Refugees Magazine Issue 101 (Asylum in Europe) - Protection of, or protection from, refugees?

Refugees (101, III - 1995)

The "safe third country" concept - in which asylum-seekers judged to have transited a safe country are returned to it - is fine in theory, but still far from perfect in practice.

By Judith Kumin

Ever since the number of asylum-seekers in Western Europe began to climb in the late 1980s, burden-sharing has been a frequent item on the political agenda. But in the absence of a workable system for distributing asylum-seekers and for sharing the accompanying costs among countries in the region, governments have turned to a more convenient approach - the application of safe third country rules.

According to this notion, asylum-seekers should not have the luxury of choosing the country where they will ask for asylum. Rather, they should ask for protection in the first country they reach where this would be possible. Countries which apply the safe third country rule deny asylum-seekers access to a substantive refugee status-determination procedure on the grounds that they could have, or should have, requested asylum elsewhere.

Thus, the Iraqi Kurd who makes his way via the Jordanian capital of Amman to Moscow, then travels overland through Latvia and then by boat from the port of Riga to Sweden, is sent back to Latvia. A Kosovo Albanian woman who crosses Hungary and Austria and presents herself to German border guards asking for asylum is denied entry, even though she is seven months pregnant, accompanied by two small children, and her husband is already in Germany. A group of Tamils from Sri Lanka who travel by air via Abu Dhabi and Rome to Vienna are returned from Vienna to Rome, and then sent onward from Rome to Abu Dhabi. The configurations are endless; the human drama is nowhere recorded.

It is widely recognized that the safe third country notion (also referred to as "safe host country" or as "protection elsewhere") can be a useful procedural tool to enable states to handle asylum procedures expeditiously. However, if it is applied without adequate procedural safeguards there is a risk of chain deportations in which each country - without looking into the merits of the individual claim - passes the asylum-seeker back to the last country through which he or she travelled. The reverse journey may end in a country which does not afford sufficient protection to refugees or, worse, in the country of origin.

Democratization in Central Europe and the emergence of a general perception of the region as "safe" for refugees gave Western European governments a strong incentive for formalizing policies regarding safe third countries. On 30 November 1992, the ministers responsible for immigration in what was then the European Community adopted a "Resolution On A Harmonized Approach to Questions Concerning Host Third Countries." This was intended to establish objective criteria for applying the safe third country principle. According to the resolution, "if there is a host third country, the application for refugee status may not be examined and the asylum applicant may be sent to that country."

However, since adoption of the resolution, there has been considerable disagreement both on how to determine if a country meets the criteria for being a safe third country, and on when the concept should be applied. Should a Zairian woman whose husband is an asylum-seeker in Belgium but whose flight landed in Rome en route to Brussels be returned to Italy? Which state should be responsible for the 17-year-old Liberian girl who flies from Ghana to Bulgaria, and then travels to Germany overland through Serbia, Hungary, Slovakia and the Czech Republic? Should Poland be considered a "safe" third country, even though there are persistent reports that certain groups of aslyum-seekers - Armenians, for example - have difficulty getting access to the asylum procedure there?

Germany has Europe's most far-reaching safe third country rule. Although Article 16(a) of Germany's Basic Law, or Constitution, still affirms that, "politically persecuted enjoy the right to asylum," the next paragraph excludes from the right to asylum all persons who enter Germany from a "safe" country, defined as one where application of the 1951 Convention relating to the status of refugees and the European Human Rights Convention is assured. All countries having land borders with Germany are thus deemed "safe" with the result that no asylum-seeker entering Germany overland after 1 July 1993 should have access to protection in Germany. Although in practice it has not been possible to apply this rule as stringently as was intended, either because asylum-seekers purport not to know through which country they travelled or because neighbouring countries refuse to readmit them, the rule still has the potential to change the asylum landscape in Europe.

The European Council on Refugees and Exiles (ECRE), in its February 1995 publication titled "Safe Third Countries: Myths and Realities," warns that "by introducing various and varying categories of 'second' and 'third' 'responsible' host countries, states have actually increased, rather than reduced, the incidence of 'refugees in orbit'" - those who end up in limbo, shunted from one country to another without access to proper status determination.

Under general international law, states are only obliged to readmit their own nationals. To facilitate the return of asylum-seekers to countries through which they have travelled, Western and Central European states are increasingly concluding readmission agreements which apply to third-country nationals as well. Yet, with the exception of returns in the framework of multilateral agreements like the Schengen Agreement and the Dublin Convention (the latter is not yet in force), there is no guarantee that the individual will have access to an asylum procedure. The readmitting state is generally not informed that the person it is being asked to take back is an asylum-seeker, nor of the fact that his or her claim has not been examined on its merits by the sending state.

UNHCR was disappointed that member states of the European Union did not agree to include even a modest safeguard in the "Standard Bilateral Readmission Agreement," the text of which the E.U. Ministers of Justice and Home Affairs adopted at their meeting on 1 December 1994. Such agreements are intended, among other things, to allow the transfer of asylum-seekers to third countries, but lack provision that an asylum claim will be examined on its merits in the third country.

Formal agreement among states about the responsibility for handling asylum requests would reduce the number of asylum-seekers in orbit and discourage misuse of asylum procedures. The Dublin Convention and the Schengen Agreement are a step in the right direction because they address questions of readmission of asylum-seekers and competence for examining an asylum request. However, the first months' experience with the Schengen Agreement demonstrates that even among parties to that accord, it is difficult to reach agreement on responsibility for asylum claims. According to the German Interior Ministry, of 511 requests to readmit asylum-seekers addressed to Germany by France and the Netherlands in the first three months of application of the Schengen Agreement (March-June 1995), Germany rejected 53 percent, accepted 12 percent, and (at the end of June) was still studying the remainder.

Meanwhile, the network of bilateral readmission agreements grows ever more dense. A 1994 compilation prepared by the Secretariat of the Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia lists 30 separate bilateral readmission agreements involving Western and Central European states, or between Central European states. Although not all extend to the readmission of third country nationals, most do so. None contains any specific assurances regarding protection of asylum-seekers.

It is clear that the asylum scene in Europe, previously divided into East and West, is now characterized by a three-way division: the traditional asylum states of Western Europe; a new Central European buffer zone; and the turbulent region of the former Soviet Union and the Balkan states. Although asylum-seekers are increasingly being returned to countries in Central Europe which have been deemed "safe," the number of persons who apply for asylum in these countries remains very low.

There are many reasons why asylum-seekers do not ask for protection in the first country in which this might be possible. Varying levels of material assistance and varying standards of protection are part of the explanation. As far as Central Europe is concerned, most asylum-seekers do not yet perceive this as an asylum region, and many try again and again to make their way to Western European countries. Sometimes, asylum-seekers are unable to gain access to asylum procedures, even in countries deemed "safe."

In an effort to remove the element of uncertainty for the asylum-seeker, and to offer a fundamental safeguard, UNHCR has recommended that the consent of the third state be secured before an applicant for asylum is sent there, and that assurances be obtained that he or she will be admitted to an asylum procedure. It would also be important - especially with regard to the "new" asylum states - to inform the individual of the possibility to apply for asylum. Ironically, it is precisely this element of uncertainty which some governments see as a useful deterrent factor. In a report on asylum in Germany presented to the German Parliament on 20 June 1995, German Interior Minister Manfred Kanther said: "Certainty has yielded to uncertainty. The mere possibility of being immediately sent back (to the third country) has raised the stakes for those who might embark - without the necessary entry documents - on the costly journey to the Federal Republic of Germany."

While the German government credits the safe third country rule, together with other changes in German asylum legislation, with having brought the number of asylum-seekers in Germany down from a record high of 438,191 in 1992 to 127,210 in 1994, the safe third country rule is coming under increasing judicial scrutiny in Germany and elsewhere. Germany's highest court is expected to rule soon on the constitutionality of the safe third country rule introduced into the German Basic Law in mid-1993. The court challenge comes in the context of cases where the "safety" of Greece and the Czech Republic have been questioned. In the United Kingdom, the "safety" of Germany, France, Austria and Greece as countries of asylum have been subject to scrutiny.

It is likely, however, that safe third country rules are here to stay, in one form or another. Four steps would go a long way toward making them more palatable, from both the legal and humanitarian viewpoints.

• Firstly, the applicant should be able to challenge - in an individual procedure - the presumption that he or she could find safety in the third country.

• Secondly, the receiving state should be informed that the individual being sent back is an asylum-seeker, and its consent to admit him or her to an asylum procedure should be secured.

• Thirdly, the individual should be informed of the possibility to apply for asylum in the country concerned and of the procedure to follow.

• Lastly, asylum-seekers should not be made subject to safe third country rules if they have compelling reasons for being exempted from them, such as an urgent medical condition or close family ties in the destination state.

These simple steps would be a signal that protection of refugees, and not protection from refugees, remains the overriding concern of states.

Source: Refugees Magazine Issue 101 (1995)