Eirik Christophersen (09.03.2016)
Talks between Turkey and the European Union to return refugees to Turkey raise important questions about international refugee protection principles. Which country is responsible for processing asylum applications? And when can people who need protection be returned to another country against their will?
The so-called ‘first country of asylum’ principle often justifies the decision to return asylum seekers to another country. It means that a country can reject a person’s asylum application if they have already been granted protection by another country. It is also often referred to as ‘safe third country’ principle. This broader term includes other relationships between an asylum seeker and a third country where they are deemed safe.
These two principles are central to the Dublin Regulation, of which Norway is a member. The Dublin Regulation aims to streamline asylum management in Europe by only allowing an asylum application to be processed by one country; normally the country where the person first arrives in Europe. It seeks to avoid ‘asylum shopping’ when a person applies for protection in one country after being rejected by another.
Although the Dublin Regulation is only valid for European countries that have signed it, the two previous principles are based on an interpretation of the 1951 Refugee Convention, and hence applicable to all countries that have acceded to it. The principles are not directly mentioned in the Convention, but derived from Article 31, which states that a refugee should not be punished for illegally entering a country if they are arriving directly from a country where they were under threat.
In November, the majority of parties in Norway’s parliament agreed to amend the Immigration Act. Norway no longer requires that a country accept and process asylum applications to be considered a safe third country. The change meant that Russia was deemed safe to receive asylum seekers, and subsequently people were forced to return there.
The Norwegian Government amended the Immigration Act in a single week in November, assuring the public it had consulted with the top human rights experts, and that the amendment was in line with international obligations. However, the UN High Commissioner for Refugees and several international law experts strongly disputed the amendment.
First Russia, then Turkey
NRC and others organizations warned that Norway's assessment of Russia as a safe third country was a dangerous step towards recognizing Syria's neighbors in a similar way. Today we are witnessing the reality of this. When governments met in Brussels on 7 March, Turkey offered to take back all asylum seekers arriving in Greece if the EU accepted an equal number of Syrian refugees from Turkey.
The proposal may seem attractive at first, as it would remove the demand for people smugglers. However, NRC is highly critical of the proposal. It denies refugees the right to have their asylum applications processed in Europe, and Turkey cannot guarantee that the rights of all refugees will be safeguarded in line with the Refugee Convention. Turkey has only partially signed the Convention; agreeing to abide it with regards to European refugees only. Hence, Turkey can not be considered a safe third country.
UNHCR's role as the Refugee Convention protector
The UN High Commissioner for Refugees (UNHCR) is responsible for ensuring that the Refugee Convention is followed, which is even stated in the Convention itself. Countries should therefore consult with the refugee agency before amending their asylum laws. The Norwegian Government failed to do this when it drastically changed its Immigration Act, forcing asylum seekers to return to Russia. The EU also appears ignore the High Commissioner's warning that returning refugees to Turkey is contrary to international law.
UNHCR stresses that the principles of the first country of asylum and safe third country should be regarded as practices that have evolved between states, rather than principles based on international refugee law, in their response to new European asylum rules. It says that the principles may work to streamline asylum processing when there is formal cooperation between countries, for example the Dublin Regulation, but warns against interpreting the principles too broadly.
Strict requirements to be considered a safe third country
There are few examples where western countries have considered countries in other parts of the world as safe third countries, as Norway did with Russia and as the EU is now considering with Turkey. UNHCR reviewed practices of 12 EU countries in 2010. It showed that only two countries considered non-EU countries as safe third countries; the United Kingdom and Spain. However, in the United Kingdom the practice only related to the US, Canada and Switzerland. Spain had only considered countries in North Africa and Latin America in certain cases as safe. UNHCR also reported that after the EU widened to include Eastern Europe, it should no longer consider some countries bordering it as safe third countries; this includes Russia and Turkey.
The UN High Commissioner for Refugees stressed that it is not enough that refugees are safe from being returned to persecution in their home country (the non-refoulement-principle). Other requirements in the Refugee Convention must be met, including access to social assistance, healthcare, work and education. The High Commissioner also stressed that a country must abide by the rules of the Convention in practice, not only on paper. Furthermore, an asylum seeker should have a close connection to a country for it to be considered a safe third country. Travelling through a country to reach another is not sufficient.
International cooperation and burden-sharing is a prerequisite for refugee protection, stresses UNHCR, and the country that has received an asylum application has primary responsibility to provide that person with protection. A country should only transfer responsibility for processing an asylum application to another safe country if both have asylum systems of the same standard. And there should be a clear agreement between the two countries about who is responsible for what.
It is difficult to see how any of these conditions can be met today, either by Norway's return of asylum seekers to Russia, or from the EU to Turkey.