The compatibility of readmission agreements with the 1951 convention relating to the status of refugees

International Journal of Refugee Law

Volumn 11, Issue 1, 1999, Pages 60-83

  Albuquerque Abell, Nazaré ^a,b  

^a United Nations High Commissioner for Refugees   (Switzerland)

^b YORK UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; IMMIGRATION POLICY; LEGISLATION; REFUGEE;

EID: 1642618182     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/11.1.60     Document Type: Article

References (100)

1. See Council of Europe, 'Colloquy on Refugee Legislation,' Bucharest (3-5 November 1994).
2. Helton, A., 'Forced Migration in Europe,' 20 The Fletcher Forum of World Affairs (Summer/Fall 1996), 91.
3. Albuquerque-Abell, N., 'The Impact of International Migration on Security and Stability,' IV Canadian Foreign Policy (1996), 93-7.
4. '80 percent of the world's refugees have fled from one poor country to another poor country. Very few have actually ended up on the doorstep of the richer nations of Europe.' United Nations High Commissioner for Refugees, III Refugees (1995), 5.
5. Ferris, E.G., Beyond Borders. Refugees, Migrants, and Human Rights in the Post-Cold War Era. Geneva: WCC Publications (1993), 243.
6. Hailbronner, K., 'The Concept of "Safe Country" and Expeditious Asylum Procedures', 5 IJRL 32, 33 (1993).
7. Hyndman, P., 'The 1951 Convention and its Implications for Procedural Questions', 6 IJRL 251 (1994).
8. The member States of the EU have determined by law countries where the occurrence of persecution on political grounds, or of inhuman treatment, or degrading punishment or treatment is unlikely. A citizen of those countries is not considered as having been persecuted on political grounds, and is therefore excluded from invoking the right of asylum. The classification of a country as 'safe' is a matter of governmental discretion in each member State of the EU, and is not subject to public control. For example, Spain has been criticized for determining a safe country on the basis of 'totally inadequate' reports filed by Spanish embassies on generalized political persecution conditions in the asylum seeker's countries of origin. See Wayne Cornelius 'Spain: The Uneasy Transition from Labour Exporter to Labour Importer' in Cornelius, W. (ed.), Controlling Immigration, Standford University Press, California (1994), 352.
9. Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community, signed in Dublin on 15 June 1990 (hereinafter Dublin Convention). The Dublin Convention was signed by all of the member States of the European Union. Text in 2 IJRL 469 (1990).
10. Convention Applying the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders, signed in Schengen on 19 June 1990 (hereinafter Schengen Convention). Portugal, Spain, and Italy have subscribed to the Schengen Convention. The Austrian government signed the Convention on 24 March 1995, but is not expected to be able to implement it before 1998. Text in 3 IJRL 773 (1991). The Schengen implementation Agreement entered into force in March 1995 in 7 of the signatory States: Belgium, the Netherlands, Luxembourg, France, Germany, Portugal and Spain. To date, France, Germany and the Netherlands refuse to ratify Italy's full accession to the Schengen agreement. The reason being that Italy is considered to be one of the gatekeepers of the EU's southern border, and the remaining Schengen countries do not trust its ability to control its borders properly.
11. Both Conventions have been severely criticized because their realization has taken place far from democratic control on either their making or their implementation. See Fortress Europe? A Circular Letter 38 (Oct. 1995), 9.
12. Art. 3 states that 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'
13. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984.
14. Art. 3(5) of the Dublin Convention states that 'Any Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a third State, in compliance with the provisions of the Geneva Convention, as amended by the New York Protocol.'
15. Resolution on a harmonized approach to questions concerning host third countries. For text see The Standing Committee of Experts in International Migration, Refugee and Criminal Law, A new Immigration Law for Europe? The 1992 London, and 1993 Copenhagen Rules on Immigration.
16. A Convention refugee is defined in art. 1(A)(2) of the 1951 Convention/1967 Protocol as any person who 'owing to well-founded 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.'
17. Multilateral agreements are preferred to the bilateral ones because there is more pressure on the country to accept the conditions imposed by a certain group of countries.
18. Though readmission agreements are not a new phenomenon. During the two decades following the Second World War a number of countries entered into agreements regarding border controls. See 'Working Paper on Readmission Agreements,' Secretariat of the Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (August 1994).
19. Ibid.
20. The German-Polish readmission agreement provides that Germany will contribute to the cost for the development of institutions for the examination of asylum requests in Poland, training of its staff and other costs related to the setting up of a functioning asylum procedure in Poland and for border control. Ibid.
21. See Albuquerque-Abell, N., 'The Impact of International Migration on Security and Stability,' IV Canadian Foreign Policy (1996), 102.
22. Marx, R. & Lumpp, K., 'The German Constitutional Court's Decision of 14 May 1996 on the Concept of "Safe Third Countries" - A Basis for Burden-Sharing in Europe?', 8 IJRL 419 (1996).
23. Spain has gone as far as having concluded, in 1992, an agreement with Morocco whereby 2,000 Moroccan troops guard the coast to prevent the departure of asylum seekers to Spain.
24. Amnesty International has reported cases in which asylum seekers have arrived in the UK via the United States, and thus were refused on safe third country grounds, and removal was set for. Despite the US Embassy in London having stated that the US does not believe that it is under any obligation to accept asylum seekers returned by the UK on safe third country grounds. Dunstan, R., 'Playing Human Pinball. The Amnesty International United Kingdom Section Report on UK Home Office "Safe Third Country" Practice', 7 IJRL 606 (1995).
25. European Council on Refugees and Exiles (ECRE) 'Safe Third Countries Myths and Realities' London (February 1995): 10-12; Dunstan, R., 'Playing Human Pinball' above note 24. Amnesty International has suggested that before sending an asylum seeker back States should (1) identify the third country they consider to be ultimately responsible for examining the substance of the asylum claim, (2) ensure that, in general terms, that country is indeed safe; and (3) seek and obtain from the authorities of that country assurances that the individual in question will indeed be re-admitted to that country and will have there an effective opportunily to seek and, if appropriate, obtain asylum.
26. European Council on Refugees and Exiles (ECRE) 'Safe Third Countries Myths and Realities' London (February 1995): 10-12; Dunstan, R., 'Playing Human Pinball' above note 24. Amnesty International has suggested that before sending an asylum seeker back States should (1) identify the third country they consider to be ultimately responsible for examining the substance of the asylum claim, (2) ensure that, in general terms, that country is indeed safe; and (3) seek and obtain from the authorities of that country assurances that the individual in question will indeed be re-admitted to that country and will have there an effective opportunily to seek and, if appropriate, obtain asylum.
27. See Marx, R., 'Non-Refoulement, Access to Procedures, and Responsibility for Determining Refugee Claims,' 7 IJRL 395 (1995).
28. U.S. Committee for Refugees, 'The Politics of Containment: Asylum in Europe and its Global Implications,' World Refugee Survey (1994), 24; European Council on Refugees and Exiles 'Safe Third Country, Myths and Realities,' (Feb. 1995); Vierdag, E., 'The Country of First Asylum: Some European Aspects' in The New Asylum Seekers: Refugee Law in the 1980s. Ed. David A. Martin, Netherlands (1988).
29. U.S. Committee for Refugees, 'The Politics of Containment: Asylum in Europe and its Global Implications,' World Refugee Survey (1994), 24; European Council on Refugees and Exiles 'Safe Third Country, Myths and Realities,' (Feb. 1995); Vierdag, E., 'The Country of First Asylum: Some European Aspects' in The New Asylum Seekers: Refugee Law in the 1980s. Ed. David A. Martin, Netherlands (1988).
30. U.S. Committee for Refugees, 'The Politics of Containment: Asylum in Europe and its Global Implications,' World Refugee Survey (1994), 24; European Council on Refugees and Exiles 'Safe Third Country, Myths and Realities,' (Feb. 1995); Vierdag, E., 'The Country of First Asylum: Some European Aspects' in The New Asylum Seekers: Refugee Law in the 1980s. Ed. David A. Martin, Netherlands (1988).
31. See Fortress Europe? Circular Letter 31 (Feb. 1995), 8. Estonia, Latvia, and Lithuania acceded to the 1951 Convention/1967 Protocol in 1997. Lithuania received nearly two million US$ from the Nordic countries, UNHCR and the International Organization for Migration for the implementation of an effective refugee policy. In 1996, the U.S. Committee for Refugees reported that these countries made no distinction between asylum seekers and illegal migrants, and sought to stop the entry of asylum seekers by jailing them on charges of illegal entry: World Refugee Survey (1996).
32. See Fortress Europe? Circular Letter 31 (Feb. 1995), 8. Estonia, Latvia, and Lithuania acceded to the 1951 Convention/1967 Protocol in 1997. Lithuania received nearly two million US$ from the Nordic countries, UNHCR and the International Organization for Migration for the implementation of an effective refugee policy. In 1996, the U.S. Committee for Refugees reported that these countries made no distinction between asylum seekers and illegal migrants, and sought to stop the entry of asylum seekers by jailing them on charges of illegal entry: World Refugee Survey (1996).
33. Migration News Sheet has reported the comments of a Danish Immigration Service Legal Department Official who was told by Lithuanian officials that they take advantage of every opportunity to expel asylum seekers who enter the country illegally, they believe that by entering the country illegally, such asylum seekers violate Lithuanian laws and are therefore unlikely to qualify for refugee status. Migration News Sheet (October 1996), 9. This is a clear violation of the spirit of the 1951 Convention because people fleeing persecution are rarely able to obtain a valid passport or visa.
34. UNHCR, Asylum in Europe: http://www.unhcr.ch/pubs/rm101/rm10102.htm
35. UK Delegation, Geneva, 'Sending Asylum Seekers to Safe Third Countries,' 7 IJRL 119 (1995).
36. Mr Yavuzalp (Turkey): UN doc. A/AC.96/SR.418, para. 74 (1987).
37. Hathaway has rightly said: 'This blunt assault by the North on refugee migration has reinforced the confinement of most of the world's refugees to their regions of origin in the South. Africa shelters more than double the number of refugees protected in all of Europe . . . Southern governments are increasingly turning away from traditions of hospitality toward refugees. While they normally lack the resources and sophisticated border control systems used by the North to enforce non-entrée, the governments of less developed countries have coerced refugees to return to their countries of origin. Some also engage in absolutely blunt denials of access, such as last year's decision by Zaire simply to close its border to Rwandan refugees.' 'Can International Refugee Law Be Made Relevant Again?' U.S. Committee for Refugees, World Refugee Survey (1996), 16-17.
38. Report published by Amnesty International United Kingdom (1995). There is a short version in Dunstan, R., 'Playing Human Pinball', above note 24. In a 1993 report Amnesty International reported, among others, the cases of Colombian asylum seekers who, after being returned from the UK to Spain on safe third country grounds, were summarily expelled to Colombia without any examination of their asylum claim by the Spanish authorities. In Passing the buck: deficient Home Office practice in 'safe third country' asylum cases (July 1993). Also reported is the case of a Sri Lankan asylum seeker who, after being returned by the UK to Italy on safe third country grounds, was expelled to Thailand, where he was imprisoned.
39. Report published by Amnesty International United Kingdom (1995). There is a short version in Dunstan, R., 'Playing Human Pinball', above note 24. In a 1993 report Amnesty International reported, among others, the cases of Colombian asylum seekers who, after being returned from the UK to Spain on safe third country grounds, were summarily expelled to Colombia without any examination of their asylum claim by the Spanish authorities. In Passing the buck: deficient Home Office practice in 'safe third country' asylum cases (July 1993). Also reported is the case of a Sri Lankan asylum seeker who, after being returned by the UK to Italy on safe third country grounds, was expelled to Thailand, where he was imprisoned.
40. Austria denies the opportunity to asylum seekers to rebut the presumption that a country would be safe for him or her as an individual if returned there. Moreover, questions such as whether the asylum seeker will be admitted to the asylum procedure in the third country and afforded protection are ignored. According to the UNHCR, Austria determines the safety of a country solely by the presence of the UNHCR in that country. U.S. Committee for Refugees, World Refugee Survey (1996), 125-6. Also it has been reported that the Austrian government has removed asylum seekers to Saudi Arabia, which is not a party to the 1951 Geneva Convention or the 1967 Protocol and has not enacted refugee legislation or adopted policies concerning the grant of asylum.
41. Dunstan, R., 'Playing Human Pinball', above note 24, says that under the procedures established by the Asylum and Immigration Appeals Act 1993, all unsuccessful applicants (including those refused on safe third country grounds) have a right of appeal to the Immigration Appeals Authority. The appeal is then heard by a single Special Adjudicator (who must hear and determine the appeal within 42 days). 'If the appeal is dismissed by the Special Adjudicator there is a further right of appeal, subject to leave and on a point of law only, to a three-member Immigration Appeals Tribunal.'
42. 189 UNTS 2545.
43. The Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees. Ad Hoc Committee on Statelessness and Related Problems. Summary Record of the Twentieth Meeting, UN doc E/AC.32/SR.20 (1950), 11-12.
44. United Nations General Assembly, 10 Dec. 1948, UN Doc. A/810. The UN General Assembly has on several occasions urged States to treat new refugee situations in accordance with the principles and spirit of the Declaration on Territorial Asylum and the Universal Declaration of Human Rights.
45. Council of Europe. Committee of Experts for the Promotion of Education and Information in the Field of Human Rights. Strasbourg (30 November 1989), 2.
46. Goodwin-Gill, G.S., The Refugee in International Law, 2nd ed., Clarendon, Oxford (1996), 167.
47. Marx, R., 'Non-Refoulement, Access to Procedures, and Responsibility for Determining Refugee Claims,' 7 IJRL 394 (1995).
48. Hyndman, P., 'The 1951 Convention and Its Implications for Procedural Questions', 6 IJRL 252 (1994).
49. Robinson, N., Convention Relating to the Status of Refugees. Its History, Contents and Interpretation. Institute of Jewish Affairs, New York (1953), 161-3.
50. In this regard, art. 32 of the 1969 Vienna Convention on the Law of Treaties allows for recourse to 'supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 [that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty] and where the terms of the document are ambiguous and obscure; or leads to a result which is manifestly absurd or unreasonable.'
51. Mr Justice Blackmun, 'The Haitian Refoulement Case: Dissenting Opinion', 6 IJRL 75 (1994).
52. Grahl-Madsen, for one, has suggested stricter interpretations of art. 33 CSR51: 'Article 33 only prohibits the expulsion or return (refoulement) of refugees to territories where they are likely to suffer persecution.' See Grahl-Madsen, A., The Status of Refugees in International Law, Leyden: A.W. Sijthof, vol. 2, 1972, 94.
53. Allewedt, R., 'Protection against Expulsion under Article 3 of the European Convention on Human Rights', 4 EJIL 373 (1993).
54. Office of the United Nations High Commissioner For Refugees, 'The Haitian Interdiction Case 1993. Brief amicus curiae,' 6 IJRL 86-7 (1994). The parties to the Convention have undertaken to cooperate with either the High Commissioner or such other succeeding UN agency in the exercise of the functions assigned by the General Assembly relating to the protection of refugees and, in particular, to facilitate the High Commissioner's duty to supervise the application of the Convention.
55. The Executive Committee of the High Commissioner's Programme comprises representatives from 54 States.
56. UNHCR Executive Committee, Conclusion No. 58 (1989), on irregular movements.
57. 'The 44th Session of the UNHCR Executive Committee: A View from the Side. Developments,' 6 IJRL 65 (1994).
58. Ibid.
59. Sztucki, J., 'The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Program,' 3 IJRL 308 (1989).
60. Ibid., 312.
61. Ibid., 63. For example, Turkey requested that the Conclusion not apply to refugees and asylum seekers who are in transit in another country. In this case, asylum seekers trying to reach some European countries, but who pass through Turkey can be sent back to Turkey. Turkey, may send them back to the country where they face persecution because they have only passed in transit through its territory. See Interpretative declarations or reservations relating to the Conclusions and Decisions of the Committee, UN doc. A/AC.96/737 at 23.
62. Goodwin-Gill, G.S., The Refugee in International Law, Clarendon Press, Oxford (1996), 128.
63. Marx, R. & Lumpp, K., 'The German Constitutional Court's Decision of 14 May 1996 on the Concept of "Safe Third Countries" - A Basis for Burden-Sharing in Europe?', 8 IJRL 419 (1996).
64. Office of the United Nations High Commissioner for Refugees, 'The Haitian Interdiction Case 1993. Brief amicus curiae', 6 IJRL 86-7 (1994).
65. In theory some third countries might be safe with all of the 'certainty', however, in practice asylum seekers might still be sent back to the country of origin. An interesting case is the so-called safely of Greece and Turkey. According to the recent German Constitutional Court Decision safe third countries must have ratified the 1951 Geneva Convention without any geographical limitation to article 1. Thus, Turkey, which has made geographical reservations, can not be considered safe. Turkey is extremely important because refugees fleeing from Iran and Afghanistan usually travel through Turkey before reaching Greece, the first EU State. From Greece they travel to other European countries, which, in turn, return them to Greece because, according to the Dublin and Schengen Conventions, it is the country responsible for the asylum claim.
66. Marx, R. & Lumpp, K., 'The German Constitutional Court's Decision of 14 May 1996', above note 58.
67. 'Council of Europe Meeting on Migration Issues,' International Organisation for Migration (IOM) News (September/October 1996), 11.
68. See 'Working Paper on Readmission Agreements,' Secretariat of the Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (Aug. 1994).
69. High Administrative Court (VGH) of Baden-Württemberg, 16 Sept. 1996 (AZ: A 12 S 2759/ 95): See Migration News Sheet (Oct. 1996).
70. See UNHCR 'Asylum in Europe' Refugees 101: III (1995), 13.
71. Ibid.
72. UNHCR Press Release, 1 Dec. 1994, and UNHCR Position on Standard Bilateral Readmission Agreements Between A Member State and a Third Country, Dec. 1994.
73. The only safeguard against return is if a member of the applicant's family has been recognized as a Convention refugee and is legally resident in the country of destiny. 'Family member' is a very narrow concept as it includes only spouses and children under eighteen years of age, in addition to parents if the asylum seeker is under eighteen years of age and unmarried. See Dublin Convention, article 4. The European Council on Refugees and Exiles (ECRE) has a 'Provisional Report on the Safe Third Country Monitoring Project', London, 1994, which describes several cases of asylum seekers being transferred from one country to another without any consideration for the family ties they had with the country chosen.
74. See Albuquerque-Abell, N., 'Safe Country Provisions in Canada and in the European Union: A Critical Assessment,' 31 International Migration Review (1997).
75. Joly, D., Refugees: Asylum in Europe?, Minority Rights Publication (1992), 121.
76. See The State of The World's Refugees (1993); and Vierdag. E.W. 'The Country of First Asylum: Some European Aspects.' in David Martin, ed., The New Asylum Seekers: Refugee Law in the 1980s, Nijhoff, Netherlands (1988), 80-1.
77. See The State of The World's Refugees (1993); and Vierdag. E.W. 'The Country of First Asylum: Some European Aspects.' in David Martin, ed., The New Asylum Seekers: Refugee Law in the 1980s, Nijhoff, Netherlands (1988), 80-1.
78. See Hailbronner, K., 'The Concept of "Safe Country" and Expeditious Asylum Procedures,' 5 IJRL 58-9 (1993); Melander, G., 'Refugees in Orbit', 16 AWR Bull. (1978), 60.
79. See Hailbronner, K., 'The Concept of "Safe Country" and Expeditious Asylum Procedures,' 5 IJRL 58-9 (1993); Melander, G., 'Refugees in Orbit', 16 AWR Bull. (1978), 60.
80. Goodwin-Gill, G.S., The Refugee in International Law, Clarendon, Oxford (1996), 152.
81. See UNHCR, 'The Concept of Protection Elsewhere', 7 IJRL. 123 (1995).
82. Currently, States like Norway, Austria, and Germany will return asylum seekers to transit countries based on any physical presence, no matter how brief.
83. The Collected Travaux préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees. United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons 2-25 July 1951, Geneva. Summary Record of the Fourteenth Meeting Vol. III: 321-9, and Summary Record of the Thirty-Fifth Meeting: 566-71.
84. The Collected Travaux préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees. United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons 2-25 July 1951, Geneva. Summary Record of the Fourteenth Meeting Vol. III: 321-9, and Summary Record of the Thirty-Fifth Meeting: 566-71.
85. Hathaway, J., The Law of Refugee Status, Butterworths (1991), 46-50.
86. Vierdag, E.W., 'The Country of "First Asylum": Some European Aspects.' In The New Asylum Seekers: Refugee Law in the 1980s. Ed. David A. Martin, Netherlands (1988): 80-1.
87. Tade Akin Aina says that colonial ties can effectively be examined along several lines which include labour and production, commerce, administration and politics, culture and language, military contacts, urbanisation and social change. International Migration In and From Africa: Dimensions, challenges and prospects. Ed. by Aderanti Adepoju and Thomas Hammar, Population, Human Resources and Development in Africa (PHRDA), Dakar (1996).
88. Federal Court of Appeal Decision A-1265-87.
89. Barsky, R., 'Arguing the American Dream à la Canada: Former Soviet Citizens Justification for their Choice of Host Country,' 8 JRS 126-8 (1995).
90. This same point of view was expressed at the aborted 1977 United Nations Conference on Territorial Asylum. One of the articles proposed that 'asylum should not be refused by a contracting State solely on the ground that it could be sought from another State . . . where it appears that a person requesting asylum already has a connection or close links with another State, the contracting State may, if it appears fair and reasonable, require the asylum seeker first to request asylum from that State.'
91. Hathaway, Refugee Status, above note 77, 46.
92. S.46.03(1)(b) and s.14(1)(c) of the Canadian Immigration Act contain safeguards that allow claimants who have been sent to safe third countries to return to Canada to recommence his or her claim, if the prescribed country does not grant the claimant lawful permission to stay.
93. Report of the Sub-Committee of the Whole on International Protection: UN doc. A/AC.96/ 802, 6 Oct. 1992.
94. Fortress Europe? Circular Letter 30 (Dec. 1994/Jan. 1995).
95. 'The refoulement of refugees must not be allowed to occur under any circumstances.' Mr Ceska (Austria): UN doc. A/AC.96./SR.439, para. 8 (1989).
96. See United Nations High Commissioner for Refugees 'Asylum in Europe' Refugees 101: III (1995): 7.
97. In the Netherlands, for example, which was considered a model of liberty and flexibility, following the introduction of restrictive asylum legislation by Germany, the number of asylum seekers had almost doubled to 55,000 in 1994. Unwilling to welcome all asylum seekers, the Netherlands finally adopted restrictive refugee determination procedures in 1995.
98. See The Council of State of the Netherlands. W02.91.0018 (8 Apr. 1991).
99. European Council on Refugees and Exiles 'Safe Third Countries myths and realities' London (Feb. 1995), 4.
100. Mr Ceska (Austria): UN doc. A/AC.96./SR.439, para. 8 (1989).