Portugal: Adnan v. Immigration and Borders Service, National Director, 15 March 2018 No. 2163/17.7BELSB

Facts:

The claimant is married to two wives and currently has five children.  Two of his children are in Germany, were they have requested international protection. One of his wives is currently in France, and the other one is in Egypt with his three daughters, were they made a request for international protection.

Following five years of stay in Egypt, following his escape from Syria, and travelling between Malaysia and Ecuador, the appellant arrived at the Airport in Lisbon on the 29th of August 2017, coming from Istanbul, Turkey. The airport refused his entry on Portuguese territory on the basis that he did not hold a valid visa document.

The appellant requested international protection on the same day. He was subsequently transferred to the Centre for Temporary Installation inside the Airport. He presented, as demanded by the Immigration and Borders Service, his Syrian passport, altogether with his Syrian military identity card, for the assessment of his claim. The request for international protection was then communicated to the Portuguese Council for Refugees.

The appellant possessed a document from the Ecuador’s Ministry of Foreign Affairs and Human Movement which proves his request for international protection in Ecuador on the 17th of July 2017. He was obliged to attend an interview in that country on the 7th of September 2017.

The appellant holds a valid Egyptian Temporary Residence Authorization, issued on the basis of another international protection request claimed there.

His request for international protection was denied by the Immigration and Borders Service. The applicant appealed to the Administrative Court of Lisbon, which also found his claim inadmissible. He then made an appeal to the Central Administrative Court of the South.

Decision & reasoning:

According to the previous court, the applicant’s request violates Portuguese Asylum Law since he did not present any legal arguments suitable to support an international protection claim, according to Law 26/14. The court had considered Ecuador a “safe third country”, in harmony with Article 2, point r) Law 26/14.

The legal term “safe third country” refers to a country where: the asylum seeker stayed or passed by before arriving to Portugal; his life or freedom are not threatened; the non-refoulement principle is respected, as well as the prohibition of torture; he can present a claim to receive refugee status and he can receive protection in accordance with the Geneva Convention. If a country fulfils these requirements, it is considered safe, and an international protection request will therefore be denied to the claimant on that basis.

Article 2 n. º1 point r) of Law 27/2008 states as requirements to the definition of a “safe third country” the following: (1) the existence of a connection between the asylum seeker and the receiving country; (2) inclusion in a national list of countries considered safe; and (3) individual evaluation of the country’s security, in the light of international law.

Article 2 n. º1 point r) item i) of Law 27/2008 considers the connection requirement essential for the recognition of a country as being safe.

The Court argued there were insufficient facts to support the existence of a connection between the claimant and Ecuador, where he only had stayed for 28 days and no relatives of his live.

The Court considered Egypt to be the first country of asylum, in harmony with Article 19º-A n. º1 points c) and d) of the Law 26/14, dismissing the applicant’s claim for international protection. He still benefits from that same protection, according to Article 2, point z), of Law 27/2008, altered by Law 26/14. The applicant benefits from effective protection as well as protection against refoulement.

Outcome:

Appeal denied.

Observations/comments:

The European Court of Human Rights has never questioned the countries legitimacy to establish national lists of “safe third countries”.

The current approach of the Court is focused on analysing the procedural guarantees that must support the evaluation carried out by domestic authorities. The deporting State cannot simply count on its own definition of safe third country, having a procedural obligation to carry out a fair examination of the conditions in that country.

The presumption of safety in relation to a certain country cannot be absolute - the applicant must be able to challenge it. He/she must have an effective possibility to put forward his/her arguments, to avoid bearing the entire burden of proof.

In Ilias and Ahmed v. Hungary, Application No. 47287/15, the ECHR acknowledged the 1951 Refugee Convention did not prohibit such lists. However, if a country establishes a list of considered “safe third countries”, such presumption should be accompanied by an analysis of the relevant conditions in each country, and more importantly of its asylum system. The Member State should therefore provide documents which can demonstrate that the inclusion of a certain country in the safe third country list was made following a thorough assessment of the situation there.

This summary was written by Matilde Chora, LLM Student at Queen Mary University London.