Responsibility sharing or shifting? "Safe" third countries and international law

Refuge

Volumn 25, Issue 2, 2008, Pages 64-78

  Foster, Michelle ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

BORDER REGION; IMMIGRATION POLICY; INTERNATIONAL LAW; LEGISLATIVE IMPLEMENTATION; POLICY DEVELOPMENT; REFUGEE;

AUSTRALIA; CANADA; EUROPE; UNITED STATES;

EID: 77955729772     PISSN: 02295113     EISSN: None     Source Type: Journal    
DOI: 10.25071/1920-7336.26032     Document Type: Article

References (128)

1. It should be noted that some of the key ideas in this paper draw upon and develop further the analysis set out in Michelle Foster, "Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State" (2007) 28:2 Mich. J. Int'l L. 223; and "Colloquium, The Michigan Guidelines on Protection Elsewhere" (2007) 28 Mich. J. Int'l L. 207 [Michigan Guidelines].
2. Stephen H. Legomsky, "Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection" (2003) 15 Int'l J. Refugee L. 567 at 570-1.
3. Article4,online: (date accessed: 22 January 2009).
4. Indeed, this is often the purported purpose of these schemes. For example, the Regulatory Impact and Analysis Statement accompanying the Canadian Regulations states that the STCA reflects a "widespread and growing international consensus that no refugee receiving country can, on its own, solve the refugee problems of the world. International obligations necessitate a sharing of responsibility": Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe v. R. [2007] EC. J. No. 1583; 2007 FC 1262 [Canadian Council of Refugees v. R.] at para. 30.
5. European Parliament resolution of 2 September 2008 on the evaluation of the Dublin system (2007/2262 (INI)) at paragraph M. The Resolution further notes that "a correct implementation of the Dublin Regulation may well result in the unequal distribution of responsibility for persons seeking protection, to the detriment of some Member States particularly exposed to migration flows simply on the grounds of their geographical location" (para. H); that "the Commissions evaluation reveals that, in 2005, the thirteen Member States at the borders of the Union had to deal with increasing challenges raised by the Dublin system" (para. I); and that "southern Member states are having to accept asylum applications from irregular immigrants without any assistance from third countries which are obliged to provide such assistance under international law" (para. K).
6. European Council on Refugees and Exiles (ECRE), Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered (March 2008) at 13, online: (date accessed: 16 January 2009).
7. There are now several EU directives on various aspects of refugee law: see for example Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (Reception Directive); Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Qualification Directive); and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Procedures Directive).
8. United Nations High Commissioner for Refugees, 2005 Global Refugee Trends (2006), online: (date accessed: 22 January 2009). For similar figures in respect of Iraqi applicants, see UNHCR, Asylum in the European Union: A Study of the Implementation of the Qualification Directive, (November 2007) [UNHCR 2007] at 13, online: (date accessed: 23 January 2009).
9. This was also recognized in the European Parliament's Resolution, supra note 5 at para. P: "whereas recognition rates of candidates for refugee status vary for certain third country nationals from approximately 0% to 90% within Member States."
10. There is a considerable body of literature concerned with the deficiencies of the US system in this context: see for example Audrey Macklin, "Disappearing Refugees: Reflections on the U.S.-Canada Safe Third Country Agreement" (2004-2005) 36 Colum. H.R.L. Rev. 365;
11. Andrew F. Moore, "Unsafe in America: A Review of the U.S.-Canada Safe Third Country Agreement" (2007) 47 Santa Clara L. Rev. 201;
12. Amy K. Arnett, "One Step Forward, Two Steps Back: Women Asylum-Seekers in the United States and Canada Stand to Lose Human Rights under the Safe Third Country Agreement" (2005) 9
13. Lewis & Clark L. Rev. 951;
14. Lynn S. Hodgens, "Domestic Silence: How the U.S.-Canada Safe Third Country Agreement Brings New Urgency to the Need for Gender based Asylum Regulations" (2006) 30 Vt. L. Rev. 1045;
15. Cara D. Cutler, "The U.S.-Canada Safe Third Country Agreement: Slamming the Door on Refugees" (2004) 11
16. ILSA J. Int'l & Comp. L. 121; Sonia Akibo-Betts, "The Canada-U.S. Safe Third Country Agreement: Reinforcing Refugee Protection or Putting Refugees at Risk" (2006) J. Inst. Just. Int'l Stud. 1; and Lara Sarbit, "The Reality Beneath the Rhetoric: Probing the Discourses Surrounding the Safe Third Country Agreement" (2003) 18 J.L. & Soc. Pol'y 138.
17. Canadian Council of Refugees v. R., supra note 4 at para. 81. It should be noted that the arguments concerning compliance of the scheme with Canada's Charter of Rights and Freedoms will not be considered in this article.
18. Ibid.
19. It should be noted that an application seeking leave to appeal against the decision of the Federal Court of Appeal was lodged in the Canadian Supreme Court on 26 September 2008. It should also be noted that the Canadian Council for Refugees et al. have instituted a complaint in the Inter-American Commission on Human Rights concerning the STCA, and the case has been found admissible: see John Doe et al. v. Canada Report No 121/06 2006 IACHR 240, 2006 WL 4557625 (OAS), 27 October 2006.
20. See R. v. Canadian Council for Refugees, Canadian Council of Churches, Amnesty International and John Doe [2008] F.C.J. No. 1002; 2008 FCA 229 at para. 2, per Noel J.A., with whom Richard C.J. agreed (R. v. Canadian Council for Refugees Appeal Decision).
21. Ibid, at paras. 76-80.
22. The only reference to a substantive issue is at para. 81 of Justice Noel's judgment (ibid.), where he states that, "I should add as an aside that even if "actual compliance" was a condition precedent, the conclusion reached by the Applications judge to the effect that the U.S. did not meet that requirement at the time of promulgation could not stand since it is largely based on evidence which postdates the time of the designation... ." Again however this does not call into question Justice Phelans assessment that, at the time of judgment, the STCA did not comply with Canada's international obligations under Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture (CAT).
23. Vienna Convention on the Law of Treaties, Vienna, 23 May 1968, 1155 U.N.T.S. 331, Article 31 (entered into force 27 January 1988) [VCLT].
24. R. v. Canadian Council for Refugees Appeal Decision, supra note 14 at para. 114.
25. Ibid.
26. See generally, James C. Hathaway, The Rights of Refuges under International Law (Cambridge: Cambridge University Press, 2005).
27. See Foster, supra note 1, 231-235.
28. VCLT, supra note 17, Article 31.
29. Hathaway, supra note 20, 659-694.
30. Ibid.
31. Canadian Council of Refugees v. R., supra note 4, para. 137 (c).
32. Regina (exparte Yogathas) v. Secretary of State for the Home Department [2003] 1 A.C. 920, cited in Canadian Council of Refugees v. R., supra note 4 at para. 125.
33. Affidavits of James C. Hathaway and Kay Hailbronner, file IMM-7818-05, on file with author.
34. For example, in James C. Hathaway s affidavit, he summarizes the other expert affidavits filed in these proceedings which suggest "several laws or practices of the United States which may deprive refugees of acquired rights in relevant cases," including Article 3, Article 25, Article 31(1), Article 31 (2), and Article 34: see at para. 21 of affidavit, on file with author. It should be noted that Justice Phelan did consider the issues of detention and access to counsel, but only as they related to the risk of refoulement, discussed below.
35. Secton 102(l)(a) of the Immigration and Refugee Protection Act (IRPA) provides that the Governor-in-Council may designate a country as being subject to s. 101(l)(e) (which renders a claim ineligible where a person came directly or indirectly to Canada from that country) where the country complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture. In deciding to designate a country, the GIC is required to consider four factors in 102(2) including (c) its human rights record, but the inquiry still appears to be focused on compliance with Article 33.
36. See Michigan Guidelines, supra note 1 at para. 8.
37. NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at para. 31.
38. It should be noted that the legislation (Migration Act 1958 (Cth)) has been amended several times subsequent to this decision, so there is little interesting case law that has sought to develop this further.
39. T.I.. v. The United Kingdom, 2000-III Eur. Ct. H.R. 435, 456-57: "Where States establish international organizations or mutatis mutandis international agreements to pursue cooperation in certain fields of activity there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the [European] Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution."
40. Council of Europe: Parliamentary Assembly, Resolution 1569 (2007) on Assessment of Transit and Processing Centres as a Response to Mixed Flows of Migrants and Asylum Seekers, 1 October 2007. Res. 1569 (2007) at para. 13.6.
41. Erika Feller, "Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come" (2006) Int'l J. Refugee L. 510, 529.
42. Foster, supra note 1 at 270.
43. I am grateful to Martin Jones for his insights on this point based on a paper he presented on the panel, Protection Elsewhere: The Challenges and Opportunities for International Refugee Protection, at 12th International Metropolis Conference, Migration, Economic Growth and Social Cohesion, 8-12 October 2007, Melbourne, Australia.
44. Katarzyna Grabska, "Brothers or Poor Cousins? Rights, Policies and the Well-being of Refugees in Egypt," in Katarzyna Grabska and Lyla Mehta, eds., Forced Displacement: Why Rights Matter (Hampshire: Palgrave MacMillan 2008) at 77.
45. Ibid, at 82-3.
46. Ibid, at 83.
47. I note that although Israel's "hot returns" policy to Egypt was temporarily suspended in late 2007, on 23 August 2008, Israel resumed summarily returning asylum seekers to Egypt: see Amnesty International, "Israel/Egypt: At least 91 asylum-seekers and migrants from sub-Saharan Africa," AI Index: MDE 15/038/2008 03 September 2008, online: (date accessed: 23 January 2009).
48. See Achilles Skordas and Nicholas Sitaropoulos, "Why Greece Is Not a Safe Host Country for Refugees" (2004) 16:1 Int'l J. Refugee L. 25.
49. UNHCR, UNHCR Position on the Return of Asylum-Seekers to Greece under the "Dublin Regulation" (15 April 2008) at 1 [UNHCR 2008], online: (date accessed: 23 January 2009).
50. nd September on the evaluation of the Dublin system (2007/2262 (INI)) at para. E: "whereas some Member States do not apply the Reception Directive effectively, either to asylum applicants awaiting transfer to another Member State under the Dublin Regulation, or at the point of return to the Member State responsible."
51. Commission of the European Communities v. Hellenic Republic, Case C-72/06, Judgment of the Court (Fifth Chamber) of 19 April 2007.
52. This is because the Reception Directive (supra note 7) sets out minimum standards that in some respects fall below that required by international law. For example, Article 13(2) provides that "Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence," which is arguably a lower standard than that required by Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICE-SCR).
53. See also Article 10 of the Reception Directive, which states that education can be delivered in accommodation centres and thus is only required to be delivered "under similar conditions" as nationals, which may well constitute a lower standard than that required by Article 13 of the ICESCR; and see also Article 15 of the Reception Directive which only requires states to ensure "that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness," compared with Article 12 of the ICESCR.
54. "Sweden halts return of child asylum seekers to Greece," TT/The Local: Sweden's news in English (7 May 2008), online: (date accessesd: 25 September 2008);
55. see also Human Rights Watch, Stuck in a Revolving Door: Iraqis and other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union (26 November 2008) at 21, online: (date accessed: 16 January 2009).
56. VG Giessen 2 L 201 /08.GI. A (25 April 2008), trans, by Anne Kallies.
57. VG Hamburg AE 368/08 (21 August 2008), trans, by Anne Kallies.
58. UNHCR 2008, supra note 43 at para. 21.
59. Ibid, at paras. 20-22.
60. See Foster, supra note 1 at 275-278.
61. Ibid.
62. R (Limbuela) v. Secretary of State for the Home Department [2006] 1 A.C. 396 at para. 7.
63. Ibid, at para. 56; see also at para. 69 per Lord Scott. It should be noted that there is related jurisprudence concerning states' implied non-refoulement obligations as they pertain to violations of socio-economic rights which apply other than in the context of refugees. In such cases, both the House of Lords and European Court of Human Rights have applied a higher test for finding that transfer is prohibited where the suffering in the country of return would be a result of that country's inability to provide basic socio-economic rights to its citizens rather than unwillingness (see N (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) [2005] UKHL 31;
64. N v. The United Kingdom, European Court of Human Rights, Application No. 26565/05, Strasbourg, 27 May 2008). However the line of reasoning in Limbuela is more applicable to the present discussion since the harm faced by refugees in some "safe third countries" is clearly the result of intentional deprivation of socio-economic rights along the same lines as that at issue in Limbuela.
65. See for example C. v. Australia (900/1999), ICCPR, A/58/40 vol. II (28 October 2002) 188 (CCPR/C/76/D/900/1999);
66. Williams v. Jamaica (609/1995), ICCPR, A/53/40 vol. II (4 November 1997) 63 (CCPR/C/61/D/609/1995);
67. Smith and Stewart v. Jamaica (668/1995), ICCPR, A/54/40 vol. II (8 April 1999) 163 (CCPR/C/65/D/668/1995); and Rouse v. The Philippines (1089/2002), ICCPR, A/60/40 vol. II (25 July 2005) 123. For similar jurisprudence in the European Court of Human Rights see Kalashnikov v. Russia, European Court of Human Rights, Application no. 47095/99.
68. Committee on the Rights of the Child, General Comment No. 6 (2005), Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6 (1 September 2005) at para. 27.
69. See generally, Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge: Cambridge University Press, 2007), especially at 201-235 [Foster, Refuge from Deprivation).
70. UNHCR, UNHCR's Views on the Concept of Effective Protection as it Relates to Indonesia (2 December 2004; on file with author).
71. Ibid.
72. See generally, Foster, Refuge from Deprivation, supra note 58.
73. UNHCR 2008, supra note 43 at para. 18. A similar case was put forward in the Canadian litigation, in that the applicants asserted that the policy of detaining some asylum seekers and also the failure to provide legal counsel to refugee claimants aggravated the risk of refoulement. Justice Phelan dismissed these claims, not on the basis that they were incapable of validity in law, but rather that there was no evidential basis to support them: see Canadian Council of Refugees v. R., supra note 4 at paras. 228-236.
74. ECRE, supra note 6 at 18.
75. See for example, R. v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 per Lord Bridge of Harwich at 532D; R. v. Secretary of State for the Home Department, ex parte Yogathas [2002] 4 All ER 800. This was also accepted by all parties in the Canadian litigation: as Justice Phelan noted this is consistent with the Suresh decision of the Canadian Supreme Court;
76. see Canadian Council of Refugees v. R., supra note 4 at para. 112. This was also expliciüy accepted by Evans J.A. in the Federal Court of Appeal: see R. v. Canadian Council for Refugees Appeal Decision, supra note 14 at para. 123.
77. For an excellent analysis of the requirements of international law, see Gerald P. Heckman, "Canada's Refugee Status Determination System and the International Norm of Independence" (2008) 25:2 Refuge 79.
78. Erika Feller (Director, Department of International Protection, UNHCR) presentation (at the IARLJ World Conference, Judicial or Administrative Protection: Legal Systems within the Asylum Processes. Stockholm, 21 April 2005), online: (date accessed: 30 September 2008).
79. See also Global Consultations on International Protection, Asylum Processes (Fair and Efficient Asylum Procedures), EC/GC/01/12, 31 May 2001 at 13; para. (o).
80. Ibid, at 13; para. (p).
81. UNHCR 2007, supra note 8 at 34.
82. UNHCR 2007, supra note 8 at 13-14.
83. Ibid, at 32.
84. I note that the relevance of the views of the UNHCR was a contentious issue in the US-Canada STCA litigation because the UNHCR had consistently stated that the US was a "safe third country." Justice Phelan was correct to undertake his Honours own assessment of this question, as a state cannot rely on the UNHCR alone.
85. See Michael Kagan, "Frontier Justice: Legal Aid and UNHCR Refugee Status Determination in Egypt" (2006) 19:1 Journal of Refugee Studies 45 at 48.
86. Richard Towle and Richard Stainsby, "Best Practices for Refugee Status Determination: A UNHCR Global Perspective" (Paper presented at the conference Best Practices for Refugee Status Determination, Monash University and Université de Montreal, Prato Centre, Italy, 29-30 May 2008), slides on file with author.
87. See RSD Watch, "UNHCR recognition rates rise in the wake of new standards" (24 July 2008), online: (date accesssed: 1 October 2008); and RSD Watch, "Large UNHCR RSD operations will give detailed written reasons for rejection to asylum-seekers denied protection" (29 September 2008), online: (date accessed: 1 October 2008).
88. This is particularly an issue when the sending state has itself set up an inferior refugee status determination procedure in the third state, such as occurred in the context of Australia's "Pacific Solution": see Savitri Taylor, "Protection Elsewhere/Nowhere" (2006) 18 Int'l J. Refugee L. 283;
89. and Susan Kneebone, "The Pacific Plan: The Provision of 'Effective Protection?"' (2006) 18 Int'l J. Refugee L. 696.
90. This has been noted as an issue of concern recently by the European Parliament in the context of the Dublin system: "whereas there is evidence that some Member States do not guarantee effective access to a procedure for determining refugee status": supra note 5 at para. D.
91. Decision No 162.040 of 28 August 2006; trans, by Nawaar Hassan.
92. Michigan Guidelines, supra note 1.
93. R. (exparte Adan) v. Secretary of State for the Home Department [2001] 2 A.C. 477; (2001) 2 W.L.R. 143 at 154 (per Lord Steyn) [Adan].
94. R. (Yogathas) v. Secretary of State for the Home Department [2003] 1 A.C. 920 at para. 9 [Yogathas].
95. Canadian Council of Refugees v. R., supra note 4 at para. 137.
96. T.I. v. The United Kingdom, supra note 33, as cited in Yogathas, supra note 81 at para. 54.
97. Canadian Council of Refugees v. R., supra note 4 at paras. 165-196 (exclusion) and paras. 197-216 (inclusion clause).
98. UNHCR 2007, supra note 8 at 42-46.
99. Ibid, at 47-52.
100. Ibid, at 90-95.
101. See generally Yogathas, supra note 81; and T.I. v. The United Kingdom, supra note 33.
102. Yogathas supra note 81 at para. 9 (per Lord Bingham).
103. This was emphasized recently by the UK Court of Appeal in Secretary of State for the Home Department v. Nasseri [2008] EWCA 464 where Lord Justice Laws stated "it is underlined by the need of rigorous scrutiny where an individual claims that expulsion will expose him to Article 3 ill treatment": at para. 18.
104. Yogathas, supra note 81 at para. 58 (per Lord Hope).
105. R. v. Canadian Council for Refugees Appeal Decision, supra note 14 at para. 130.
106. Ibid, at para. 123.
107. Ibid.
108. Ibid., relying on Singh v. Minister of Employment and Immigration [1985] 1 SCR 177.
109. See Canadian Council of Refugees v. R., supra note 4 at para. 34 (Phelan J.). Once a CBSA officer decides that a person is ineligible to be referred to the IRB, a removal order is issued which is most often carried out on the same day.
110. R. v. Canadian Council for Refugees Appeal Decision, supra note 14 at para. 125.
111. See UNHCR, "The Dublin II Regulation: A UNHCR Discussion Paper" (April 2006) at 19-20; online: (date accessed: 24 January 2009). The European Parliament has similarly asked the European Commission "to amend Articles 19 and 20 of the Dublin Regulation on 'taking charge and taking back', so as to provide applicants with an automatic suspensory right of appeal against a decision to transfer responsibility to another Member State under the Dublin Regulation.": Resolution of 2 September at para. 10;
112. see also Legomsky, supra note 2 at 672; and ECRE, supra note 6 at 166.
113. In Yogathas, Lord Hope made it clear that integral to his decision to allow return to Germany was the fact that the Secretary of State was "able to show that he based his decision on a state of knowledge resulting from his own inquiries as to the practice in Germany and from his experience of constantly monitoring the performance by member states of their obligations in similar cases": supra note 81 at para. 47.
114. Canadian Council of Refugees v. R., supra note 4 at para. 274. These comments were made in the context of his Honour's assessment of whether the Canadian government had conducted required reviews under subsection 102(3) of the IRPA, which provides that: "The Governor-in-Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country": see ibid, at para. 265. Since there had been no such review as at the date of judgment, Phelan J. held that the GIC had failed to ensure the continuous review of the s. 102(2) factors: see at para. 275. While this finding was overturned by the Federal Court of Appeal (see R. v. Canadian Council for Refugees Appeal Decision, supra note 14 at para. 97 per Noel J.A. with whom Richard C.J. agreed; Evans J.A. not considering), this does not detract from Phelans explanation of the need for and importance of ongoing review.
115. UN Human Rights Committee, Concluding Observations: Sweden, at para. 79 (12)(b), UN Doc A/57/40, 57, vol I (2002).
116. Ibid, at para. 11.5.
117. Ibid.
118. Foster, supra note 1 at 284-5.
119. Michigan Guidelines, supra note 1 at para. 15.
120. See letter from Amnesty International's EU Office to Mr. Dragutin Mate, Minister of the Interior, EU Presidency (8 March 2008), on file with author. According to ECRE, supra note 6, details of the action against Greece have not been made public, but it is understood to relate to "the lack of legal guarantees with regard to a substantive examination of the asylum claim by Greek authorities after transfer to Greece" at 14.
121. See "A gamble with the right of asylum in Europe: Greek policy and the Dublin II regulation," Report by NOAS, Norwegian Helsinki Committee and Greek Helsinki Monitor (9 April 2008), online: (date accesssed 2 October 2008). Human Rights Watch reports that Finland has announced that it "would suspend transferring migrants to Greece unless it received written assurances from Greece that they would be fairly processed" (supra note 47 at 21); however it is unclear whether such assurances have or have not been granted.
122. See Foster, supra note 1 at 285.
123. In all of these cases, the test is said to be one of forseeability; viz: "The forseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later on": Kindier v. Canada, Human Rights Committee Communication No. 470/1991; CCPR/C/48/D/470/1991 30 July 1993 at para. 6.2.
124. "If a person is lawfully expelled or extradited, the State party concerned will not generally have responsibility under the Covenant for any violations of that person's rights that may later occur in the other jurisdiction. In that sense a State party clearly is not required to guarantee the rights of persons within another jurisdiction: Kindier, ibid, at para. 6.2. Further, the principles of state responsibility regarding reparation do not accommodate this situation very well because they only envisage harm to states, rather than to individuals. Thus, there is little authority in international law for the position that the "injured" state in this context is required to remedy the breach by taking the person back.
125. Michigan Guidelines, supra note 1 at 285.
126. Adan, supra note 80 at 518.
127. ECRE, supra note 6 at 11.
128. European Parliament, supra note 5 at para. G. 115. Ibid, at 3 (para. 2).