees and Exiles (ECRE). Safe third country. Retrieved from: https://asylumineurope.org/reports/country/spain/asylum-procedure/the-safe-country-concepts/safe-third-country/ (1-A).
Cellamare, G. (2023). L’irragionevole leggerezza del concetto di Paese terzo sicuro. Sezione terza: Stato di accoglienza e Paese terzo sicuro: prospettiva italo-spagnola. Retrieved from: https://ricerca.uniba.it/handle/11586/448360 (2-B).
Corsi, C. (2019). Evaluating the ‘Salvini Decree’: Doubts of Constitutional Legitimacy.
De Leo, A. (2024, October). Managing Migration the Italian Way. Verfassungsblog. Retrieved from https://verfassungsblog.de/managing-migration-the-italian-way/
Del Guercio, A. (2019). Migration and Fundamental Rights: The Case of Italy.
European Commission. Migration and Home Affairs (2024). Retrieved from: https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/safe-third-country_en (1-A).
European Council (2024). Timeline - EU migration policy. Retrieved from: https://www.consilium.europa.eu/en/policies/eu-migration-policy/migration-timeline/ [Accessed 25 Nov. 2024].
European Council on Refugees and Exiles (ECRE). (2017, April). Building Fortress Italia by Introducing a Wall of Laws. Retrieved from https://ecre.org/building-fortress-italia-by-introducing-a-wall-of-laws/
European Council on Refugees and Exiles (ECRE). (2023). AIDA Country Report on Italy: 2023 Update. Retrieved from https://ecre.org/aida-country-report-on-italy-2023-update/
European Union Agency for Asylum (EUAA). (2022). Applying the Concept of Safe Countries in the Asylum Procedure. Retrieved from https://euaa.europa.eu/sites/default/files/publications/2022-12/2022_safe_country_concept_asylum_procedure_EN.pdf
European Union Agency for Asylum (EUAA). (2024). Safe Country Concepts. Retrieved from https://euaa.europa.eu/asylum-report-2024/332-safe-country-concepts
Gil-Bazo, M.-T. (2015). The Safe Third Country Concept in International Agreements on Refugee Protection: Assessing State Practice. Netherlands Quarterly of Human Rights, 33(1), pp.42–77. Retrieved from: https://www.unhcr.org/media/safe-third-country-concept-international-agreements-refugee-protection-assessing-state [Accessed 21 Nov. 2024].
Human Rights Watch (HRW). (2022). Italy’s Criminalisation of Migrant Rescue: The Luventa Case. Retrieved from https://www.hrw.org/news/2022/12/13/italys-criminalisation-migrant-rescue-luventa-case
International Rescue Committee (IRC). (2024, October). What is the Italy-Albania Asylum Deal? Retrieved from https://www.rescue.org/article/what-italy-albania-asylum-deal#:~:text=In%20February%202024%2C%20Italy%20finalized,seekers%20outside%20of%20EU%20borders
Italian Ministry of Foreign Affairs and International Cooperation (MAECI). (2024, May 7). Decreto 7 maggio 2024.
Mouzourakis, M. (2024, February). The Concept of “Safe Third Country” Legal Standards & Implementation in the Greek Asylum System. Stiftung PRO ASYL and Refugee Support Aegean.
Peretti, A. (2024). Italy Approves New Decree on Safe Countries to Secure Italy-Albania Migrant Deal. Euractiv. Retrieved from https://www.euractiv.com/section/politics/news/italy-approves-new-decree-on-safe-countries-to-secure-italy-albania-migrant-deal/
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L 180/31. Retrieved from: https://eur-lex.europa.eu/eli/reg/2013/604/oj
UNHCR. (n.d.). The Safe Third Country Concept in International Agreements on Refugee Protection: Assessing State Responsibility. Retrieved from https://www.unhcr.org/media/safe-third-country-concept-international-agreements-refugee-protection-assessing-state