Netherlands – Council of State Advocate General’s opinion on ‘Safe Country’ concept in asylum cases

Friday, July 22, 2016

On 20 July 2016, the Advocate General of the Council of State published his opinion regarding the concept of ‘Safe Country’ in asylum cases.

The case concerned the appeal of two Albanian nationals against the rejection of their application for temporary asylum residence permits. The applicants argued that they would suffer problems in Albania based on their homosexual orientation. The State Secretary of Security and Justice rejected their application based on the Safe Country of Origin concept. The Court of First Instance agreed and dismissed the applicant’s appeal. The applicant appealed before the Council of State.
According to the Advocate General, a country cannot be considered a Safe Country if:

  • a systemic risk of persecution or inhuman and degrading treatment of certain minority groups, such as LGBTI, exists there; and
  • the security situation is fluid or certain parts of the country are unsafe, unless only a significantly small segment of the country is unsafe/insecure.
A country can nevertheless be considered a Safe Country if the State Secretary:
  • provides for an exception clause for minority groups, such as LGBT; and
  • creates a geographical restriction for the unsafe part of the country, if a clear demarcation can be made between the safe and unsafe parts.

Regarding the burden of proof, the State Secretary must investigate to what extent the country can in general be considered safe (‘general burden of proof’). The applicant will then have to demonstrate that in his or her circumstances the country cannot be regarded safe (‘specific burden of proof’). 
Based on an unofficial translation by the ELENA Weekly Legal Update.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Actor of persecution or serious harm
Armed conflict
Internal armed conflict
Persecution (acts of)
Safe country of origin
Safe third country
Vulnerable person