When Is It Safe to Return? Protection Gaps in Non-Refoulement

by María López Benito

Image Credit: Rocco Nuri/UNHCR (December 2010), Caption: Government of Yemen joint registration of Somali refugees in Sana'a (https://meridianes-geographie.blogspot.be/)

Since the refugee crisis burst into the European agenda, the European institutions have tried to coordinate a common response of the Member States.  International and European Law are crucial to manage this crisis.  This analysis tries to identify protection gaps in non-refoulement guarantees.

State Obligations for International Protection

Although European and international law develops international protection extensively, inconsistencies remain in the legal basis and application of protection. ‘Non-refoulement’ is one such area – seemingly a well-defined obligation of states to protect the human rights of asylum-seekers within their borders, rather than expel (‘refoule’) them to their countries-of-origin. Within these normative developments, there is one concept that promotes the systematic ineffectiveness of the European migration procedures: the problematic conception of a “safe third country.”  First, I will look at the international and European treaty law about non-refoulement, and how it is developed. Secondly, I will examine how states violate these obligations: by discriminating among the refugees they decide to take in; in discerning – sometimes wrongly – which countries are “safe;” and by signing international compromises which would seem to sacrifice refugee human rights for political stability.

The first reference in International Law with respect to non-refoulment clause and refugees, was the 1951 Convention on the Status of Refugees, whose articles 1.A(2)[i] and 33(1)[ii] set the requirements which individuals must satisfy to be protected by a foreign country.  Article 1.A (2) establishes who is open to be considered a refugee; that is, any person who has, a “well-founded fear of being persecuted for reasons of race, religion, nationality” and who “is outside the country of his nationality (or lacks a nationality) and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country… or of the protection of his former habitual residence, as a result of such events.” These precepts are completed by some others contained in the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), such as Article 3 which prohibits the expulsion of refugees.[iii]

The European Convention on Human Rights guarantees the respect to Human Rights in Article 1.[iv] According to its mandate, if any member state expels, returns or extradites any refugee to a country of origin or residence where he may be at risk because of his political opinion, religion, and so on, then that state will be violating the convention and the human rights of the refugee. This view is based in the sentence Hirsi Hamma and others against Italy (February 23, 2012) of the European Tribunal of Human Rights, which recognized an obligation on the part of the contracting parties of the Convention to respect the rights of immigrants in its territories, even if they are so-called “illegal immigrants.” The applicants in the case were 11 Somalians and 13 Eritreans intercepted by the Italian coastguard in May 2009, in the Mediterranean. Italian authorities brought them to Libya, without respecting the criteria established by International Law (identification, information…). The court noted that the countries of origin involved in the case (Somalia and Eritrea) were deeply insecure, so as Libya was (even if there was an agreement signed between Italy and Libya, great example of national discretion with respect to migration management).

The first reference to non-refoulment at the European level is in the Treaty on the Functioning of the European Union (TFEU). Article 78 includes the precepts of the 1951 Geneva Convention and 1967 Protocol[v].  The Charter of Fundamental Rights of the European Union guarantees refugee’s protection in articles 18[vi] and 19[vii]. The common policy on asylum has been developed with the Common European Asylum System (CEAS), outlined below.

Image: Common European Asylum System procedure (illustration prepared by the author)
  • The Asylum Procedure Directive sets the rules about how to apply the system;
  • The Reception Conditions Directive establishes the conditions to be eligible as refugee, providing special attention to vulnerable people;
  • The Qualification Directive aims to ensure that people fleeing persecution are treated in a uniform and fair way.
  • The Dublin Regulation is the most conflictive because gives to the member states, the responsibility to examine the asylum applications.
  • The EURODAC regulation creates an asylum fingerprint database.

Definition of a “Safe Country”

The concept of safe third country introduces one of the most important gaps in international protection. This concept refers to those counties where persecution against an asylum seeker, in line with the reasons codified in the Geneva Convention. As part of the refugee crisis management, the safe countries list has raised its importance. The EU member states define “safe countries” as states that meet the criteria of the Geneva Convention, where there are no persecution practices and to which asylum-seeker applicants can be expelled automatically. According to EU regulations and directives, the safe countries are elected by the member states.  Member states have the responsibility to investigate asylum applications one by one and to decide if the country in question is “safe.”

The first protection gap is that some countries are considered safe by some member states and not others. This misunderstanding leads to a lack of protection for asylum seekers.  Despite the fact that the states have signed international treaties, they are free to apply them into domestic law in their own ways, making international law less effective.

United Nations High Commissioner for Refugees (UNHCR) is relevant in this area. The UNHCR monitors national refugee frameworks, focusing on non-refoulment and treatment of refugees, guaranteeing the proper accordance between national uses and International Law.  Even if the UNHCR is supposed to be the safeguard of refugee rights, its role is subjective: on the one hand, it can decide which acts are violations of its main principles, and on the other hand, this authority is unable to intervene in an effective way.  The explanation of its lack of effectiveness comes up from the instruments it can use to achieve the objectives set.  These tools consist in two ways to intervene against a potential violation: firstly, the UNHCR owns an informal step such as a written report, and a formal one based in negotiations. In case of a serious violation, as for example, refoulment, the high commissioner could be present at court as a third party and consultant. However, none of these steps allows the authority to make a compulsory decision that contracting parties must respect.  For its part, the UNHCR only monitors national protocols and identifies state violations.  Its mandate grants only soft tools; which means that when states violate the principle of non-refoulement, no consequences for the violating state are enforceable by the UNHCR.

Another lack of effectiveness implies the inability to develop a well-accepted concept, in relation to the precept present in International and European Law, about “substantial grounds” for believing that somebody can be in danger of torture, etc. That expression, such some others contented in different rules, leaves the parties to choose which situations means a risk for asylum seekers, as it happens with the consideration of safe country.  The discretion of contracting parties to choose for themselves which states are considered “safe” promotes a protection gap for refugees and threatens their life chances.

Priority: State Discretion or Human Rights?

After evaluating the extent of the crisis, the European Union decided to establish the refugees’ quotas which obliged member states to accept a specific number of refugees. Some months later, only Finland and Cyprus succeeded in their obligations.  A majority of EU member states, meanwhile, have not accepted their allocated number of asylum-seekers.  This is a consequence of allowing member states to decide, at their own discretion, which asylum seekers they will accept in their territories or expel to counties-of-origin; requirements that were not the same to one another. In fact, EU member states are choosing refugees by religion, country of origin and other discriminatory and unsuitable reasons, according to European Law.

The UNHCR accepts the legality of “safe third country” returns, so long as these returns do not contravene non-refoulement obligations. However, the EU presumes that Turkey is a “safe third country”, without contrasting if Turkey fits all the criteria. This presumption could increase refoulement in cases where Turkey does not have the proper asylum procedures, as many NGOs have reported, such as Human Rights Watch or Amnesty International. Proper procedural safeguards are not in place to protect asylum claimants and refugees in Turkey so EU law does not bind Turkey.

Without a common European Immigration Policy, the European Union acts in disrespect of its own fundamental values.  The member states are getting increasingly independent in their goals while national priorities dominate at the expense of a common immigration policy. To face this situation, one way is to put pressure on decision makers, creating specialised national and non-formal authorities in charge of retaining the objectives the European Union has ignored.

To ensure coherence and respect for its fundamental values, it would be rational to create a real and common European Immigration Policy. That policy would be able to contain all the rules in relation to asylum, including a common list of safe countries, and a common concept of the “substantial grounds” for granting asylum, while also removing the discretion of member states in this regard and the so-called Pact of Shame signed with Turkey.

[i]  1951 Convention on the Status of Refugees, article 1.A (2) establishes who is open to be considered refugee: “(…) owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national”. 

[ii] In the article 33(1), the prohibition of expulsion or return (refoulement), is developed saying that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

[iii] Article 3 of UNCAT:“1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture (…); 2.(…) the competent authorities shall take into account all relevant consideration (…)”.

[iv] The article 1 of the European Convention on Human Rights says: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. And its Section I contents: right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, rights to a fair trial, no punishments without law, freedom of thought, conscience and religion, freedom of expression…

[v] Article 78 TFEU: “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties”.

[vi] Article 18 launches the asylum right: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community”.

[vii] In the article 19 is codified the protection in the event of removal, expulsion or extradition: “1) Collective expulsions are prohibited; 2) No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”

María López Benito
Spanish Political Scientist. Master in European Studies. PhD student in Migration, Security and Human Rights. Expert on Migration and International Relations. Rural Development Consultant in an European Project based on international trade with Portugal. Extensive experience of collaborating with the Socialist Party of Spain. Former trainee of Socialists and Democrats working in the European Parliament's Committee on Civil Liberties, Justice and Home Affairs.

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