M.H. v. Serbia (Application no. 62410/17) Third Party Intervention : The AIRE Centre, DCR and ECRE

  1. The interveners submit that in light of well-established principles of international law and this Court’s settled case law, a removal that exposes an applicant to the risk of refoulement and deprives them of protections under international law is prohibited regardless of whether the decision was taken on the basis of the Safe Third Country (STC) concept or the country was included in a STC list by the removing Contracting Party.
  2. Rigorous scrutiny of whether the country of removal can be considered a safe third country in light of laws, systems and practices must entail (i) analysis of up-to-date reports of international and civil society organisations operating in that country and (ii) an assessment of the country's ability to provide procedural and reception guarantees to asylum-seekers so that they can benefit from international protection there. There must be a detailed and individualised assessment of whether the country will be safe for those whose removal is contemplated and of any additional vulnerability that applies to them.
  3. Application of the safe third country concept is contingent on the applicant being admitted to the territory, having effective access to a fair asylum procedure in the safe third country as well as access to the rights under Articles 2–34 of the Refugee Convention, where the applicant is entitled to those rights. The applicant must also have an effective opportunity to rebut the presumption of safety in his or her individual circumstances, access to an effective remedy with automatic suspensive effect and access to free legal assistance and representation. Should the removing State wish to rely on diplomatic assurances from the country to which removal is proposed before sending the applicant there, these should be precise, individualised and subject to the guarantees stipulated in this Court’s case law.


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