COMMISSION STAFF WORKING DOCUMENT Review of the safe third country concept Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2024/1348 as regards the application of the ‘safe third country’ concept
Date: 2025-05-20
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, aid to refugees, foreign national, illegal migration, international protection, public safety, repatriation grant, return migration, right of asylum, third country

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 20.5.2025  SWD(2025) 600 final  COMMISSION STAFF WORKING DOCUMENT Review of the safe third country concept Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2024/1348 as regards the application of the ‘safe third country’ concept  {COM(2025) 259 final}  
 
 
1.  Background 

Article 77 of the Asylum Procedure Regulation (2024/1348) (‘APR’)1 requires the Commission to 
review  the  safe  third  country  concept  (‘STC  concept’)  and,  where  appropriate,  proposing  any 
targeted amendments by 12 June 2025, thus before the APR applies. On this basis, the Commission 
carried out a holistic review of the STC concept. 

This  Staff Working  Document  (‘SWD’)  presents  the  review  of  the  STC  concept  on  which  the 
Commission services based the related proposal of targeted amendments of the APR.  

When applying the STC concept, Member States may reject asylum applications as inadmissible 
without examining whether the persons meet or not the conditions for being granted protection in 
the EU. The STC concept may be applied as part of the border procedure.  

The Commission services adopted a holistic approach in reviewing the STC concept. They first 
considered the Member States’ experiences and challenges in applying the STC concept so far, as 
voiced in different fora and characterised in different public reports and studies (Section 2). Next, 
they examined whether international law (the 1951 Geneva Convention and the 1950 European 
Convention of Human Rights) and EU primary law (including the Charter of Fundamental Rights 
of the EU), allow for further revisions to the conditions for applying the STC concept and its legal 
safeguards, with the aim of facilitating its application by Member States (Section 3). The relevant 
jurisprudence of the European Court of Justice (‘CJEU’) and of the European Court of Human 
Rights (‘ECtHR’) is examined in the same context. Finally, the Commission services consulted the 
Member States, the European Parliament, UNHCR and civil society representatives on the scope 
for revising the STC concept with a view to simplifying its practical application in EU Member 
States. 

As a result of this review, the Commission services concluded that there is scope to revise the 
connection  criterion,  as  it  is  not  a  requirement  under  international  law,  and  the  automatic 
suspensive effect of the appeal. However, there is no scope for revision regarding the criteria 
for ‘safety’ of the third country, as they are already aligned with the minimum standards under 
international law, or other aspects linked to due process, including the individual assessment, as 
these are requirements under EU and international law and jurisprudence.  

2.  Application of the STC concept in the EU Member States: legal framework, patterns, 

and challenges 

The STC concept was developed in international law the early 1980s, in a context of a surge in 
mixed migration flows. Its purpose was to allow the countries most affected by the flows to transfer 
asylum-seekers  to  third  countries  where  they  could  receive  protection  that  met  international 
standards.  

1  

Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a 
common  procedure  for  international  protection  in  the  Union  and  repealing  Directive  2013/32/EU,  OJ  L, 
2024/1348, 22.5.2024.  

1 

 
 
In  the  framework  of  the  EU  Common  European Asylum  System,  the  application  of  the  STC 
concept is optional2. When applied, it essentially means that Member States may reject asylum 
applications  as  inadmissible  -  i.e.,  without  examining  whether  the  persons  meet  or  not  the 
conditions for being granted protection in the EU - whenever the applicants could or should have 
sought international protection in a third country that is considered safe, both in general terms and 
for the specific situation of the persons concerned.  

Currently  the  application  of  the  STC  concept  is  governed  by  the Asylum  Procedures  Directive 
(2013/32/EU) (‘APD’)3. According to Article 33(2)(c) of the APD, Member States may declare 
applications inadmissible based on the STC concept where the following conditions are met:  

1.  The third country must meet the conditions for being considered ‘safe’, as set out in Article 
38(1) of the APD. In essence, there should be no risk of persecution or of serious harm in 
that third country in general; there must be the possibility to request refugee status and, if 
found to be a refugee, to receive protection in accordance with the 1951 Geneva Refugee 
Convention; and the principle of non-refoulement must be respected. 

2.  The Member States must establish the existence of a connection between the applicant and 
the third country, meaning that there must be a link between the asylum-seeker and the 
STC that makes it reasonable to transfer the applicant to that STC. Article 38(2) of the APD 
requires Member States to lay down in national legislation “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”.  

3.  The  Member  State  intending  to  apply  the  STC  concept  must  respect  all  due  process 
guarantees established by the APD. Article 38(2)(c) of the APD establishes that Member 
States  must  lay  down  in  national  law  guarantees  for  an  individual,  case-by-case 
assessment  of  whether  the  country  is  safe  for  each  applicant  concerned,  as  well  as  the 
possibility for the applicant to challenge in court both the existence of a connection to the 
third country in question and the fact that the country would be safe given his/her specific 
circumstances.  The  same  provision  requires  Member  States  to  lay  down  in  national 
legislation a methodology for the competent authorities to verify that the safe third country 
concept  may  be  applied  to  a  particular  country  or  to  a  particular  applicant,  which  shall 
include a 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.  

2  

3  

This  is  the  case  under  both  the  Asylum  Procedures  Directive  (2013/32  –  see  below)  and  the  Asylum 
Procedures Regulation (2024/1348 – see above).  
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures 
for granting and withdrawing international protection (recast), OJ L 180, 29.6.2013, pp. 60–95. 

2 

 
 
In practical terms, the application of the STC concept by EU Member States has been uneven so 
far4. Three Member States do not have the STC concept covered in national legislation5. All other 
Member States have the concept included in national legislation, but there are differences in terms 
of application: five Member States adopted lists of safe third countries6, in twelve Member States 
the  concept  is  applied  only  on  a  case-by-case  basis7,  and  six  Member  States  do  not  apply  the 
concept in practice8. (See in Annex a table with the situation country by country). 

Member  States  have  signalled  in  various  EU  fora  that  they  are  confronted  with  common 
challenges in the application of the STC concept. Some challenges relate to the conditions that 
must be met under the APD in order to apply the STC concept, including satisfying the conditions 
for designating a third country as ‘safe’ and proving the existence of a connection. Many Member 
States  have  signalled  that  the  threshold  in  the APD  for  applying  the  STC  is  too  high.  Other 
challenges relate to the difficulty to establish collaboration with third countries for the application 
of  the  concept.  In  particular,  some  Member  States  have  noted  that  the  application  of  the  STC 
concept  vis-à-vis  third  countries  risks  negatively  affecting  their  bilateral  relations  with  those 
countries. 

The STC concept was revised as part of the Pact on Migration and Asylum, which was adopted 
in May 2024. The Asylum Procedure Regulation (2024/1348) (‘APR’), which will apply from 12 
June 2026,  introduced several  changes  to the STC rules, aimed  at  allowing  for a broader and 
more flexible applicability of the STC concept. These include:  

(i) 

(ii) 

(iii) 

The  widening  of  the  criteria  for  designating  a  third  country  as  ‘safe’  and,  in 
particular, allowing countries that have not subscribed to the 1951 Geneva Refugee 
Convention to also be designated as STCs, as long as they can ensure ‘effective 
protection’ as defined in Article 57(2) of the APR.  
An explicit reference to family links and stay in the third country as possible 
indications of a connection (recital 48 APR). 
The option to designate a third country as ‘safe’ with exceptions for parts of the 
territory or clearly identifiable categories of persons (recital 46 and Article 59(2) 
APR)9. 

4  

5  
6  
7  
8  
9  

See for example EUAA (2022): Applying the Concept of Safe Countries in the Asylum Procedure; EUAA: 
Who is Who - Who is Who in International Protection in the EU+: Countries Applying the Concept of Safe 
Countries in the Asylum Procedure – last update 4 October 2024. See also Osso, B., 'Unpacking the Safe 
Third  Country  Concept  in  the  European  Union:  Borders,  Legal  Spaces,  and  Asylum  in  the  Shadow  of 
Externalization', International Journal of Refugee Law, Vol. 35(3), October 2023. Thym, D., Expert Opinion 
on Legal Requirements for Safe Third Countries in Asylum Law and Practical Implementation Options, April 
2024. 
FR, IT, PL.  
BG, EE, DE, EL, HU.  
AT, BE, CY, DK, FI, HR, IE, LV, LT, MT, NL, SE. 
CZ, PT, RO, SK, SI, ES. 
The Commission recently proposed to bring forward the application of Article 59(2) APR and Article 61(2) 
APR, concerning the possibility to designate safe countries of origin and safe third countries with territorial 
and/or category exceptions. See Proposal for a Regulation of the European Parliament and of the Council 
amending Regulation (EU) 2024/1348 as regards the establishment of a  list of safe  countries of origin at 
Union level, COM(2025) 186 final of 16.4.2025.  

3 

 
 
(iv) 

(v) 

The introduction of a presumption of safety for third countries with which the EU 
has  concluded  an  STC  agreement  pursuant  to Article  218  TFEU  (Article  59(7) 
APR). 
The introduction of the possibility to adopt a common list of STCs designated at 
EU level - without precluding the possibility for the Member States to designate 
additional STCs at national level (recital 81 and Articles 60, 63 and 64 APR). 

3.  Scope for revision under international and EU primary law 

The STC concept is not explicitly regulated by the 1951 Geneva Refugee Convention10 or by the 
1950 European Convention on Human Rights11, although several of their provisions, particularly 
the principle of non-refoulement, are directly relevant to its application (including as interpreted 
for instance by the European Court of Human Rights). In the absence of binding provisions laid 
down  in  international  conventions  on  the  STC  concept  itself,  the  international  organisations 
mandated  to  provide  guidance  on  the  application  of  the  latter  issued  recommendations  on  the 
conditions for the application of the STC concept, to guide its application in a manner consistent 
with relevant provisions of these Conventions as interpreted by relevant courts and bodies.  

In Conclusions adopted in 1979, UNHCR Executive Committee noted that “where it appears that 
a person, before requesting asylum, already has a connection or close links with another state, s/he 
may if it appears fair and reasonable be called upon first to request asylum from that state”. In 
Conclusions adopted in 1989, UNHCR Executive Committee underscored that “where refugees 
and asylum-seekers move in an irregular manner from a country where they have already found 
protection, they may be returned to that country”12. The Council of Europe gave recommendations 
on the application of the STC concept in the 1997 Guidelines on the application of the safe third 
country concept13. UNHCR published more detailed recommendations on the conditions for the 
application of the STC concept in the 2018 Legal considerations regarding access to protection 
and a connection between the refugee and the third country in the context of return or transfer to 
safe  third  countries  (‘UNHCR  2018  recommendations”)14.  Finally,  UNHCR  updated  its 
recommendations on the application of the STC concept in the context of the legislative process 
for the adoption of the APR15.  

The Commission services examined the scope for revising the conditions for the application of the 
STC  concept, taking into account the  above  (non-binding) recommendations.  The Commission 
services took a more holistic view of the concept, considering broader factors to determine whether 
there is scope for greater flexibility. In this context, the Commission services also reviewed the 
due process guarantees available to applicants in the application of the STC concept by Member 

10  
11  
12  
13  

14  

15  

https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention. 
https://www.echr.coe.int/european-convention-on-human-rights  
EXCOM Conclusion No. 58 (XL) 1989, para. (f). 
Recommendation N° R (97) 22 of the Committee of Ministers to Member States containing Guidelines on 
the Application of the Safe Third Country Concept | Refworld  
Legal  considerations  regarding  access  to  protection  and  a  connection  between  the  refugee  and  the  third 
country in the context of return or transfer to safe third countries | Refworld  
UNHCR, Comments on the European Commission's Proposal for an Asylum Procedure Regulation, COM 
(2016) 467, April 2019: refworld.org/legal/intlegcomments/unhcr/2019/en/122595. 

4 

 
 
States, particularly  the individual  assessment  of safety  based on the specific circumstances of 
each applicant, as well as the legal safeguards related to the right to appeal/effective remedy.  

(a) Criteria for designating a third country as safe 

As  regards  the  conditions  for  the  designation  of  a  third  country  as  ‘safe’,  UNHCR  2018 
recommendations were that the third country should:  

(re)admit the person; 

• 
•  grant the person access to a fair and efficient procedure for determination of refugee status 

and other international protection needs; 

•  permit the person to remain while a determination is made; and 
•  accord  the  person  standards  of  treatment  commensurate  with  the  1951  Convention  and 
international  human  rights  standards,  including  –  but  not  limited  to  –  protection  from 
refoulement; 

•  where she or he is determined to be a refugee, s/he should be recognised as such and be 

granted lawful stay. 

The criteria recommended by the Council of Europe in the 1997 Guidelines on the application of 
the safe third country concept16 are similar: 

a)  “observance by the third country of international human rights standards relevant to asylum 
as  established  in  universal  and  regional  instruments  including  compliance  with  the 
prohibition of torture, inhuman or degrading treatment or punishment; 

b)  observance  by  the  third  country  of  international  principles  relating  to  the  protection  of 
refugees as embodied in the 1951 Convention and the 1967 Protocol relating to the Status 
of Refugees, with special regard to the principle of non-refoulement; 

c)  the third country will provide effective protection against refoulement and the possibility 

to seek and enjoy asylum;  

d)  the asylum-seeker has already been granted effective protection in the third country or has 
had the opportunity, at the border or within the territory of the third country, to make contact 
with that country’s authorities in order to seek protection there before moving on to the 
Member  State  where  the  asylum  request  is  lodged  or,  that  as  a  result  of  personal 
circumstances  of  the  asylum-seeker,  including  his  or  her  prior  relations  with  the  third 
country,  there  is  clear  evidence  of  the  admissibility  of  the  asylum-seeker  to  the  third 
country.”  

In relation to the Commission’s proposal for the adoption of an Asylum Procedure Regulation of 
2016, UNHCR recommended the following criteria for designating a third country as ‘safe’17:  

•  access  to  a  fair  and  efficient  asylum  procedure  and  a  correct  determination  of  refugee 

status; 
taking into account asylum seeker’s vulnerabilities;  

• 

16  
17  

As cited above. 
UNHCR, Comments on the European Commission's Proposal for an Asylum Procedure Regulation, COM 
(2016) 467, April 2019: refworld.org/legal/intlegcomments/unhcr/2019/en/122595.  

5 

 
 
•  a right to family reunification for recognised refugees;  
•  a right of legal residence (rather than only a right to remain);  
•  access  to  reception  facilities  and  the  labour  market  (rather  than  only  to  means  of 

subsistence). 

It should be noted that UNHCR therefore complemented its 2018 recommendations on the safety 
conditions for the designation of an STC and added, in particular:  

- 
referral of the transferred vulnerable applicants for support in the third country;  
-  offering the transferees a right to residence, rather than only the right to remain; and  
- 

full access to the labour market and to reception facilities, rather than limiting reception 
conditions to covering only basic needs (‘means of subsistence’).  

With  these  additional  requirements,  UNHCR  aims  to  further  secure  the  sustainability  of  the 
transfers  based  on  the  STC  concept  and  to  reduce  the  incentives  for  transferred  individuals  to 
engage in secondary movements to the Union.  

For the purposes of the review, the Commission services have assessed the safety conditions of the 
APR and UNHCR recommendations.  

Article  59(1)  of  the APR  establishes  four  conditions  of  ‘safety’  for  the  designation  of  a  third 
country as ‘safe’, which can be summarised as follows: no risk of persecution, no risk of serious 
harm (within the meaning of the Qualification Regulation18 and the corresponding provisions in 
international refugee and human rights law); no risk of refoulement (in the third country itself and 
with respect to the possibility of a further transit to another third country or country of origin); and 
the possibility to request and, where conditions are fulfilled, to receive  ‘effective protection’ as 
defined in Article 57 of the APR.  

The notion of effective protection, as laid down in Article 57 of the APR, was introduced, inter 
alia, to allow the application of the STC concept vis-à-vis countries that are not signatories of the 
1951 Geneva Refugee Connection. The question is whether the notion of ‘effective protection’ is 
in line with international law and, whether there is scope or need for adjusting it to facilitate the 
application of the STC concept by Member States.  

According  to Article  57  of  the APR,  ‘effective  protection’  means  that  the  third  country  should 
provide:  

- 
- 

- 

the right to remain on the territory of the third country in question;  
access to means of subsistence sufficient to maintain an adequate standard of living with 
regard to the overall situation of that hosting third country;  
access to healthcare under the conditions generally provided for in that third country;  

18  

Regulation (EU) 2024/1347 of the European Parliament and of the Council of 14 May 2024 on standards for 
the qualification of third-country nationals or stateless persons as beneficiaries of international protection, 
for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the 
protection  granted,  amending  Council  Directive 2003/109/EC  and  repealing  Directive  2011/95/EU  of  the 
European Parliament and of the Council, OJ L, 2024/1347, 22.5.2024 

6 

 
 
- 

- 

access to education under the conditions generally provided for in that third country; and 
finally,  
effective protection until a durable solution can be found.  

There  has  been  a  debate19  as  to  whether  the  condition  that  the  STC  should  provide  “means  of 
subsistence sufficient to maintain an adequate standard of living” goes beyond what refugees are 
entitled to under the 1951 Geneva Refugee Convention. Ultimately, the debate revolves around 
whether the transferred person should be given full or limited access to gainful employment and 
social benefits in the third country. 

UNHCR  observed  in  the  context  of  its  2018  recommendations  that  access  to  employment  and 
social  benefits  does  not  need  to  be  immediate  upon  transfer  to  the  third  country. According  to 
UNHCR 2018 recommendations:  

(a) the right to self-employment under Article 18 of the 1951 Convention may be delayed 
for  a  limited  period  of  time,  but  it  cannot  be  denied  over  the  long-term  because  of 
government delays in the asylum procedures, and  

(b) once it is determined the person is a refugee, s/he should be granted lawful stay and 
have access to the corresponding rights of the 1951 Convention.  

A similar logic should apply mutatis mutandis in third countries that do not apply the 1951 Geneva 
Convention, but should still provide ‘effective protection’. However, UNHCR recommendations 
made in relation to the adoption of the APR state that the third country should ensure full access 
to the labour market immediately, rather than providing only “means of subsistence”. 

According  to  recital  51  of  the APR,  “access  to  means  of  subsistence  sufficient  to  maintain  an 
adequate standard of living” should be understood as “including access to food, clothing, housing 
or shelter and the right to engage in gainful employment, for example through access to the labour 
market,  under  conditions  not  less  favourable  than  those  of  non-nationals  of  the  third  country 
generally in the same circumstances.” 

This  is  aligned  with  the  requirements  of  the  1951  Geneva  Convention.  Essentially,  the  rights 
secured by the Geneva Convention for refugees legally present on the territory are at the level of 
“the  most  favourable  treatment  accorded  to  nationals  of  a  foreign  country  in  the  same 
circumstances”, not the same as those for nationals. This applies to the right to engage in wage-
earning employment (Article 17 of the Geneva Convention), the right to housing (Article 21 of the 
Geneva Convention), and the right to self-employment (Article 18 of the Convention). Only for 
the right of access to education (Article 22) and right to social security and benefits (Article 24) 
must legally present refugees be given the same treatment as nationals.  

It  should  also  be  noted  that  the  Convention  does  not  require  granting  refugees  the  right  to 
residence, as UNHCR currently recommends as a pre-condition for applying the STC concept.  

The additional conditions recommended by UNHCR, and supported by some stakeholders, aim to 
increase the sustainability of the transfer and reduce incentives for returning to the EU. However, 

19  

See Thym D. (2024), op.cit. 

7 

 
 
the Commission services consider that the content of the notion of ‘effective protection’ laid down 
in Article  57  of  the APR  is  aligned  with  the  binding  provisions  of  the  1951  Geneva  Refugee 
Convention. In fact, some of the new safety conditions recommended by UNHCR in relation to 
the adoption of the APR, in particular (a) granting transferred persons the right to residence in the 
STC, and (b) ensuring the right to employment and housing on the same terms as nationals, go 
beyond what is required under the Geneva Convention for legally residing refugees.  

Articles  59(1)  and  57  of  the APR  do  not  explicitly  state  that  the  third  country  should  agree  to 
readmit the person, as per UNHCR’s 2018 recommendations. Nonetheless, Article 59(9) of the 
APR establishes that, if the third country does not (re)admit the person, the Member State must 
examine the person’s application on its merits. The CJEU, in case C-134/2320 established that “the 
suspension  of  the  admission  or  readmission  of  applicants  for  international  protection  to  the 
territory of a third country designated as generally safe by a Member State has the consequence 
that that Member State must ensure that access to a procedure is given in accordance with the basic 
principles  and  guarantees  described  in Articles  6  to  30  of  Directive  2013/32”  (para  53  of  the 
judgment). 

In the light of these considerations, it appears that the safety criteria in the APR are aligned 
with the requirements of the Geneva Convention.  

(b) Connection 

While mandatory under the Asylum Procedures Directive and the APR, the connection criterion is 
not required by international law.  

The Commission services recognise certain potential advantages to not applying the connection 
criterion:  greater  flexibility  in  managing  asylum  applications  –  particularly  during  times  of 
disproportionate  migratory  pressure  and  crisis;  reducing  the  administrative  burden  of  proving 
connection or transit, and opening the possibility to establish new partnerships with more third 
countries for the application of the concept, which could ultimately expand the protection space 
globally. 

The connection condition  has not  been  addressed by the ECtHR’s  jurisprudence. However, the 
CJEU has interpreted the connection criterion in two landmark cases. It is important to note that 
the Court was interpreting the APD, where the connection is required. In its 2020 ruling in Case 
C-564/18 LH21, the Court found that the conditions laid down in Articles 33(2) and 33(2)(b) of the 
Asylum Procedures Directive were not satisfied, as the condition of having a connection to a safe 
third country or to the first country of asylum was not met, and transit alone does not constitute a 
connection. In its judgment in Joined cases C-924/19 and C-925/19 FMS and Others22 of 2020, 

20  
21  

22  

ECLI:EU:C:2024:838.  
Case  C-564/18  LH  v  Bevándorlási  és  Menekültügyi  Hivatal, 
ECLI:EU:C:2020:218. 
Joined  cases  C-924/19  and  C-925/19,  FMS  and  Others  v  Országos  Idegenrendeszeti  Főigazgatóság  Dél-
alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság, judgment of 14 March 2020, 
ECLI:EU:C:2020:367. 

judgment  of  19  March  2020, 

8 

 
 
 
 
the CJEU reiterated that an automatic rejection of an asylum application based on transit through 
a safe third country, as provided by Hungarian legislation, is contrary to existing EU law.  

The non-binding nature of the connection criterion in international law leaves room for it to no 
longer be considered mandatory under the APR.  

(c) Individual assessment 

The  right  to  an  individual  assessment  of  whether  a  third  country  is  safe  for  each  applicant, 
considering  their  specific  personal  circumstances,  is  explicitly  guaranteed  in  EU  asylum  law  – 
specifically, Article 38(2)(c) of the APD and Article 59(5)(a) of the APR.  

This assessment must include an individual evaluation of the risk of refoulement by the STC to 
countries where the person may face a risk to life (including through death penalty) or be subjected 
to torture, inhuman or degrading treatment (including the risk of ‘chain’ refoulement). While Art. 
59(7) APR creates a presumption that the conditions for designating a third country as ‘safe’ are 
fulfilled for third countries with which the EU concludes an agreement pursuant to Article 218 
TFEU, the individual must be given the opportunity to rebut this presumption based on his/her 
specific circumstances.  

As regards international law, the guarantee of an individual assessment is explicitly recommended 
in the Council of Europe Council of Ministers’ 2009 Guidance on human rights in the context of 
accelerated procedures23. The 1951 Geneva Convention does not cover procedural aspects. 

The jurisprudence of the European Court of Human Rights (‘ECtHR’) on the right to individual 
assessment is extensive. In the landmark Ilias and Ahmed 2019 ruling24, the ECtHR stated that the 
applicant must be given the opportunity to demonstrate that the third country is not safe in his/her 
case (see also M.K. and Others v. Poland 202025, D.A. and Others v Poland 202126). Moreover, 
when a Contracting State seeks to remove an asylum-seeker to a third country without examining 
the asylum request on the merits, it is the duty of the removing State to thoroughly assess whether 
there is a real risk that the asylum-seeker will be denied access to an adequate asylum procedure 
in  the  receiving  third  country,  which  would  protect  him  or  her  against refoulement  (Ilias  and 
Ahmed v Hungary 2019,27 Sherov and Others v. Poland 202428).  

In  addition, Article  4  of  Protocol  No  4  to  the  ECHR  (prohibition  of  collective  expulsions)  is 
interpreted by the ECtHR as requiring state authorities to ensure that each of the aliens concerned 
has  a  genuine  and  effective  possibility  to  challenge  their  expulsion  (Hirsi  Jamaa  and  Others 

23  
24  
25  

26  
27  
28  

https://www.refworld.org/policy/legalguidance/coeministers/2009/en/69315  
Case of Ilias and Ahmed v. Hungary (Application no. 47287/15), judgment of 21 November 2019. 
Case of M.K. and Others v. Poland (Applications nos. 40503/17, 42902/17 and 43643/17), judgment of 14 
December 2020. 
Case of D.A. and Others v. Poland (Application no. 51246/17), judgment of 8 July 2021. 
Cited above. 
Case of Sherov and Others v. Poland (Applications nos. 54029/17 and 3 others), judgment of 4 April 2024. 

9 

 
 
 
2012,29 para. 177; Sharifi and Others,30 para.210; Khlaifia and Others,31 paras. 238 and 248, ND 
and NT v Spain,32 para. 198).  

While under the Geneva Convention the principle of refoulement allows for exceptions (on public 
security  or public order  grounds), in  human rights  law (including  the European Convention on 
Human Rights) the principle of non-refoulement is absolute, i.e., it allows for no exceptions. In 
relation to the Charter of Fundamental Rights of the EU, the CJEU has explicitly ruled that “Article 
4 and Article 19(2) […] prohibit in absolute terms torture and inhuman or degrading punishment 
or treatment irrespective of the conduct of the person concerned”33.  

While Article 59(7) of the APR allows Member States to establish a rebuttable presumption of 
‘safety’ for certain third countries “[w]here the Union and a third country have jointly come to an 
agreement  pursuant  to Article  218  TFEU  that  migrants  admitted  under  that  agreement  will  be 
protected in accordance with the relevant international standards and in full respect of the principle 
of non-refoulement”, it nevertheless remains necessary to conduct an individual assessment of the 
risk  of  refoulement  for  the  person(s)  in  question. Applicants  also  have  the  right  to  an  effective 
remedy against an inadmissibility decision based on the STC concept. A rebuttable presumption 
of ‘no risk of refoulement’ (whether direct or, especially, ‘chain’ refoulement) is difficult to justify, 
as  it  would  shift  the  burden  of  proof  to  rebut  the  presumption  to  the  applicant. This  would  be 
problematic both in the context of an appeal against the inadmissibility procedure itself and of an 
appeal  against  the  return  decision  taken  following  the  inadmissibility  decision,  insofar  as  the 
inadmissibility decision taken on the basis of the STC concept did not consider the merits of the 
application (i.e., the protection needs of the applicant), and therefore this is a situation that requires 
stronger due process guarantees given the nature of the human rights at stake34.  

It  is  important  to  recall  in  this  context  that  Member  States  must  conduct  an  individualised 
assessment  even  when  carrying  out  Dublin  transfers  within  the  EU  itself,  where  there  is  a 
presumption that all Member States are safe. Applicants also have the right to an effective remedy 

29  
30  
31  

32  
33  
34  

Case of Hirsi Jamaa and Others v. Italy (GC) 27765/09, judgment of 23 February 2012.  
Case of Sharifi and Others v. Greece (Application 16643/09), judgment of 21 October 2014. 
Case  of  Khlaifia  and  Others  v.  Italy (Application  (Application  no.  16483/12),  judgment  of  15  December 
2016.  
Case of N.T. and N.D. v. Spain (Applications nos. 8675/15 and 8697/15), judgment of 13 February 2020.  
Joined Cases C-391/16, C-77/17 and C-78/17, ECLI:EU:C:2019:403, para. 94.  
On burden of proof, see Ilias and Ahmed v Hungary 2019, cited above, at para. 141:  
“In  particular,  while  it  is  for  the  persons  seeking  asylum  to  rely  on  and  to  substantiate  their  individual 
circumstances that the national authorities cannot be aware of, those authorities must carry out of their own 
motion  an  up-to-date  assessment,  notably,  of  the  accessibility  and  functioning  of  the  receiving  country’s 
asylum system and the safeguards it affords in practice. The assessment must be conducted primarily with 
reference to the facts which were known to the national authorities at the time of expulsion, but it is the duty 
of those authorities to seek all relevant generally available information to that effect (Sharifi, cited above, §§ 
31 and 32). General deficiencies well documented in authoritative reports, notably of UNHCR, Council of 
Europe and EU bodies are in principle considered to have been known (see, M.S.S. v. Belgium and Greece, 
cited  above,  paras  346-50,  see  also,  mutatis  mutandis,  F.G.  v.  Sweden,  cited  above,  paras  125-27).  The 
expelling State cannot merely assume that the asylum seeker will be treated in the receiving third country in 
conformity with the Convention standards but, on the contrary, must first verify how the authorities of that 
country apply their legislation on asylum in practice (see M.S.S. v. Belgium and Greece, cited above, para. 
359). 

10 

 
 
against the Dublin transfer decisions, including for non-refoulement risk (i.e., the risk of a violation 
of  Article  4  of  the  Charter  of  Fundamental  Rights  of  the  EU,  which  prohibits  inhuman  and 
degrading treatment in the Member State to which the person is transferred). 

It appears that there is no scope for reviewing the rules on the individual assessment that must 
be carried out when applying the STC concept as these are requirements under international law 
and jurisprudence. 

(d) Effective remedy – including suspensive effect of the appeal 

In terms of the scope of the remedy against a decision applying the STC to an asylum-seeker in 
the context of an inadmissibility examination, both the APD and APR establish that an effective 
remedy involves a full and ex nunc review of both points of fact and of law (Article 46(3) APD, 
respectively Article 67(3) APR). This aligns with ECtHR jurisprudence, which also requires a full 
and ex nunc review of both points of fact and of law in cases where a possible breach of Art. 3 
ECHR is at stake (see e.g., K.I. v. France 202135.).  

It also aligns with Article 47 of the Charter of Fundamental Rights of the European Union, which 
guarantees the right to an effective remedy and to a fair trial. The Court of Justice of the European 
Union (CJEU) has developed a robust body of jurisprudence addressing the standards for effective 
judicial protection, including the need for remedies to have suspensive effect in cases of returns 
raising a risk of breaching the principle of  non-refoulement. These rulings further reinforce the 
obligation for national courts to conduct thorough, timely, and effective reviews of decisions that 
may impact fundamental rights36. 

As previously noted, the Geneva Convention does not regulate aspects of procedure; the standards 
stemming from the ECHR and the CJEU are the only benchmarks for assessing effective remedies. 
Article 52(3) of the EU Charter of Fundamental Rights establishes that for rights also conferred 
by the European Convention on Human Rights, the scope of protection shall be the same as that 
resulting  from  the  Convention,  including  the  jurisprudence  of  the  European  Court  of  Human 
Rights  (ECtHR).  The  Commission  services  have  further  examined  the  rules  on  the  automatic 
suspensive effect of the appeals against inadmissibility decisions. The Commission services are of 
the view that the scope of the remedy, as outlined, cannot and should not be revised.  

According  to  Article  68(1)  of  the  APR,  the  effects  of  a  return  decision  made  in  relation  to  an 
inadmissibility decision based on the STC concept shall be automatically suspended for as long as 
an applicant has a right to remain  pending exercise of the right to an effective remedy. Article 
68(3)  lists  exceptions  to  this  automatic  suspension  (without  prejudice  to  the  principle  of  non-
refoulement),  including  for  various  types  of  inadmissibility  decisions;  however,  inadmissibility 
decisions based on the STC concept are not included. Where such exceptions apply, this means 

35  
36  

Case K.I. and Others v. France (application no. 5560/19), judgment of 15 April 2021. 
See cases: Case C‑564/18, L.H. v. Bevándorlási és Menekültügyi Hivatal, ECLI:EU:C:2021:218, judgment 
of 25 March 2021; Case C‑181/16, Gnandi v. Belgium, ECLI:EU:C:2018:465, judgment of 19 June 2018; 
Case C‑562/13, Abdida v. Belgium, ECLI:EU:C:2014:2453, judgment of 18 December 2014.; Joined Cases 
C‑924/19  PPU  and  C‑925/19  PPU,  FMS  and  Others  v.  Országos  Idegenrendészeti  Főigazgatóság, 
ECLI:EU:C:2020:367, judgment of 14 May 2020. 

11 

 
  
 
 
that, in practice, the suspension of the effects of the return is not automatic but may, of course, be 
requested from the court. The issue analysed in this context is whether there is scope for including 
inadmissibility  decisions  based  on  the  STC  concept  among  the  exceptions  to  the  automatic 
suspensive effect of the appeal.  

The  question  of  whether  an  appeal  against  the  application  of  the  STC  concept  has  automatic 
suspensive effect is particularly important in cases of inadmissibility decisions based on the STC 
concept,  where  the  application  is  not  examined  on  its  merits,  and  in  view  of  the  nature  of 
fundamental rights  at  risk, and  particularly  the risk of  refoulement. Nevertheless,  rendering  the 
suspensive effect of the appeal against the inadmissibility decision  non-automatic could reduce 
procedural rigidity by allowing individuals to be removed from the EU territory while their appeal 
is  pending.  It  could  help  reduce  procedural  delays  in  applying  the  STC  concept  and  prevent 
potential abuses of appeal opportunities by the applicants, while still ensuring the protection of the 
applicant’s fundamental rights, by allowing them to request the suspensive effect.  

A  distinction  should  be  made  between  the  suspensive  effect  of  the  appeal  against  the 
inadmissibility decision itself, and the suspensive effect of the appeal against the decision to return 
the applicant to the STC that is adopted as per the requirement in Article 37 APR in relation to the 
inadmissibility  decision,  ,  which  ensures  protection  against  refoulement. This  should  guarantee 
that the persons shall not be transferred where there is a risk of refoulement in the third country, or 
where there is a risk of serious harm, or inhuman or degrading treatment, in the third country. It is 
important  to  note,  therefore,  that  applicants  can  still  request  the  right  to  remain,  and  courts  or 
tribunals could also address these matters ex officio under national law. 

ECtHR case law requires that the suspensive effect must be automatic for the return decision if 
there  is  an Article  3  ECHR  claim  (see  e.g.,  MK  and  Others  v  Poland  2020,37  Gebremedhin 
[Gaberamadhien] c. France 2007,38 Hirsi Jamaa 201239). There is, however, no similar explicit 
requirement  when  it  comes  to  the  suspensive  effect  of  the  appeal  against  the  inadmissibility 
decision based on the STC concept. 

There  is  scope  for  rendering  the  suspensive  effect  of  the  appeal  against  the  inadmissibility 
decision based on the STC concept non-automatic, although an automatic suspensive effect 
must  be  maintained  for  the  related  return  decision  insofar  as  there  is  a  claim  of  risk  of 
refoulement under Art. 3 ECHR / Article 4 of the EU Charter. 

4.  Elements for review and position of stakeholders 

As a result of the legal analysis in the previous section, there is scope to review the STC concept 
in relation to:  

(a) 

the connection criterion; and 

37  
38  
39  

Cited above. 
Gebremedhin [Gaberamadhien] v. France (Application 25389/05), judgment of 26 April 2007.  
Cited above. 

12 

 
  
 
the  suspensive  effect  of  the  appeal  against  decisions  rejecting  an  application  as 

(b) 
inadmissible on the STC ground. 

The  Commission  services  have  identified  and  assessed  three  alternatives  for  revising  the 
connection criterion in the context of the APR: 

1)  Removal of the connection criterion as a mandatory requirement under EU law  

Since the connection criterion is not explicitly required under international law, one  alternative 
considered was to remove it from EU law, thus allowing Member States, when applying the STC 
concept, the possibility to choose whether to apply the connection criterion and how to define it in 
their national law.  

2)   Considering transit as a sufficient criterion 

A second alternative, which was part of the Commission’s 2016 APR proposal, was to consider 
transit as a sufficient criterion to apply the STC concept to the individual.  

3)  Defining the connection criterion in the APR but making it more flexible (which would also 

include transit) 

A  third  alternative  would  be  to  define  ‘connection’  under  EU  law  to  consider  cultural  ties  or 
knowledge of the language, in addition to transit, as sufficient links. 

In relation to the suspensive effect of the appeals against the application of the STC concept, the 
Commission  services  has  considered  the  possibility  of  rendering  the  suspensive  effect  of  the 
appeals against the inadmissibility decision non-automatic.  

The Commission consulted Member States, the European Parliament, UNHCR and civil society 
stakeholders on the above proposals and alternatives. The consultations took place from December 
2024 to February 2025.  

(a) Consultation with the Member States 

The Commission consulted Member States on 27 January 2025 and 27 February 2025. A large 
group of the Member States that responded to the consultation supported deleting the requirement 
to apply the connection criterion, and removing the automatic suspensive effect of appeals against 
the inadmissibility decisions.  

Among the possible advantages of not having to demonstrate the existence of a connection to the 
third country, Member States pointed to potential efficiency gains in the asylum procedure, arguing 
that  eliminating  the  connection  criterion  would  streamline  application  processing,  reduce 
administrative burdens on national authorities (as there will be no burden to prove connection), 
and accelerate decision-making. In this sense, this  group of Member States  considered that the 
alternatives – i.e., considering transit as sufficient, or allowing for more flexibility in the definition 
of connection – would lead to new legal debates on the burden of proof and ultimately increase 
the administrative burden in the application of the concept. 

13 

 
Some Member States also mentioned that the deletion of the connection criterion would give them 
more flexibility to conclude agreements with third countries (when applying Article 59(7) APR) 
and would widen the pool of third countries that could become partners in the implementation of 
the STC concept, while one Member State signalled that a more flexible application of the STC 
concept would allow Member States to address situations of disproportionate migratory pressure 
and crises more effectively. They also see the facilitation of the application of the STC concept as 
a possibility to widen the protection space globally.  

In  terms  of  possible  disadvantages  and  risks,  some  Member  States  mentioned  that  the  lack  of 
connection may hinder integration of the transferred applicants in the STC, notably if the receiving 
third country does not provide effective access to a procedure for requesting effective protection. 
Some  also  noted  that,  in  the  absence  of  a  functioning  partnership,  third  countries  that  are  not 
connected  to  the  applicant  might  be  less  prone  to  cooperate,  and  there  are  risks  of  more  court 
challenges to the application of the STC concept, including due to poor living conditions in the 
STC. Furthermore, since not requiring the existence of a connection criterion would facilitate the 
application of the STC concept, it may increase the risk of secondary movements within the EU 
towards Member States where the STC concept is not applied or is applied with the connection 
requirement.  

Some Member States also argued that rendering optional the application of the connection criterion 
would lead to further divergences in the way in which the concept is applied across the EU. This 
may also negatively affect the functioning of the Dublin system, to the extent that national courts 
may suspend Dublin transfers to Member States where the applicants face an application of the 
STC concept without requiring a connection, or where courts consider that the concept is applied 
‘too leniently’ or in an incorrect way. The Member States opposed to lifting the mandatory nature 
of the connection criterion in EU law supported defining the connection criterion in a more flexible 
way, which could increase the pool of safe third countries. 

As  regards  removing  the  automatic  suspensive  effect  of  appeals  against  the  inadmissibility 
decision based on the STC concept, the majority of Member States supported the option of non-
automatic suspensive effect, pointing out the following potential advantages: 

- 
- 
- 

- 

it may reduce procedural delays; 
it is more in line with the short duration of accelerated and border procedures;  
it  may  reduce  the  financial  burden  of  offering  reception  conditions  to  the  applicants 
pending the examinations of their protection claims;  
it may prevent the abuse of appeal opportunities by the applicants, and may help reduce 
the risk of absconding and secondary movements within the EU. 

In terms of possible disadvantages, some Member States consider that this proposal could increase 
the workload of appeal courts and lead to less thorough judicial reviews.  

A  further  consultation  with  Member  States  took  place  on  27  February  2025,  during  which  the 
Commission informed them about the results of the consultations with the European Parliament, 
UNHCR and other stakeholders. This included an overview of the advantages and disadvantages 
identified for each alternative, as well as possible measures that could be foreseen to mitigate some 

14 

 
of the risks. While  Member States  reiterated their  initial  positions (a majority  in  favour of and 
some opposed to the deletion of the connection criterion), they indicated that mitigating measures 
could be considered reasonable to address some of the main disadvantages identified.  

Against this background, some Member States raised in different fora the issue of an increased 
risk of absconding if the connection condition for the application of the STC concept were to be 
eliminated,  and  proposed  solutions  to  address  this  risk.  They  supported  the  introduction  of 
dedicated measures, or at least conducting an in-depth analysis by the Commission on how to best 
prevent  absconding during the admissibility procedure  for implementing the STC concept. The 
possible solutions supported so far by few Member States included possible amendments to Article 
10(4) of the Reception Conditions Directive (RCD) (2024/1346), providing an additional ground 
for detention, or adding a rebuttable presumption of a risk of absconding. Moreover, one Member 
State proposed to include a recital in the APR, stipulating that an inadmissibility decision issued 
on  the  basis  of  the  STC  concept  may  be  a  ground  for  measures  restricting  the  freedom  of 
movement. 

(b) Consultation with the European Parliament 

During the discussion at the Working Group on Asylum - Implementation of the Pact/Common 
European Asylum System of the European Parliament on 19 February 2025, the views of the 
political groups were divided on the scope for revision.  

Some political groups supported deleting the requirement to apply the connection criterion and 
removing the automatic suspensive effect of appeals, arguing that these changes would improve 
efficiency and curb secondary movements. Some groups called for additional measures to address 
the risks of absconding and secondary movements, advocating for a strong focus on security. Other 
groups opposed both proposals, stressing the importance of safeguarding the individual’s right to 
asylum  in  the  EU,  and  the  need  for  alignment  with  UNHCR  guidance  to  ensure  long-term 
sustainability of the transfers. Some warned that the lack of a connection criterion could hinder 
integration in the receiving third country, increase secondary movements, and leave individuals 
transferred to the third country without meaningful ties or guarantees of effective protection.  

There were also concerns that removing the requirement to apply the connection criterion could 
lead to increased litigation, judicial interventions and other administrative burdens. Concerns were 
raised over potential refoulement risks if the suspensive effect of the appeal were removed. It was 
also argued that the focus should remain on implementing the Pact, rather than introducing changes 
that  could  disrupt  its  carefully  negotiated  balance.  While  acknowledging  the  Commission’s 
mandate to conduct a review of the STC concept,  some observed that this does not necessarily 
require also revising the legislation.  

Some  parliamentary  groups  also  acknowledged  that  any  changes  to  the  STC  concept  must  be 
accompanied  by  strong  cooperation  agreements  with  third  countries.  However,  there  were  also 
warnings against designating countries as  ‘safe’ based exclusively on diplomatic agreements or 
political  interests.  Such  agreements  should  not  only  focus  on  readmission  and  returns  but  also 
ensure improved conditions for individuals.  

15 

 
(c)  Consultation with UNHCR 

In exchanges related to the review of the STC concept, UNHCR, while acknowledging that the 
connection  criterion  is  not  mandatory  under  international  law,  reiterated  that  it  views  the  STC 
concept as an optional tool and expressed strong concerns about the deletion of the connection 
criterion. It warned of risks relating to long-term sustainability of the transfers leading to possible 
movements back towards the EU. UNHCR noted that the current APR falls short of ensuring an 
access to an examination of the merits of the applications of those persons transferred to a third 
country. UNHCR considered that, in the absence of such a guarantee, persons transferred based on 
the STC concept risk remaining in a situation of uncertainty due to the risk of subsequent rejections 
without  proper  assessment  of  protection  claims,  resulting  from  a  chain  application  of  the  STC 
concept. It also cautioned about possible negative effects on third countries’ willingness to develop 
protection systems. 

UNHCR also stressed that, if the connection criterion were removed, additional safeguards would 
be  essential  to  ensure  the  protection  of  individuals.  It  suggested  that  these  safeguards  might 
include: guarantees of access to a full examination of the merits through a fair and efficient asylum 
procedure in the third country; effective non-refoulement safeguards; guarantees on the right to 
effective appeal; guarantees of adequate age-sensitive and gender-sensitive reception conditions 
in the third country; and a pre-transfer individual assessment, particularly for vulnerable groups, 
for whom the connection criterion should be retained.  

On the automatic suspensive effect  of  appeals,  UNHCR raised concerns that  its  removal could 
increase detention risks for individuals with pending appeals. It also recalled that, under the case-
law of the European Court of Human Rights, an appeal based on an arguable claim of Article 3 
ECHR violation must have automatic suspensive effect to be considered effective. UNHCR also 
proposed the creation of an independent EU advisory body to assess STC designations, enhancing 
monitoring and impartiality. 

For  UNHCR,  the  mere  possibility  of  requesting  suspensive  effect  is  insufficient  to  ensure  the 
applicant’s right to an effective remedy, especially in light of the irreversible nature of the harm 
that might occur. UNCHR considers that, if the appeal of the return decision has suspensive effect, 
but the appeal of the inadmissibility decision does not, this could allow for the potential return of 
someone who makes a legal error by appealing the substantive decision but not the return decision. 
This could then lead to the transfer of someone who is at risk.  

UNHCR also  highlighted that, even where  a removal measure is  automatically suspended, this 
does  not  necessarily  ensure  an  effective  remedy  against  the  asylum  rejection  in  all  cases. This 
could  particularly  be  true when the authorities responsible for hearing the asylum and removal 
order appeals are different, resulting in the absence of a joint appeal. In such cases, situations may 
arise where the return appeal is rejected – thus ending the suspensive effect - and the applicant is 
removed, while the STC appeal is still pending. Since the scope of those two appeals differs – one 
concerns  whether  all  the  criteria  set  out  in Article  59  of  the APR  are  fulfilled,  and  the  other 
concerns obstacles to removal, such as non-refoulement (i.e., a lower standard) – there can be a 
significant  practical  difference.  In  UNHCR’s  view,  the  fact  that  (potentially  different)  return 

16 

 
authorities  decide  whether  removal  can  proceed  is  not  an  adequate  substitute  for  the  lack  of 
automatic suspensive effect of appeals against STC rejections. 

UNHCR also raised concerns that are not linked to the proposed revisions but more generally to 
other aspects of the application of the STC concept. It reiterated its reservations regarding the use 
of only diplomatic assurances from STCs, as opposed to having bilateral agreements with the STC 
regarding  the  treatment  of  the  transferred  persons,  emphasising  that  both  the  content  and  the 
possibility  to  implement  the  arrangements/agreements  matter.  It  advocated  for  clear  legal 
obligations  (formal  agreements  between  States  on  the  transfers  of  asylum  seekers),  monitoring 
mechanisms, and enforceable commitments from the STC that can be challenged in a court of law.  

Additionally,  UNHCR  called  for  ensuring  family  reunion  with  family  members  within  the  EU 
before  considering  STC  transfers  It  also  stressed  the  importance  of  carefully  assessing  safety 
guarantees  for  individuals  in  a  third  country  considered  ‘safe’  in  general,  to  avoid  relying 
exclusively on diplomatic assurances from the third country. 

(d) Consultation with the civil society organisations 

At the meeting with Commission services held on 19 February 2025, all participating civil society 
organisations (‘CSOs’) expressed their opposition to the deletion or amendment of the connection 
criterion, as well as to the lifting of the automatic nature of the suspensive effect of appeals.  

CSOs also observed that the purpose of the STC concept is to promote burden sharing, and not 
burden  shifting,  with  third  countries.  CSOs  also  flagged  concerns  regarding  the  feasibility  of 
concluding  agreements/arrangements  with  third  countries  that  satisfy  the  conditions  for  being 
considered safe, and the ‘chilling effect’ that a massive application of the STC concept might have 
for the third countries, including in terms of reducing incentives to develop their own protection 
systems (because not satisfying the condition of having effective protection systems would avoid 
them being approached for the application of the STC concept).  

CSOs  highlighted  the  central  importance  of  the  connection  criterion  to  act  as  an  additional 
safeguard to mitigate negative impacts on applicants where due process may not be guaranteed in 
a STC. They noted that the less connection an applicant has to a country, the less likely it is that 
admission to that country and access to effective protection will be possible. CSOs pointed out that 
the removal of the connection criterion would have a negative impact in terms of legal certainty 
and predictability, which in turn may also lead to an increase in secondary migration, absconding, 
or the possibility of arbitrary detention of applicants in third countries.  

CSOs questioned the need to amend the concept prior to the implementation of the Pact, which 
already introduced new provisions in relation to the STC concept.  

CSOs also highlighted various safeguards that would be required if the connection criterion were 
to be amended or deleted. Some CSOs shared their concerns in relation to how the removal of the 
connection  criterion  would  impact  vulnerable  applicants,  and  indicated  that  as  a  minimum,  
connection should remain a mandatory criterion for vulnerable applicants.  

17 

 
On a more general level, and not directly linked to the revision proposals, CSOs remain sceptical 
to the application of the STC concept both in principle and in practice, and reiterated their view 
that  the  protections  under  the  APR  already  fall  short  of  those  required  under  the  Geneva 
Convention. They also voiced concerns regarding the funding costs involved in such agreements, 
particularly in relation to the potential diversion of funding intended for the implementation of the 
Pact to STC schemes.  

CSOs also mentioned the need to follow UNHCR guidelines that require an agreement between 
the Member State and the third country concerned – agreement that is legally binding, and grants 
rights  and obligations to applicants  that can be defended in  a court of law, as well as effective 
access to asylum determination procedures (i.e., examination of the merits) in practice in the third 
country  concerned,  and  not  solely  based  on  diplomatic  assurances.  This  is  key  particularly 
considering the discrepancy between protections provided in law and in practice. The need to use 
a strong independent monitoring system, which may include civil society, was also emphasised. 
This  would  need  to  be  linked  to  accountability  measures,  whereby  some  recourse  would  be 
available if monitoring reveals that access to effective protection is not possible in practice. The 
need for Member States to rely on the European Union Agency for Asylum (EUAA) country-of-
origin information, which is updated on a regular basis, was also stressed.  

5.  Assessment of the alternatives for review and conclusions 

As  explained  in  section  3,  the  Commission  services  examined  the  scope  for  simplifying  the 
requirements under international law, in particular the 1951 Geneva Refugee Convention, the 1950 
European  Convention  on  Human  Rights,  and  the  EU  Charter  of  Fundamental  Rights.  The 
conclusion  is  that  there  is  no  scope  for  reviewing  the  safety  conditions  for  designating  a  third 
country as safe, as these are aligned with international law. There is also no scope for simplifying 
the requirement for conducting  an individual assessment  or the rules on remedies, as  these are 
required under EU and international law and jurisprudence. There is, however, scope for revising 
the mandatory nature of the connection criterion, insofar as not required by international law, and 
for lifting the automatic nature of the suspensive effect of appeals against inadmissibility decisions. 
The appeal against the related return decision will continue to have automatic suspensive effect 
insofar as the risk of refoulement is at stake.  

Based  on  a  careful  and  thorough  analysis  of  the  alternatives  identified  for  revising  the  STC 
concept, the advantages and disadvantages of each alternative, and the risks identified by various 
stakeholders,  a  combination  of  measures  is  most  likely  to  achieve  the  desired  flexibility  and 
facilitate  the  application  of  the  STC  concept  by  Member  States,  while  maintaining  essential 
safeguards, preserving fundamental rights and addressing the main risks identified by stakeholders. 

Proposal for the revision of the connection criterion 
for the application of the STC concept in the APR 

When applying the STC concept, Member States will have three alternative options: 

1)  To apply the STC concept where there is a connection, as defined in national law, in 

line with CJEU case law and international standards; or 

18 

 
2)  To apply the STC concept considering transit as a sufficient link; or 
3)  To apply the STC concept without the need to demonstrate the existence of a 

connection or transit, on the basis of an agreement or arrangement with a third country 
requiring the examination on the merits of the requests for effective protection made by 
applicants subject to that agreement or arrangement. This option would not apply to 
unaccompanied minors.  

The  proposal  introduces  a  transparency  clause  requiring  Member  States  to  inform  the 
Commission and other Member States prior to concluding agreements or arrangements with safe 
third countries.  

The suspensive effect of appeals against inadmissibility decisions based on the STC concept can 
be  made  non-automatic  (i.e.,  the  suspensive  effect  may  nevertheless  be  requested  in  court). 
However, appeals  against the return decision taken as per Article 37  APR, in  relation  to  the 
inadmissibility  decisions  issued  in  application  of  the  STC  concept,  will  continue  to  have  an 
automatic suspensive effect when risks of inhuman or degrading treatment are invoked under 
Article 4 EU Charter. 

(a) Revision of the connection criterion 

The Commission services took note of the fact that a majority of Member States are in favour of 
eliminating the  requirement  of the connection criterion  in  EU law  for the reasons explained in 
section 4, but also of some Member States remaining opposed to the deletion of connection and of 
concerns raised by various stakeholders’ groups.  

The Commission services examined the arguments in favour and against the option to consider 
that connection should no longer be a mandatory requirement under EU law, and decided to retain 
connection as an optional criterion. However,  Member States  should  be able  to  apply  the STC 
concept even when a connection cannot be established, for example when the person has transited 
through a safe third country, or when no other links can be established at all. Yet, in such cases it 
becomes important to introduce measures that address some of the concerns raised. 

The Commission proposes that, in the absence of connection or transit, the STC concept should 
only be applied on the basis of an agreement or arrangement with the third country, meaning that 
applicants would be able to have access to a procedure in safe third countries and receive effective 
protection if justified, without prejudice to the third country deciding whether the person satisfies 
the conditions for obtaining such protection.  

The existence of a connection or of previous transit, which provides an objective link to the safe 
third  country  and  was  included  in  the  2016  Commission  proposal  for  an  Asylum  Procedure 
Regulation40,  will  be  mandatory  when  the  STC  is  applied  to  unaccompanied  minors.  This 
requirement reduces their exposure to inadequate protection and social isolation. Unaccompanied 
minors are in a situation of vulnerability and need additional support when the STC concept is 

40  

Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure 
for  international  protection  in  the  Union  and  repealing  Directive  2013/32/EU,  COM/2016/0467  final  - 
2016/0224 (COD). 

19 

 
 
applied to them. This is acknowledged by the provisions of Article 59(6) of the APR, requiring 
that a third country may only be considered to be safe for an unaccompanied minor where it is not 
contrary to the best interests of the child and where there are assurances that the third countries’ 
authorities will take charge of the unaccompanied minor and provide immediate access to effective 
protection. 

The Pact on Migration and Asylum establishes a more integrated common European system, in 
which  decisions  taken  by  one  Member  State  impact  on  other  Member  States. The  asylum  and 
migration  system  of  the  Pact  is  based  on  trust  and  includes  various  instruments  to  ensure 
transparency (e.g., monitoring of screening and border procedure, EUAA monitoring mechanism) 
that should also apply to the STC concept. For this reason, the proposal introduces a transparency 
clause  requiring  Member  States  to  inform  the  Commission  and  other  Member  States  prior  to 
concluding agreements or arrangements with safe third countries. This would also help Member 
States  and  the  Commission  to  better  coordinate  their  efforts  towards  third  countries  for  the 
conclusion of agreements or arrangements and support the comprehensive approach in the external 
dimension  of  migration.  The  Commission  would  also  be  able  to  monitor  that  agreements  or 
arrangements with third countries meets the conditions set by the APR.  

Finally,  concerning  risks  associated  with  potential  absconding  within  the  EU  in  relation  to  the 
application  of  the  STC  concept,  the  Commission  services  consider  that  such  concerns  can  be 
adequately addressed by using the possibilities of restricting freedom of movement pursuant to 
Article 9 of Directive (EU) 2024/1346, or by detaining the applicant concerned in accordance with 
Article 10 thereof, pending the assessment of the admissibility of the application. In this regard, it 
is  possible  to  consider  there  is  a  risk  of  absconding  when  applying  the  concept,  provided  the 
definition of absconding in national law includes such circumstance. 

The Commission services examined the arguments in favour and against the option to consider 
also  transit, and on balance decided to  retain it,  to  further facilitate the  application of the STC 
concept. Considering transit as sufficient criterion, in theory, facilitates the practical application of 
the  STC  concept,  while  maintaining  safeguards  for  applicants.  As  some  stakeholders  noted, 
considering that transit is a sufficient link could increase the list of potential STCs. It could also 
provide more legal certainty in terms of interpretation of the concept by the courts. Transit, as an 
objective  link  to  the  safe  third  country,  maintains  the  underlying  rationale  of  the  connection 
criterion - namely that it would be reasonable for the applicant to go to a country where she or he 
could have applied for protection.  

To address potential operational challenges, particularly the eventual burden of proving transit, a 
solution that was considered is the possibility to introduce and use a presumption of transit. For 
instance, it could be presumed that an individual arriving irregularly in the EU territory who is 
unable  to  demonstrate  a  direct  route  of  arrival,  must  have  transited  through  at  least  one  third 
country – unless they are a national of a neighbouring country. However, the presumption being 
rebuttable, the likelihood is that it would be litigated frequently, and this factors against the desired 
simplification of the application of the STC concept. For this reason, the possibility of introducing 
this presumption was discarded. 

20 

 
The Commission services examined the arguments in favour and against the option to expand the 
definition of connection in EU law, and on balance decided to discard it.  

Some stakeholders had noted that this alternative could increase the list of potential STCs, as it 
goes  beyond  third  countries  traditionally  on  the  migratory  routes  to  the  EU,  while  facilitating 
cooperation with the third country concerned. Others had noted that it could provide more legal 
certainty in terms of interpretation of the concept by the courts, while maintaining the rationale for 
the connection criterion. In turn, this could lead to a higher number of positive court decisions 
confirming the application of the STC concept and eventually to less litigation. Some mentioned 
that  it  would  facilitate  the  integration  of  the  applicant  once  transferred,  and  thereby  the 
sustainability of the transfer.  

However, several stakeholders noted that the same risks associated with the burden of proof relying 
on the authorities that were identified in relation to the transit alternative would persist in this case, 
because the applicants will not be likely to disclose voluntarily information about the existence of 
such  links.  The  alternative  is  therefore  not  considered  as  bringing  about  the  desired  effect  of 
simplifying the application of the STC concept. Furthermore, it would no longer be necessary, as 
the connection criterion is retained as optional, and the use of transit is also possible.  

(b) Suspensive effect of the appeal against the inadmissibility decision 

The Commission services have also concluded that, in order to enhance procedural efficiency in 
the  application  of  the  STC  concept,  the  suspensive  effect  of  appeals  against  inadmissibility 
decisions should not be automatic, except for related return decisions where there is a potential 
violation of Article 4 of Protocol 4 to the EU Charter (i.e., Article 3 of the European Convention 
of Human Rights). 

In terms of the risks associated with this proposal, the Commission services acknowledged that 
the question of whether an appeal has suspensive effect on the removal of the applicant to a third 
country is particularly important in cases of inadmissibility decisions based on the STC concept, 
where the application is not examined on its merits. The nature of the human rights at risk, and 
particularly the risk of refoulement, makes the guarantee of the suspensive effect of appeal in the 
APR crucial. These risks were flagged during the consultation by some Member States, UNHCR, 
and civil society. 

It  is,  however,  noted  that  the  suspensive  effect  of  the  appeal  remains  mandatory  for  the  return 
decision taken in relation to the inadmissibility decision, as per Article 37 APR, and as confirmed 
in  the  Commission’s  recent  proposal  for  a  Return  Regulation41,  when  refoulement  risks  are 
invoked. This should ensure that individuals are not transferred if there is a risk of refoulement in 
the third country, or if there is a risk of serious harm, or inhuman or degrading treatment in the 
third country.  

41 

Proposal for a Regulation of the European Parliament and of the Council establishing a common system for 
the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of 
the European Parliament and the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC, 
COM/2025/101 final. 

21 

 
 
On the other hand, several Member States and stakeholders highlighted the potential benefits of 
removing  the  automatic  suspensive  effect  of  appeals.  They  noted  that  this  measure  could  help 
reduce  procedural  delays  in  applying  the  STC  concept,  ensuring  greater  efficiency,  while 
remaining consistent with the short duration of accelerated and border procedures. Additionally, 
some stakeholders consider that it could help prevent the potential abuse of appeal opportunities 
by the applicants, and help reduce the risks of absconding and secondary movements related to the 
application of the STC concept.  

22 

 
 
EU Member 
State 

STC concept 
applied? 

Austria  

Belgium  

Bulgaria  

Cyprus  

Annex 

Application Method 

Case-by-case 

Case-by-case 

List: Bangladesh, Iran, Türkiye  

Case-by-case 

Czech Republic  

Included in national legislation but not applied in practice 

Denmark  

Estonia  

Finland  

France  

Germany  

Greece 

Croatia  

Hungary  

Ireland  

Italy  

Latvia  

Lithuania  

Luxembourg 

Malta  

Netherlands 

Poland  

Portugal  

Romania  

Case-by-case 

List: Albania, Armenia (except Nagorno-Karabakh), Bosnia and 
Herzegovina (except Republika Srpska), Georgia (except Abkhazia and 
South Ossetia), Kosovo, Montenegro, North Macedonia, Serbia 
Case-by-case 

Not included in national legislation, STC concept not allowed by 
Constitution 

List: EU Member States, Norway, Switzerland 

List: Albania, North Macedonia, Türkiye (for applicants originating from 
Syria, Afghanistan, Pakistan, Bangladesh and Somalia) ** 

** NB: The Greek Council of State on 21/03/2025 annulled the joint 
ministerial decisions characterising Türkiye as a STC for the above listed 
applicants. 
Case-by-case 

List: Albania, Australia, Bosnia and Herzegovina, Canada, EU countries, 
Iceland, Kosovo, Liechtenstein, Montenegro, New Zealand, North 
Macedonia, Norway, Serbia, Switzerland, Türkiye, USA (states that do 
not apply the death penalty) 
Case-by-case and list: UK and Northern Ireland 

Not included in national legislation 

Case-by-case 

Case-by-case 

Case-by-case 

Case-by-case 

Case-by-case 

Not included in national legislation 

Included in national legislation but not applied in practice 

Included in national legislation but not applied in practice 

23 

 
     
     
          
     
     
 
     
          
     
    
  
          
          
 
     
          
     
     
 
     
     
     
     
     
     
 
     
 
     
 
Slovakia  

Slovenia  

Spain  

Sweden  

Included in national legislation but not applied in practice 

Included in national legislation but not applied in practice 

Included in national legislation but not applied in practice 

Case-by-case 

Source: compiled by the Commission services based on information available in the EUAA: Who 
is Who  - Who  is Who  in  International  Protection  in  the  EU+:  Countries Applying  the  Concept  of  Safe 
Countries in the Asylum Procedure 

24