Background Note on the Safe Country Concept and Refugee Status

EC/SCP/68

Introduction

1. As demands on States to admit and receive persons seeking asylum increase, resort is had to arrangements or approaches by which responsibilities in this regard might reasonably be rationalized and shared. Such arrangements or approaches are to be welcomed where they lead to clearer identification of those in need of protection and to international cooperation in the provision of this protection and the realisation of lasting solutions. The refugee problem is international in scope and character. International problems require an international solution which, in turn, depends on international cooperation.¹

2. It is against this background, and with a view to stimulating helpful guidelines, that the Office of the United Nations High Commissioner for Refugees submits for the consideration of the Sub-Committee of the Whole on International Protection this background note on a concept which is gaining much currency and which has become, for a number of States, one basis both for protection burden-sharing and, at an earlier stage, for determining States' responsibilities. The concept is generally referred to as the "safe country" concept.

The Safe Country Concept

3. Simply put, the term "safe country" has been applied, in the refugee context, to countries which are determined either as being non-refugee-producing countries or as being countries in which refugees can enjoy asylum without any danger. Clearly, therefore, the concept of "safe country" is applicable in two situations which give rise to separate sets of considerations: i.e. in the context of A) Safe Country of Origin and B) Safe Country of Asylum. Each situation is examined separately below.

A. Safe Country of Origin

4. Application of the safe-country concept in relation to countries of origin leads to nationals of countries designated as safe being either automatically precluded from obtaining asylum/refugee status in receiving countries or, at least, having raised against their claim a presumption of non-refugee status which they must, with difficulty, rebut.

5. In so far as application of the concept would a priori preclude a whole group of asylum-seekers from refugee status, in UNHCR's view this would be inconsistent with the spirit and possibly the letter of the 1951 Convention relating to the Status of Refugees. In particular:

• It would be a reservation de facto to Article I A (2) of the Convention and would thus be in violation of Article 42, which prohibits reservations to this first Article.

• It would introduce de facto a new geographical limitation to the Convention, which is incompatible with the intent of the 1967 Protocol to the Convention and runs counter to broadly based international opinion, as reflected in Executive Committee conclusions, in favour of application of the Convention without geographic restrictions.

• It would be inconsistent with Article 3 of the 1951 Convention which requires States to apply its provisions without discrimination as to country of origin.

• It would be inconsistent with the individual character of refugee status and the subjective nature of fear of persecution, which requires evaluation of the applicant's statements, rather than solely a judgement on situations prevailing in countries of origin.

• It is conceivable (given the inevitable imprecision of judgements about prevailing human rights situations in countries, as well the pace at which such situations can evolve) that strict application of the concept could lead to individuals being returned to situations of danger to life, in violation of the Article 33 prohibition against refoulement.

6. An added concern regarding the concept is that, as it is often explained by States, one purpose of its application is to encourage democratization processes in countries of origin. However, promoting "normalization" in countries through the medium of the asylum procedure is inappropriate, in UNHCR's view; it serves to politicize an essentially humanitarian process. In saying this it needs also to be recognized that a safe-country designation may indeed send an important signal to would-be asylum-seekers without valid claims that the likelihood of a successful application is limited.

7. With perhaps the exception of the last concern, the others arise principally where the concept is applied in effect as an automatic bar to refugee status, without resort to procedures. Where, however, an eligibility procedure still applies and where the concept is used in a procedural sense to assign certain applications to expedited or accelerated procedures (e.g. for manifestly unfounded cases), or where its use has an evidentiary function. For example, giving rise to a presumption of non-status rebuttable in eligibility procedures, the above concerns are much diminished.

8. It needs to be noted in this regard that a de facto safe-country criterion in procedures is not new. Most eligibility officers operate with a form of safe-country concept, based on their general knowledge of conditions in countries of origin, when assessing the well-foundedness of the fear. A number of countries are in the process of establishing "country profiles". Judgements about the safety of conditions in countries of origin in part underlie the cessation clauses of the 1951 Convention, notably Article 1 C (5-6). In addition, "safe country" is the reverse of notions of "unsafe country", which are integral to certain existing national procedures. UNHCR regards such procedures as offering a very useful mechanism to respond to protection needs of individuals which may well prove temporary.

9. Finally, it is clear that a State is not precluded from raising evidentiary presumptions in relation to certain classes of applicants by reference to country of origin, provided these are based on verifiable, current assessments of factual situations, are rebuttable and provision is made for the individual, exceptional case.

10. These considerations lead to the conclusion that, where the concept of safe country has a procedural function vis-à-vis accelerated procedures, it does have a role in preventing or reducing backlogs and helping to identify cases for expedited treatment. It needs to be reiterated, however, that where it serves to block any access to a status determination procedure, or where it results in serious inroads into procedural safeguards, it is to be strongly discouraged. In addition it must always be recognized that decisions about "safety" are extremely difficult, given volatile human rights situations and the inherently biasing effect of political or foreign policy considerations.

B. Safe Country of Asylum

11. According to this use of the concept, asylum-seekers/refugees may be returned to countries where they have, or could have, sought asylum and where their safety would not be jeopardized, whether in that country or through return there from to the country of origin.

12. Application of the "safe-country" concept to asylum countries poses fewer difficulties than arise with countries of origin, as long as the concept is accompanied by appropriate safeguards. In the first instance, it should be recognized that it has some basis in the phraseology of the Convention, where the Convention requires direct arrival from territories where life/freedom is threatened before a particular provision can apply (Article 31 (1)). The notion was also formally put forward in the context of the 1977 Diplomatic Conference on Territorial Asylum, when Denmark proposed that where it appeared that a person already had a connection or close links with another State, if it was reasonable and fair, (s)he should be called upon to request asylum from that State. It was, recognized though, that asylum should not be refused solely on the grounds that it could have been sought elsewhere.

13. Conclusions adopted by the Executive Committee have also variously given credence to the notion. In this connection, Conclusion 15 (XXX) (1979), para. (h) (vi) is noteworthy:

"Agreements providing for the return by States of persons who have entered their territory from another contracting State in an unlawful manner should be applied in respect of asylum seekers with due regard to their special situation".

Reference might also be made to Conclusion No. 58 (XL) (1989) on Irregular Movements, paras. (f) and (g), which together accept that a refugee/asylum-seeker may be returned to the country of first asylum if the person:

• can enter and remain there,

• is protected there against refoulement and is treated in accordance with basic human standards,

• will not be subject there to persecution or threats to safety and liberty (on this, see also Conclusion No. 15, para (k)),

• has access to a durable solution.

14. The application of the "safe country" concept is also generally consistent with the position, which UNHCR supports, that there should be means to identify the State responsible for examining an asylum request, so as to avoid orbit situations and multiple, simultaneous asylum requests by any one applicant. The European Community Convention on Determining the State Responsible for Examining Asylum Requests Lodged in One of the Member States (the Dublin Convention of 1990), as well as the Additional Schengen Convention relating to the suppression of frontier controls at common borders are both positive developments in this regard.

15. On the other hand, there are difficulties in applying the concept, in particular in deciding how long an individual needs to have stayed in a country and under what circumstances (Is transit sufficient?) before that country can be determined a country of first asylum. In addition, there is the problem of establishing safety (what conditions, for example, qualify as "basic human standards" and what safeguards should be accepted as sufficient to guard against possible refoulement). There may be a need, in this connection, to augment the list, in Executive Committee Conclusion No. 58, of prerequisites for return to include adherence and/or compliance with the 1951 Convention relating to the Status of Refugees, as well as basic human rights instruments, including the U.N. Bill of Rights². Finally there is the problem of ensuring that individual asylum seekers remain able to invoke circumstances militating against return to the "safe" country of asylum.

Conclusion

16. Overall it is UNHCR's position that, while in principle each State Party to the 1951 Convention and 1967 Protocol has a responsibility to examine refugee claims made to it, "burden-sharing" arrangements allowing for readmission and determination of status elsewhere are reasonable, provided they always ensure protection of refugees and solutions to their problems.

17. Without underestimating the difficulty of reaching agreement on problems such as are mentioned above (length of stay, criteria for establishing safety etc.), the answer may most reasonably lie less in unilateral efforts and more in internationally agreed arrangements which establish formal mechanisms for determining responsibility and which incorporate the "safe-country" notion but at the same time provide for clearly defined and harmonized criteria against which to measure whether countries should be considered safe. Such mechanisms can only be truly successful, in principle and in practice, if certain conditions are met, including agreement between directly concerned parties on: (a) standards of application (to whom the mechanisms apply and with respect to which countries); (b) standards of treatment (how the mechanisms shall be applied and when); (c) operational modalities (treatment of asylum-seekers, arrangements for return and readmission, eventuality of solutions); and (d) monitoring of implementation.

1 Preambular paragraph 4 of the 1951 Convention relating to the Status of Refugees recognizes this fact in the following way:

"Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation."

2 1948 Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights.