The interveners submit that a return that exposes applicants to the risk of refoulement, and deprives them of rights guaranteed by international law, including full access to rights under the Refugee Convention (Articles 2 – 34) and procedural guarantees violates Contracting States’ international obligations regardless of whether the third country is listed as a ‘safe third country’.
The interveners submit that an EU Charter compliant interpretation of the STC concept under EU law requires that guarantees must be provided in each individual case that the applicant will be treated in accordance with the following principles in the safe third country concerned: (1) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (2) there is no risk of serious harm as defined in Directive 2011/95/EU, (3) the principle of non-refoulement in accordance with the Refugee Convention and international human rights law is respected; (4) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention, meaning ratification and observance in practice of the 1951 Convention and the 1967 Protocol, and (5) there is access to effective remedy within the meaning of Article 47 CFR.
(...)
In light of the obligations of EU Member States under EU law, including the recast Reception Conditions Directive, and Article 53 ECHR, the interveners submit that detention of asylum seekers falling within the scope of that Directive will be unlawful and arbitrary where it fails to make clear and accessible legislative provision for the permissible grounds of detention, or for procedural protections for detainees, including judicial review and access to legal advice. Detention will be arbitrary where it is not a measure of last resort, but is imposed without consideration of less onerous alternative measures.