CHAPTER III

PROCEDURES AT FIRST INSTANCE
SECTION III

The concept of safe third country
Article 38
1
Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned:
a
life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
b
there is no risk of serious harm as defined in Directive 2011/95/EU;
c
the principle of non-refoulement in accordance with the Geneva Convention is respected;
d
the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and
e
the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
2
The application of the safe third country concept shall be subject to rules laid down in national law, including:
a
rules requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country;
b
rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;
c
rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances. The applicant shall also be allowed to challenge the existence of a connection between him or her and the third country in accordance with point (a).
3
When implementing a decision solely based on this Article, Member States shall:
a
inform the applicant accordingly; and
b
provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.
4
Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.
5
Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.