Is there such a thing in International refugee law as “first country of asylum” and “safe third country” concepts?
Yes and no – and that depends a lot on the interpretation of what is meant by “international refugee law”. Both of these concepts – “first country of asylum” and “safe third country” are enshrined in EU refugee law but are not a part of the 1951 Convention or regional instruments such as the OAU convention or the Cartagena Declaration. Under International Refugee Law, there is no obligation to seek asylum at the first effective opportunity, and States retain their legal responsibility if they have effective control of persons or territory.
In our examples, we will frequently discuss situations in which a refugee from country A has passed through country B and is claiming asylum in country C.
What does the 1951 Convention say?
The 1951 Convention doesn’t have a provision about country of transit, safe third country, or first country of asylum. The 1951 Convention Relating to the Status of Refugees is very specific about who is and who is not a refugee, including people who would ordinarily be refugees (i.e. having fled persecution) but for whatever reason should not be considered refugees. The 1969 OAU Convention mirrors the 1951 Convention in this respect, although provides a wider definition of who should ordinarily be considered a refugee.
The Convention enumerates a number of conditions whereby refugee status would cease to exist (Article 1(c)): voluntarily re-availaing oneself of the protection of one’s nationality; re-acquiring nationality after having lost it; acquiring a new nationality that offers protection; voluntarily re-establishing oneself in the country of persecution; or if the circumstances which precipitated flight no longer exist. Article 1(D) indicates that those under the mandate of a different UN organization (i.e. UNRWA for Palestine refugees) are not under UNHCR’s protection, and article 1(F) enumerates the people who do not deserve refugee status, i.e. for having committed serious non-political crimes prior to flight, commission of war crimes or crimes against humanity. These lists are exhaustive, meaning that these – and only these – criteria may be applied in determining that someone should not be granted refugee status even though they otherwise meet the definition of refugee.
The text of Article 1(E) reads as follows:
“E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”
This article sets the standard at rights and obligations equal to those of nationals of the country, which is an important qualification especially in our discussion on what constitutes “sufficient protection”. Such refugees as have rights and obligations equal to those of nationals could be considered to have obtained a durable solution even if they have not obtained the nationality. A strict reading of this article would imply, however, that in order to be considered a durable solution under this Article, a refugee would have to have the kind of rights such as be able to vote, own property, perform compulsory military service, and have a right to re-admission – elements that are frequently restricted for non-nationals irrespective of whether other rights, i.e. to education, health, equal treatment, etc., are on an equal footing.
What about other sources of law?
There is no article relating to “safe third country” or “first country of asylum” in the Refugee Convention. Although there is no specific provision in the 1951 Refugee Convention that would allow a State to decide that our dear refugee from country A should have sought asylum in country B and therefore is not entitled to refugee status in country C, a number of countries have come up with various arrangements by which they wish to extricate themselves from the responsibility of assessing the asylum claim and granting refugee status to refugees. These endeavours have been reflected in subsequent so-called “soft law” initiatives (such as Agenda for Protection and Convention Plus) as well as ExCom conclusions, including Conclusion No. 58 (XL) (1989) on Refugees and Asylum Seekers Who Move in an Irregular Manner From a Country in Which They Had Already Found Protection, which elaborates circumstances where a refugee might be returned to a country where they had already had asylum, provided that he or she can enter and remain there with full protection and access to a durable solution.
But these Conclusions and initiatives, for example, do not provide grounds for refugee status to be rejected in country C on the basis of previously having applied for asylum or stayed (for an unspecified amount of time) in country B; rather, they establish circumstances whereby country C would ensure that our refugee from country A can actually be readmitted and live in country B.
Non-refoulement – the principle of non return to a place where a person could be subjected to persecution, torture or ill treatment – is the cornerstone of international refugee law and is considered a principle of customary international law, beyond being enshrined in a number of international instruments such as the 1951 convention, the Convention Against Torture, etc. Non-refoulement still applies to any country having effective (de facto or de jure) control over persons OR territory (Australia, we are looking at you). If a person is returned to a country where he or she fears persecution it constitutes refoulement, but States are also responsible if they return a person to a country (country B) which then returns them to a country where they face persecution (so-called “chain refoulement“).
EU law relating to asylum within the Common European Asylum System is regulated by a number of directives, notably the recast Qualification Directive (QD), the recast Dublin Regulation (DR), and the EU recast Asylum Procedures Directive (APD). We are presuming, in our examples, that our fictional refugee from country A, who at one time was in non-EU* country B, is now applying for asylum in EU country C.
* some EU legislation related to refugees may also apply to non-member states such as Switzerland, Norway and Iceland who apply i.e. the Dublin Regulations and Schengen but not necessarily other elements of the Common European Asylum System and are not necessarily bound by it. The Dublin Regulation regulates how asylum applications are to be handled if Countries B and C are both EU members or subject to the Dublin Regulations (EU + Norway, Iceland, Switzerland).
First country of asylum, according to Article 35 of the APD, refers to a refugee who has (already) received refugee status/durable solution in a previous country before applying for asylum in a different country – refugee from country A receives refugee status in country B before later leaving non-EU* country B and seeking asylum in EU* country C. According to EU law, the person has to have been recognized OR enjoy “sufficient protection” (more on that later); the person must be readmitted to that country; and the person has the right to rebut the presumption of a first country of asylum. Furthermore, EU* country C may (but is not required to), “take into account” a series of criteria (article 38) about how safe country non-EU* country B is.
Safe third country, according to Article 38 of the APT, has our fictional refugee A passing through non-EU country B – where she or he has not claimed asylum, or has claimed asylum but with no result – to EU country C where she or he then claims asylum. Again, Country B would need to agree to re-admit the person; there should be access to an asylum procedure in accordance with the 1951 Convention and treatment in accordance with international law, especially protection from physical harm and refoulement, and protection of life and liberty. Additionally to these provisions, the refugee ought to have a meaningful link to the country, which, according to UNHCR, should be more profound than a simple transit through country B.
Within EU refugee law, a refugee who is considered to have enjoyed “sufficient protection” in country B ought to return and be recognized there as a refugee (Article 35 APD). The text, however, does not define this “sufficient protection”, and only suggests that States look at the criteria in Article 38 withiut requiring them to apply these standards. Let’s take a look at Article 38 APD:
APD: Article 38 – The concept of a safe third country
1. Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned:
(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
(b) there is no risk of serious harm as defined in Directive 2011/95/EU;
(c) the principle of non-refoulement in accordance with the Geneva Convention is respected;
(d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and
(e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
Although (b) above seems to closely mirror the refugee definition found in the 1951 Convention (a refugee is a person outside of their country of origin with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group and who is unable/unwilling to return), it should be noted that UNHCR has held that persecution – while not explicitly defined – encompasses fear of life and liberty but also fear of violation of other fundamental rights. Concievably, therefore, country B could violate some fundamental rights (like expression of religion or gender identity, to name two) without running afoul of this clause. Some of this “gap” is covered by the concept of “serious harm” according to the Qualification Directive (part (c) above, but it is conceviable that some gap exists. Theoretically, Article 38 is not itself meant to be grounds for refugee status, but is meant to determine if our asylum country B is suitable for our refugee, and should be rebuttable, such that our refugee ought to be able to highlight any “gaps” that would impact him or her personally, or if for another reason our refugee would face harm in country B that they would not face if given asylum in country C.
According to UNHCR, it therefore follows from the text, context and object and purpose of Article 35 that ‘sufficient protection’ goes beyond protection from refoulement. In UNHCR’s view, ‘sufficient protection’ requires that protection in the first country of asylum is effective and available in law and practice, allowing the person who has enjoyed asylum in a previous state to reavail him- or herself of that protection. This includes a number of critical elements:
– no risk of persecution within the meaning of the 1951 Convention or serious harm in the previous state;
– no risk of onward refoulement from the previous state;
– compliance, in law and practice, of the previous state with relevant international refugee and human rights standards, including adequate standards of living, work rights, health care and education;
– access to a right of legal stay;
– assistance of persons with specific needs;
– timely access to a durable solution
Although these criteria and circumstances are supposed to be analyzed on a case-by-case basis, part of the problem is a continued exclusive focus on the legal regime (i.e. within the law, does the person have protection from refoulement, access to legal stay, etc.) with less emphasis on a qualitative analysis that ought to be just as important. The qualitative analysis must analyze if the protections exist only on paper or also in practice.
There is a substantial difference between treatment equal to that afforded to nationals (as per Article 1(E) of the 1951 Convention) and the rights/obligations of refugees as described in the 1951 Convention. Quite a number of the rights or treatment afforded to refugees under the 1951 Convention are limited or restricted in some manner.
In our previous discussion on some of the qualitative elements of “enjoying” asylum, we note that the 1951 Refugee Convention states a number of rights and privileges to which refugees should have access – rights to things like employment, education, and documentation– but many of these rights, at least as written in the Convention, indicate that refugees should have rights comparable to those of other foreigners, and only in some limited cases should refugees enjoy rights on equal footing to nationals. Rights to employment and family life, as well as freedom of movment, are frequently restricted or the subject of reservations to the Convention. In a previous post, we also looked at how the Convention handles rights to primary education, wage-earning employment and self employment. Even if rights to education or employment or access to justice exist on paper, they must also exist in practice, not only theoretically.
Finally, UNHCR has noted that the receiving country – in our example, country B – should give timely access to a durable solution. Which is an important point to note – very few countries outside of Europe and North America offer any kind of durable solution or permanent status attached to refugee status. Many refugee-hosting countries, in addition to specific legal restrictions, have a general regime (legal, assistance) predicated on the concept that refugees are temporary, and should not (and will not) become permanent members of society. If, in the end, this is the major qualitative difference between an EU country and a Country B where legal protections are afforded but no durable solution is in sight, it is a substantial difference indeed.
Safe third country” in application: the EU-Turkey deal
In conclusion, a country will have to meet a pretty high standard in terms of legal rights and treatment before it ought to be considered a “safe country” offering “sufficient protection”. Critics of the EU-Turkey deal have noted substantial shortcomings in both the legal and administrative regime in Turkey which would indicate that Turkey should not be considered as offering “sufficient protection” as a “safe country”. More serious allegations against Turkey specifically include claims that Turkey is massively failing the basic metric of ensuring legal status and, most seriously, allegations that Turkey has refouled refugees back to countries of persecution. Others have noted that the deal jeopardizes refugees’ right to seek asylum, as Turkey is not a member of the EU, so additional protections according to European Human Rights Law are not available to refugees in Turkey. Furthermore, Turkey also has a reservation to the 1951 Convention which excludes non-Europeans from falling under Turkey’s obligations. Limited capacity in both Greece and Turkey to conduct asylum interviews and ensure treatment in accordance with national and international laws is also a concern.
In addition, numerous criticisms highlight shortfalls of the Greek asylum system that could lead to violations of rights of refugees and asylum-seekers there, both in terms of whether Greece itself offers “sufficient protection” and whether its asylum system can ensure respect for the human and administrative rights due to refugees and asylum seekers under EU law. If refugees and asylum-seekers are not afforded individual consideration, interview and analysis, and are not afforded an opportunity to object, on an individual basis for specific reasons, to their return to Turkey, it would not be in accordance with the APD. The result could be that some people who have a specific good reason to not want to be returned to Turkey (i.e. LGBTI refugees) will not be adequately assessed, nor their administrative protections as per EU law upheld. Weaknesses in the Greek asylum were already considered severe when the European Court of Human Rights suspended returns to Greece under the Dublin Regulations (which ordinarily stipulate that an asylum claim be assessed in the first participating country where the fingerprints are taken) in 2011, prior to the currrent situation which has been widely reported as inefficient and ineffective. Human Rights Watch has alleged that the EU-Turkey deal has resulted in thousands being trapped in Greece for a year with no effective access to an asylum system at all.
Links and references:
- Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice – Detailed Research on Key Asylum Procedures Directive Provisions, UNHCR, March 2010, p. 290-291
- Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, UNHCR, 23 March 2016
- Common European Asylum System, European Commission website
European Union: Council of the European Union, 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), 29 June 2013, OJ L. 180/60 -180/95; 29.6.2013, 2013/32/EU (“APD”).
- Refugee Law reader:
- UNHCR, ‘Global Consultations on International Protection, Background paper no 1: Legal and practical aspects of the return of persons not in need of protection’, May 2001.
- UNHCR, ‘Global Consultations on International Protection, Background paper no 2: The application of the “safe third country” notion and its impact on the management of ﬂows and on the protection of refugees’, May 2001.
- UNHCR, ‘Global Consultations on International Protection, Background paper no 3: Inter-State agreements for the re-admission of third country nationals, including asylum seekers, and for the determination of the State responsible for examining the substance of an asylum claim’, May 2001.
- UNHCR, ’Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers’, May 2013.
- UNHCR, Improving Asylum Procedures, March 2010, in Section VI.2.4.3.
- UNHCR, Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum-Seekers (Lisbon Expert Roundtable, 9-10 December 2002), February 2003
- M.S.S. v. Belgium and Greece, Grand Chamber, European Court of Human Rights, 21 January 2011 (see Section V.1.2).
On the EU-Turkey deal specifically:
- Turkey as a Safe Third Country? Orçun Ulusoy, Border Criminologies blog, Oxford University Faculty of Law
- Analysis Why Turkey is Not a “Safe Country” Emanuela Roman, Theodore Baird, and Talia Radcliffe, Statewatch, February 2016
- Athens given deadline as EU looks to send more refugees back to Greece, The Guardian, February 2016
- Turkey ‘safe country’ sham revealed as dozens of Afghans forcibly returned hours after EU refugee deal, Amnesty International, March 2016
- The Paradox of the EU-Turkey Refugee Deal, Elizabeth Collett, Migration Policy Institute Europe, March 2016
- Greece: Asylum Seekers Locked Up: Wretched Conditions for People in Need, Human Rights Watch, April 2016
- EU’s reckless refugee returns to Turkey illegal, Amnesty International, June 2016
- No safe refuge: Asylum-seekers and refugees denied effective protection in Turkey, Amnesty International, June 2016
- Five reasons why the EU Turkey deal still is not a good idea, Norwegian Refugee Council, September 2016
- EU-Turkey Deal: Violation of, or Consistency with, International Law? Jenny Poon, European Papers, December 2016
- Where did the money go? How Greece fumbled the refugee crisis, The Guardian, 9 March 2017
- Greece: A Year of Suffering for Asylum Seekers: EU-Turkey Deal Traps People in Abuse and Denies Them Refuge, Human Rights Watch, May 2017