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The Refugee in International Law, 3rd Edition by Goodwin-Gill, Guy S.; McAdam, Jane (22nd March 2007)

Part 2 Asylum, 7 The Concept of Asylum

From: The Refugee in International Law (3rd Edition)

Guy S. Goodwin-Gill, Jane McAdam

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 August 2019

Asylum — Refugees — Non-refoulement — Migrants, rights — Immigration — NGOs (Non-Governmental Organizations) — Geneva Conventions 1949 — Human trafficking

(p. 355) The Concept of Asylum

1.  Introduction

The meaning of the word ‘asylum’ tends to be assumed by those who use it, but its content is rarely explained. The Universal Declaration of Human Rights refers to ‘asylum from persecution’, the UN General Assembly urges the grant of asylum and observance of the principle of asylum, and States’ constitutions and laws offer the promise of asylum, yet nowhere is this act of States defined. The word itself and the phrase ‘right of asylum’ have lost much of their pristine simplicity.1 With the growth of nation States and the corresponding development of notions of territorial jurisdiction and supremacy, the institution of asylum underwent a radical change. It came to imply not only a place of refuge, but also the right to give protection, not so much to the ordinary criminal, as to the one class previously excluded, namely, exiles and refugees…2 The anomalous position of exiles had already been noted by the jurist Wolff who, writing in 1764, observed that ‘exiles do not cease to be men…[By] nature the right belongs to them to dwell in any place in the world which is subject to some other nation.’3 But this was a ‘right’ which even Wolff tempered with recognition of the fact of sovereignty. Compassion ought to be shown to those in flight, but admission might be refused for good reasons.4 The interest of the State in admission or non-admission continued to (p. 356) predominate.5 Moore, in 1908, noted that the right to grant asylum ‘is to be exercised by the government in the light of its own interests, and of its obligations as a representative of social order’.6 Hackworth similarly observed the freedom of each sovereign State to deal with refugees ‘as its domestic policy or its international obligations may seem to dictate’.7 In 1949, Morgenstern settled the competence of States to grant asylum upon ‘the undisputed rule of international law’ that every State has exclusive control over the individuals in its territory, including all matters relating to exclusion, admission, expulsion, and protection against the exercise of jurisdiction by other States.8

This element, protection granted to a foreign national against the exercise of jurisdiction by another State, lies at the heart of the traditional institution of asylum,9 but today it also connotes protection against harm, specifically violations of fundamental human rights, and is implicitly linked to the goal of solution. Protection must nevertheless be distinguished in its international law and municipal law aspects. In international law, protection is founded either in an exercise of territorial jurisdiction or on treaty or some regional or local custom. The latter bases are particularly relevant to the institution of ‘diplomatic asylum’, understood in the sense of protection against local jurisdiction granted in embassies and consulates and on warships.10 Although the notion of extraterritoriality has been relied on in support of the practice,11 regional treaty and custom appear to be its surer foundations.12 In the Asylum case in 1950 the International Court of Justice described the practice as involving,

a derogation from the sovereignty of [the local] State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are (p. 357) exclusively within the competence of that State…In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State.13

The generality of these last dicta can be misleading unless the normative effect of extradition treaties is taken into account, as well as more recent developments which limit or qualify the ‘normal exercise’ of sovereignty.14 From the point of view of international law, therefore, the grant of protection in its territory derives from the State’s sovereign competence, a statement of the obvious. The content of that grant of protection—whether it embraces permanent or temporary residence, freedom of movement and integration or confinement in camps, freedom to work and attain self-sufficiency or dependence on national and international charity—is less easy to determine. What cannot be ignored, however, is the close relationship between the issue of refugee status and the principle of non-refoulement, on the one hand, and the concept of asylum, on the other hand. These three elements are, as it were, all links in the chain between the refugee’s flight and his or her attainment of a durable solution.

Certain legal consequences flow from the existence of a class of refugees known to and defined by general international law and, in particular, from the principle (p. 358) of non-refoulement. In regard to asylum, however, it will be seen that the argument for obligation fails, both on account of the vagueness of the institution and of the continuing reluctance of States formally to accept such obligation and to accord a right of asylum enforceable at the insistence of the individual. Nevertheless, while individuals may not be able to claim a ‘right to asylum’, States have a duty under international law not to obstruct the individual’s right to seek asylum. This calls into question the legality of non-arrival and non-admission policies increasingly employed by States as tools of migration control.

2.  Asylum in international conventions, other instruments, and acts

The refusal of States to accept an obligation to grant asylum, in the sense of admission to residence and lasting protection against the jurisdiction of another State, is amply evidenced by the history of international conventions and other instruments. Measures taken between the two world wars related, initially, to arrangements for the issue of identity and travel documents which would facilitate the resettlement of refugees, but no obligations to resettle were assumed. The 1933 Convention, which proposed non-rejection of refugees at the frontier, was ratified by only a few States, while it, too, made no provision in respect of permanent asylum. Likewise, those States which subscribed to the constitution of the International Refugee Organization, though urged to cooperate in its function of resettling refugees, accepted no obligations to that end. Little progress was marked by the statement in article 14(1) UDHR48 that ‘everyone has the right to seek and to enjoy… asylum from persecution’. Lauterpacht rightly noted that States had no intention to assume even a moral obligation in the matter,15 although the drafting debates do reveal a tension between States that regarded asylum as their sovereign prerogative, and those which saw it as a duty of the international community.16 The original text proposed by the Commission on Human Rights had indeed provided that ‘[e]veryone has the right to seek and be granted, in other countries, asylum from persecution’.17 At the suggestion of the United Kingdom, (p. 359) the text was altered to remove the obligation on States to accord asylum to individuals seeking it, replacing the words ‘and be granted’ with the vaguer and far more innocuous ‘and to enjoy’.18

Thus amended, the text, while limiting the obligation of the State, would indicate that there was a right of asylum to which persecuted persons could have recourse, that the exercise of that right could not be penalized, and that States which offered asylum to refugees would not be compelled to extradite them.19

A number of States explained their support for the amended text on the ground that it imposed no legal obligation on them actually to grant asylum.20 Contemporary opinion thus held that to grant asylum to refugees within its territory was the sovereign right of every State, while the corresponding duty was respect for that asylum by all other States.

While the UK delegation expressed its sympathy towards the plight of persecuted persons, ‘no foreigner could claim the right of entry into any State unless that right were granted by treaty’.21 It defined the right of asylum as the right of States, not individuals, noting that this was also its understanding of the expression ‘to enjoy asylum’ contained in its draft.22 However, once a State had given an individual permission to enter, ‘the right to enjoy fully the asylum granted him by that State could not be disputed’.23 If article 14 were to include a right to be granted asylum, as the original text had proposed, ‘its application might actually lead to persecution by encouraging States to take action against an undesirable minority and then to invite it to make use of the right of asylum’.24 The Australian delegation similarly objected to ‘formulas implying obligation’, regarding the (p. 360) Universal Declaration as a statement of human rights that should not refer to any corresponding State duties. In its view, each State must be free to decide the form in which the right of asylum should be applied.25

By contrast, the French representative viewed asylum as an issue where national interests should yield to those of the international community. Mr Cassin disagreed with the UK ‘restrictive conception’ of the term ‘to enjoy’, arguing that for the right to have any meaning, a persecuted individual ‘would need to receive asylum, not merely the right of asylum’.26 Although ultimately voting for the amended text ‘because it was essential for the declaration to contain an article dealing with the right of asylum’, Mr Cassin argued that ‘[i]t had been a mistake…to recognize the individual’s right to seek asylum while neither imposing upon States the obligation to grant it nor invoking the support of the United Nations’.27 The USSR’s delegate similarly regarded the right to seek asylum as having little value without provisions for implementing it.28 The Lebanese representative understood the expression ‘and to enjoy… asylum’ as meaning that ‘the individual should be guaranteed the right of being granted asylum, and not merely the right of enjoying asylum in the country which had received him, once that right had been acquired’.29 The inclusion of a right in the Universal Declaration should not be dependent on States’ ability to comply with it.30 Brazil described the right of asylum as ‘recognized and accepted by the chief civilizations of the world’, and an essential component of any human rights declaration.31 Pakistan appears to have supported a very wide concept of asylum, available to any individual whose human rights, as set out in the Universal Declaration, were violated. In its view, article 14 was a corollary to the breach of other human rights: ‘If everyone had the right of freedom of thought and expression, a person could obviously preserve his intellectual and moral integrity only by seeking refuge abroad, should his own country deny him the enjoyment of those essential liberties.’32

Lauterpacht was highly critical of the final text of article 14. In his view, it simply restated States’ existing right under international law to grant refuge to individuals. Its inclusion in a declaration of human rights, posited as though it were a right pertaining to individuals, was ‘artificial to the point of flippancy’,33 since it lacked any correlative duty on States to give effect to that right and thus any assurance that the (p. 361) right to seek asylum would result in protection. In fact, the correlative duty, if any, is that which obliges other States to respect the grant of asylum, as it must respect any other lawful exercise of territorial jurisdiction.

Recognizing the Declaration’s shortcomings, the Commission on Human Rights resolved in 1947 ‘to examine at an early opportunity the question of the inclusion of the right of asylum of refugees from persecution in the International Bill of Human Rights or in a special Convention for the purpose’.34 Debate about the desirability of such a right thus re-opened as the Commission on Human Rights began drafting the human rights covenants in the 1950s. Supporters argued that the right was ‘one of the fundamental rights of the human being’ and the ‘natural corollary’ of other human rights in international law.35 A joint proposal by Chile, Uruguay, and Yugoslavia deemed that the right should be granted to ‘any person accused of political offences, and in particular to any person accused or persecuted on account of his participation in the struggle for national independence or political freedom or on account of his activities for the achievement of the purposes and principles proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights’.36 An alternative USSR proposal accorded the right to ‘all persons persecuted for their activities in defence of democratic interests, for their scientific work or for their participation in the struggle for national liberation’,37 while a French amendment to both proposals provided simply that ‘[e]veryone has the right to seek asylum from persecution’, stressing the importance of international cooperation in safeguarding that right.38 The French and USSR proposed that asylum be denied to those who had committed acts contrary to the purposes and principles of the United Nations, while the joint proposal excluded those who had committed acts that were inconsistent with the principles of the UN Charter or the Universal Declaration of Human Rights. The French amendment also excluded persons wanted for prosecution for non-political crimes, while the USSR excluded persons wanted for war crimes or other criminal offences.

Other States noted the desirability of granting asylum, but regarded the formulation of the right in the three proposals as insufficiently precise.39 Accordingly, they were ultimately rejected on the grounds that:

there was no fundamental right of the individual to be granted asylum but only a right of the State to extend its protection to him; that it was at once impracticable and undesirable (p. 362) to impose on States the obligation in advance of opening their territory to an unascertainable number of persons who might qualify for asylum under any one of the heads that had been proposed; and that experience in the drafting of the Universal Declaration of Human Rights and of the Final Act of the Conference of Plenipotentiaries on Refugees and Stateless Persons had shown that States were unwilling to surrender their prerogative of deciding in each instance which aliens they would admit to their territory.40

This approach was substantially reiterated in the UN General Assembly resolution establishing UNHCR, which simply urged States to cooperate with the High Commissioner by, among other matters, admitting refugees.41 Draft conventions submitted by France and the UN Secretariat in the course of debate on the 1951 Convention both contained an article on admission of refugees,42 but the Conference of Plenipotentiaries preferred to leave asylum and admission to be covered by exhortatory statements in the Final Act.43

Nevertheless, efforts continued in other fora. In 1957, France proposed a declaration on the right of asylum to the UN Economic and Social Council,44 and in 1959, the General Assembly called on the International Law Commission to work on its Codification.45 The subject was included in the ILC’s future work programme (p. 363) in 1962,46 but in the absence of progress generally it fell to the Commission on Human Rights and to the Third and Sixth Committees to take up the cause, culminating in the Declaration on Territorial Asylum, adopted unanimously by the General Assembly in 1967.47

The Declaration on Territorial Asylum recommends that States should base their asylum practice upon the principles declared, but it stresses throughout the sovereign competence aspect of territorial asylum and reaffirms the position of each State as sole judge of the grounds upon which it will extend such protection.48 Article 2, however, acknowledges that the plight of refugees remains of concern to the international community, and that where a State finds difficulty in granting or continuing to grant asylum, other States ‘shall consider’, in a spirit of international solidarity, measures to lighten the burden. Article 3 declares the principle of non-refoulement and, should a State contemplate making an exception, it ‘shall consider’ the possibility of according those affected the opportunity, ‘by way of provisional asylum or otherwise’, of going to another State.

Discussions in the UN Sixth Committee shortly before the Declaration’s adoption had revealed some expectation that it would be the precursor to a universal convention.49 The first draft of such a convention on asylum was in fact proposed, not by the International Law Commission (as General Assembly resolutions might have anticipated), but by a group of experts meeting in 1971 and 1972 under the auspices of the Carnegie Endowment for International Peace, in consultation with UNHCR. Article 1 of their text proposed that contracting States ‘acting in an international and humanitarian spirit, shall use [their] best endeavours to grant asylum in [their] territory, which… includes permission to remain in that territory’.50 The draft was discussed in the Third Committee later in 1972, where it was decided that the High Commissioner should consult governments, with a (p. 364) view to the eventual convening of an international conference.51 When governments were canvassed, many appeared to favour a convention,52 and the General Assembly decided that the text should be reviewed.53

The UN Group of Experts’ revision indicated continuing adherence to the discretionary aspect of asylum practice.54 Article 1 proposed that ‘Each Contracting State, acting in the exercise of its sovereign rights, shall use its best endeavours in a humanitarian spirit to grant asylum in its territory…’55 The same ‘best endeavours’ formula was again introduced in article 3 where, following a statement of the principle of non-refoulement on behalf of those ‘in the territory of a contracting State’, it would have operated to reduce the level of obligation in relation to rejection at the frontier from that previously adopted in both the 1967 Declaration and the 1969 OAU Convention.56 Acting on the Group of Experts’ report, the General Assembly requested the Secretary-General, in consultation with the High Commissioner, to convene a conference on territorial asylum in early 1977.57

Dissatisfaction with much of the proposed texts inspired a working group of non-governmental organizations to suggest an alternative version,58 the asylum provisions of which were largely supported by consensus at a Nansen Symposium held in 1976.59 In both cases, the proposals favoured an obligation to grant asylum, subject to certain exceptions; confirmation of the notion of non-rejection at the frontier within the principle of non-refoulement; and general recognition of the principle of provisional admission as a minimum requirement.

The 1977 United Nations Conference on Territorial Asylum was an abject failure, with close voting on major issues apparently heralding emerging divisions between States and on matters of principle.60 One article only, that on asylum, was considered by the drafting committee, which reduced the ‘best endeavours’ formula of the Group of Experts draft to that of ‘shall endeavour…to grant (p. 365) asylum’.61 On the other hand, non-rejection at the frontier was endorsed overall within the principle of non-refoulement, though the latter generally would have been qualified by States’ preoccupation with numbers and security. Recognizing that little of substance had been achieved, the Conference at its final session recommended that the General Assembly consider reconvening it at a suitable time.62 Later that year, however, the Third Committee declined to submit any formal proposal to that effect, and it was thought more appropriate that the High Commissioner continue consultations with governments.63

Since 1977, there has been no further progress towards reconvening the Conference; on the contrary, refugee problems, including aspects of asylum, status, non-refoulement, and solutions have responded more to regional initiatives, such as the comprehensive programmes implemented for Central America (CIRE-FCA), Indo-China (CPA),64 and more recently the Common European Asylum System (CEAS).65 Though there has been no progress towards a universal instrument on asylum, various soft law resolutions and declarations have consistently affirmed its importance. In 1993, the Vienna Declaration on Human Rights and Programme of Action reaffirmed the right to seek and enjoy asylum.66 The Sub-Commission on Human Rights in 2000 adopted a resolution on the right to seek and enjoy asylum, which expressed deep concern that:

restrictive policies and practices of many States may lead to Difficulties for people to gain effective access to protection in the territory of asylum States while escaping persecution and serious human rights violations in their own countries, [and noted] that such policies and practices, including certain incidents of the detention of asylum-seekers, may be incompatible with the principles of applicable refugee and human rights law.67

This was reaffirmed in subsequent resolutions.68 UNHCR’s Executive Committee has repeatedly stressed the importance of the right to seek asylum,69 and has also gone some way to Defining its content.70

(p. 366) 3.  Asylum in regional agreements

On a regional level, some progress can be discerned. The European Convention on Human Rights (ECHR50) has facilitated an overall improvement in the situation of individuals at large, whether citizens, non-nationals, or refugees.71 Under treaty arrangements generally, the obligation to provide a remedy to victims of human rights violations is usually predicated on two conditions: (a) recognition of the specific right violated as a protected right within the system in question; and (b) the existence of a sufficient link between the actual or putative victim and the State from which a remedy is sought. Article 3 ECHR50, which prohibits torture and inhuman or degrading treatment or punishment, has significantly limited States’ freedom to remove individuals who may be at risk of such ill-treatment in the territories to which return is contemplated. The UK House of Lords suggested in a 2004 judgment that protection against refoulement could, in the right factual circumstances, inhere in any ECHR50 right, not just article 3.72 Nevertheless, neither article 3 nor any other ECHR50 provision accords a right to enter a State,73 or a right to asylum. This has been clearly recognized in the jurisprudence of the European Court of Human Rights and the Commission, even as they marked out the boundaries beyond which exclusion or expulsion might infringe that provision.74

(p. 367) The 1957 European Convention on Extradition, on the other hand, formulates the principle of non-extradition for political offences in the form of an obligation (‘extradition shall not be granted’) and applies the same principle where the request is made for the purpose of prosecuting or punishing a person on account of race, religion, nationality, or political opinion, or where a person’s position may be prejudiced for any of these reasons.75 In 1965, the Council of Europe Parliamentary Assembly noted the desirability of elaborating an international instrument giving legal recognition to States’ practice in granting asylum,76 and in 1967 the Committee of Ministers recommended that member governments ‘should act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum in their territory’, though it recognized ‘the necessity of safeguarding national security and of protecting the community from serious danger’.77 Observance of the principle of non-refoulement was called for and, where exceptions were contemplated, the individual should ‘as far as possible and under such conditions as [were considered] appropriate’ be accorded the opportunity of going to another State.

Article 18 of the 2000 Charter of Fundamental Rights of the European Union, and article II-78 of the European Constitution (yet to enter into force), provide: ‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with’ the Treaty establishing the European Community and the European Constitution respectively.

While a reference to the ‘right to asylum’78 at first glance appears expansive, the Charter seeks only to consolidate existing fundamental EU rights rather than elaborate or amend them.79 The Preamble of the Charter refers to a ‘reaffirmation’ of rights stemming from international and domestic law, and to the Charter’s role (p. 368) in making existing rights more ‘visible’, suggesting a ‘replicative approach’.80 The right is limited to a procedural right to apply for asylum, rather than an substantive right to obtain it. Nonetheless, the right is framed as one pertaining to the individual.81 Ultimately, it stems from the right to seek asylum in article 14 UDHR48, which implies a right to have a claim considered on its merits, in combination with the principle of non-refoulement, which necessarily requires States to examine asylum claims if they are to satisfy themselves that they will not violate the principle by removing a particular individual.82

Developments in other regions are mixed. Within Latin America, the 1954 Caracas Convention on Territorial Asylum reaffirmed the territorial State’s sovereign right to grant asylum, the duty of other States to respect such asylum, and the exemption from any obligations to surrender or expel persons ‘sought for political offenses’ or ‘persecuted for political reasons or offenses’.83 As regards diplomatic asylum,84 another Caracas Convention of the same year stressed that while ‘every State has the right to grant asylum…it is not obligated to do so or state its reasons for refusing it’; and that it rests with ‘the State granting asylum to determine the nature of the offense or the motives for the persecution’.85 The Convention provides further that ‘the State granting asylum is not bound to settle him in its territory, but it may not return him to his country of origin, unless this is the express wish of the asylee’.86 These conventions are not especially relevant to today’s refugee problems, however.

The 1969 OAU Convention, by contrast, besides broadening the refugee definition, also strengthens the institution of asylum. Member States of the OAU, proclaims article II, ‘shall use their best endeavours…to receive refugees and to secure the settlement’ of those unable or unwilling to be repatriated. The principle of non-refoulement is declared without exception, although once again a call is made to lighten the burden on countries of first refuge.87 A further provision, dealing with the refugee who has not received the right to reside in any country, merely acknowledges that he or she ‘may’ be granted temporary residence pending resettlement. On asylum at large, the OAU Convention affirms that its grant is a (p. 369) peaceful and humanitarian act, and thus not to be regarded as unfriendly. It also emphasizes the duty of refugees to abide by the laws of the country in which they find themselves and to refrain from subversive activities against any Member State.

Despite the encouraging tone of the OAU Convention, neither this instrument nor any other permits the conclusion that States have accepted an international obligation to grant asylum to refugees, in the sense of admission to residence and lasting protection against persecution and/or the exercise of jurisdiction by another State.88 Nonetheless, State practice is replete with examples of asylum given; the humanitarian practice exists, but the sense of obligation is missing.

The practice of international organizations tends to support this view, while simultaneously revealing an awareness of the need for pragmatic, flexible responses. In the years after the Second World War, for example, many thousands of refugees had the benefit, at least, of asylum in the refugee camps of Europe.89 Their principal need was for resettlement, and the General Assembly repeatedly called upon immigration countries to allow refugees access to their programmes.90 On other occasions, the General Assembly reiterated that permanent solutions should be sought in voluntary repatriation and assimilation within new national communities, either locally in countries of first refuge or in countries of immigration.91 The initial burden may fall in fact upon the receiving country,92 but solutions are the responsibility of the international community at large.93

4.  Obstructing asylum: trends in State practice

4.1  Access

The question of access to protection and assistance has acquired critical dimensions over the last two decades, touching directly on issues of territorial sovereignty, (p. 370) control, and the reserved domain of domestic jurisdiction. Denial of access is the objective for many States anxious to avoid the requirement to abide by certain peremptory obligations, such as non-refoulement. Refugees and asylum seekers are directly ‘interdicted’ while outside territorial jurisdiction, and their movements are increasingly controlled indirectly, through the application of restrictive visa policies and/or carrier sanctions. Those who arrive in the territory of the State may be denied access to a procedure for the determination of asylum or refugee status, or to courts and tribunals generally for the protection of their rights, or to the sources of information that ought to be the essential foundation for informed decision-making. Even where refugees secure admission, they may be denied access to relief or basic services, such as health care and education. Access has another dimension in situations of conflict, when internally displaced populations requiring humanitarian assistance become hostages to fortune, with international efforts to relieve their suffering linked to political or military advantages sought by one or other side.

One of the Difficulties with evaluating these various Deflection techniques through the lens of international refugee law is the 1951 Convention’s silence on admission procedures. Though human rights law provides a general standards framework, States retain considerable discretion to construct sophisticated interception and non-arrival policies within the letter, if not the spirit, of the law. However, while it is true that no international instrument imposes an express duty on States to grant asylum to persons fleeing persecution, the right to seek asylum, when read in conjunction with the right to freedom of movement and the totality of rights protected by the UDHR48 and ICCPR66, implies an obligation on States to respect the individual’s right to leave his or her country in search of protection. Thus, States that impose barriers on individuals seeking to leave their own country,94 or that seek to deflect or obstruct access to asylum procedures, may breach this obligation and, more generally, demonstrate a lack of good faith in implementing their treaty obligations.95

The question of access to countries and therefore also to procedures for the determination of refugee status and the grant of asylum falls between competing responsibilities, only some of which are clearly regulated by rules of international law. For example, State agents who intercept refugees on the high seas and return them directly to a country in which they are persecuted violate the principle of non-refoulement. On the other hand, State agents who, by refusing a visa to individuals with a well-founded fear of persecution, prevent or obstruct their flight to safety, do not breach the prohibition on returning refugees to persecution.96 (p. 371) Nonetheless, the Human Rights Committee has expressed concern at States’ imposition of carrier sanctions and ‘other pre-frontier arrangements’ that affect the right of the individual to leave any country, raising the question of their compatibility with article 12(2) ICCPR66.97 At the same time, though, it has acknowledged that article 12 ‘does not guarantee an unrestricted right to travel from one country to another’, and does not confer a right for a person to enter a country other than his or her own.98 In the Roma Rights case, the House of Lords held that State practice did not support the proposition that a State’s non-refoulement obligations extend to general deterrence measures, especially those whose impact is felt within the country of origin or transit, noting in particular the widespread practice of visa regimes enforced by carrier sanctions.99

The ‘right to seek asylum’ is certainly restricted, and State practice to date has not recognized directly correlative duties obliging States to adjust visa or immigration policies accordingly. On the contrary, States have repeatedly insisted on their right to apply visa and related controls, including sanctions against transportation companies which bring undocumented or insufficiently documented passengers to their ports and airports. Thus, while some have argued that the Universal Declaration on Human Rights, in whole or part, has acquired the status of customary international law,100 there remains insufficient State practice or opinio juris to support a concomitant duty on the State to grant asylum to those seeking it.101

4.2  Interception

There is no internationally accepted definition of ‘interception’, but the term describes measures applied by States outside their national boundaries which prevent, interrupt, or stop the movement of people without the necessary immigration documentation from crossing their borders by land, sea, or air.102 Interception encompasses both physical or ‘active’ interception, such as the interdiction of boats, as well as administrative or ‘passive’ measures, such as stationing immigration and (p. 372) airline liaison Officers in departure and transit countries to identify passengers with false or inadequate documentation and to prevent them from leaving for the destination State.103 A 2003 Executive Committee Conclusion adopted a narrower definition focusing solely on active means of interception—preventing embarkation, preventing further onward travel, and asserting control of vessels—but noted that it was specifically for the purposes of that Conclusion and without prejudice to international law.104

Interception policies are not new, but have increasingly become a standard migration tool for western States.105 In the past two decades in particular, States have taken advantage of the absence of a concrete obligation to provide asylum both to deter asylum seekers from leaving their countries to search for protection, and to deflect those already on the move; restrictive measures have become routine.106 While they are in part a response to people smuggling and trafficking networks, they are frequently exploited under the rubric of national security, and reflect a wider practice among States to curtail ‘irregular’ migration. Though the trend towards increasingly restrictive asylum policies pre-dates 11 September 2001, security concerns following the terrorist attacks on the United States and elsewhere have reshaped asylum regimes in a number of countries. Detention grounds have been expanded, exclusion clauses have been applied more broadly than international law stipulates, and stronger links have been forged between immigration, intelligence services, and criminal law enforcement.107

Existing principles of international refugee law, human rights law, criminal law, the law of the sea, and the law of State responsibility nevertheless provide a framework for the regulation of interception.108 Key among these is the principle of non-refoulement which as the Sub-Commission on the Promotion and Protection (p. 373) of Human Rights has observed, not only applies without geographical limitation, but also prohibits the indirect return of a refugee to where he or she may be persecuted.109 National and regional courts have also supported this approach.110

Since the primary purpose of interception is migration control, it focuses on preventing unauthorized arrivals without inquiring into the reasons for movement. Interception measures typically lack sufficient safeguards for distinguishing those in need of international protection from other migrants, and in practice operate as barriers to the right to seek asylum. Executive Committee Conclusion No. 97 (2003) attempts to reconcile States’ interests in interception, as a migration control tool, with the international protection needs of asylum seekers. It contains eight guiding principles to ensure ‘adequate treatment’ of intercepted persons: the State primarily responsible for protection needs is that where interception occurs; intercepted persons are to be treated humanely in accordance with human rights law; States must take into account the fundamental differences between asylum seekers and other migrants; asylum seekers must be given access to international protection mechanisms and, where needed, durable solutions, and States must respect the principle of non-refoulement; States must take into account the special needs of women, children, and vulnerable persons; those intercepted should not be liable to criminal prosecution or punished for illegal entry; those not in need of international protection should be swiftly returned; and those acting for the State in implementing interception measures should have specialized human rights and refugee protection training.

NGOs have criticized this Conclusion for placing the primary responsibility for intercepted persons on the State within whose territory or territorial waters the interception occurs, rather than on the State engaging in the act of interception. Since the law of State responsibility requires States to observe their international obligations extraterritorially,111 they should be held accountable for the results of their actions wherever they occur: ‘Particularly when interception occurs in the territory of a State that is not party to the Convention or that lacks fair and effective asylum procedures, the intercepting State must accept responsibility for the protection of the person.’112 Others have noted that the Conclusion fails to refer to the principle of non-discrimination, which imposes limits on interception measures targeting particular groups.113 Moreover, States remain liable under international human rights law if the methods they employ to deflect or deter (p. 374) asylum seekers constitute torture or cruel, inhuman or degrading treatment or punishment under CAT84, ICCPR66, or ECHR50.

4.3  Non-Arrival Policies

States employ a variety of ‘non-arrival’ policies to prevent asylum seekers from ever reaching their territory. While passive measures, such as visa regimes, carrier sanctions, and pre-entry clearance procedures, are typically distinguished from active acts of interception, the effect of both is to deny access to territory and thereby hamper the refugee’s ability to lodge an asylum claim.

4.3.1  Visa regimes

Visa regimes are a standard feature of most immigration systems, can be a permissible tool for immigration control, but are not always lawful. For example, a visa policy that maintains a system of racial discrimination clearly violates international law, while visa regimes which seek to obstruct access to protection undermine the institution of asylum and international human rights and refugee law principles.114

In some circumstances, visa controls may indeed reflect a reasonable, non-abusive policy and programme of restriction. This may be the case where other protection opportunities exist, such as an ‘internal flight alternative’ or internationally guaranteed safety zone, where the quality of the protection conforms with regional and international human rights standards.115 In the absence of such alternatives, the possibility for abuse of rights arises.

Visa regimes are frequently exploited by States as a means of curbing unwanted migrants. They typically do not apply in a uniform manner to all foreign nationals, but ‘reflect a state’s political, economic, or historical ties’.116 As a means of halting arrivals of asylum seekers, a number of States have introduced visa requirements in direct response to increased refugee claims from nationals of particular countries, sometimes with considerable success.117 The imposition of visa (p. 375) requirements on nationals of refugee-producing countries has been described as ‘the most explicit blocking mechanism for asylum flows’,118 since it hinders the individual’s ability to seek asylum and may force asylum seekers into illegal migration channels, such as trafficking and smuggling networks. Furthermore, the imposition of visa requirements by one State may have a domino effect, as other States fear that without visa regimes they may become target countries for asylum seekers. During the Bosnian crisis in 1992, the visa regimes applied by many European States meant that countries that might otherwise have only been used as transit countries, such as Croatia and Slovenia, had to accommodate large numbers of refugees who were effectively ‘locked in’.119

For many refugees, obtaining necessary passports from persecutory State authorities is too dangerous, while in countries where national institutions have broken down, consular authorities may be non-existent.120 Flight is commonly very sudden, and there may not be time to obtain the requisite travel documents. Furthermore, visas are not generally issued for protection reasons,121 and even a standard tourist visa may not be granted if it is suspected that the individual will seek asylum on arrival in the destination State. The visa regimes of the European Union and North America effectively close off whole parts of the world to asylum seekers.122

If external movement is premised on the acquisition of a visa, and visas for asylum are not forthcoming, then all legal means of seeking asylum are denied. Individuals are either forced into trying to obtain a visa on false premises simply to gain entry into a State in which a protection claim may be lodged, or into moving illegally.123 Though States may lawfully control their borders, ‘such control policies—if (p. 376) pursued in isolation—can be counterproductive’.124 It is estimated that 90 per cent of asylum seekers rely on illegal methods to enter the European Union.125

Partly in response to this scenario, some EU States have explored extraterritorial processing schemes called ‘protected entry procedures’.126 These schemes enable individuals to approach the diplomatic missions of States abroad and apply for asylum or another form of international protection, and for States to grant an entry permit if the claim warrants it. Discussions among EU Member States revealed insufficient support for the establishment of a formalized, self-standing EU policy on protected entry procedures, but the Commission noted that in certain circumstances, and with respect for individual Member States’ discretion, a protected entry mechanism could be facilitated at the EU level as an ‘emergency strand’ of wider resettlement programmes to safeguard immediate and urgent protection needs.127 UNHCR welcomed the proposal as one which could ‘strengthen protection and may well complement anti-trafficking and anti-smuggling programmes by enabling refugees to find safety without having to rely on smugglers and traffickers’.128 It acknowledged that protected entry procedures might be useful where resettlement would be ‘too slow or otherwise inappropriate for particularly deserving or urgent cases’, although noted that both the substantive and procedural aspects of the Commission’s proposal required further clarification.129 While protected entry procedures are important for individual asylum seekers, (p. 377) they do not address the global extent of refugee flows and are not an appropriate mechanism for addressing migration management concerns.130

4.3.2  Pre-entry clearance and carrier sanctions

Many States, including the United Kingdom, the United States, Canada, Australia, and several European States have immigration officials posted abroad to advise airlines and other States about fraudulent travel documents.131 Between 1996 and 2002, Canadian Officers reportedly intercepted over 40,000 persons attempting to travel to Canada with inappropriate documents.132 In conjunction with carrier sanctions imposed on airlines, shipping and other transport companies,133 these practices are designed to prevent passengers who do not possess valid visas or passports from leaving for a third State; they focus on verifying documents, not on the motivations for travel.134

A further problem with carrier sanctions and pre-arrival screening is that many of the Officers checking documents do not have sufficient training to identify those with protection needs,135 and there are rarely mechanisms in place for referring people without adequate documentation to a protection screening process. The priorities for private, commercial carriers are more likely to be the validity of documents and the avoidance of fines, than the assessment of protection needs.136

(p. 378) The House of Lords considered the legality of particular pre-entry screening measures in 2004. Since mid-2001, the United Kingdom had intermittently stationed immigration officials at Prague Airport to ‘pre-clear’ passengers before they boarded flights to the United Kingdom. The objective was to ‘stem the flow of asylum seekers from the Czech Republic’ by denying leave to enter ‘to those who stated that they were intending to claim asylum in the UK and those who the Officers concluded were intending to do so’.137 The case was not strictly about asylum since it concerned the lawfulness of procedures applied to potential asylum seekers who had not yet left their country of origin. However, the appellants and UNHCR (as intervener) challenged the procedures on the grounds that they were incompatible with the UK’s obligations under the 1951 Convention/1967 Protocol and customary international law, and secondly, that they involved discrimination on the ground of race, contrary to international and domestic law. The case was brought by six Czech nationals of Roma ethnic origin, who had been denied leave to enter the United Kingdom (and thus to depart the Czech Republic for that destination), and by the European Roma Rights Centre, a non-governmental organization that seeks to protect the rights of Roma in Europe.

The House of Lords held that while the 1951 Convention should be given ‘a generous and purposive interpretation, bearing in mind its humanitarian objects and purpose clearly stated in the preamble…the court’s task remains one of interpreting the written document to which the contracting states have committed themselves’.138 Though States have an obligation to interpret international treaties in good faith, in accordance with the principle of pacta sunt servanda,139 ‘there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do’.140 The court held that article 33 only applied to asylum seekers either already in or at the frontier of a State, and in the instant case, the individuals concerned had neither ‘left the Czech Republic nor presented themselves, save in a highly metaphorical sense, at the frontier of the United Kingdom’.141 Accordingly, their argument was inconsistent with the text of the Convention, ‘since it puts those expressly excluded from the protection of the Convention in the same position as those expressly included’.142 Importantly, though, the court recognized that there is ‘general acceptance’ that the principle of non-refoulement has evolved to encompass non-rejection at the frontier.143 The relevance of this finding is that (p. 379) it implies a right of at least temporary admission for asylum seekers to have their protection needs assessed.144

In the instant case, however, the court was not prepared to accept that the United Kingdom had created a ‘virtual frontier’ at Prague Airport, or that refusals in Prague to grant leave to enter the United Kingdom therefore constituted rejection at the frontier in violation of the principle of non-refoulement.145 Lord Bingham distinguished the present case from that of Sale v. Haitian Centers Council on the ground that the Haitian asylum seekers were already outside their country of origin and (in contrast to the appellants in the instant case) were not free to travel to any other country.146 The customary international law principle of non-refoulement, encompassing non-rejection at the frontier, was therefore found not to apply only because the persons concerned had not yet reached the frontier of the United Kingdom.

The appeal was successful, however, on the ground that the pre-clearance procedure was discriminatory, since it treated Roma seeking to travel to the United Kingdom less favourably on racial grounds than others.147 Lord Steyn summarized the key features of the operation:

It was designed as a response to an influx of Czech Roma into the United Kingdom. The immigration officers knew that the reason why they were stationed in Prague was to stop asylum seekers travelling to the United Kingdom. They also knew that almost all Czech asylum seekers were Roma, because the Roma are a disadvantaged racial minority in the Czech Republic. Thus there was from the outset a high risk that individuals recognised as Roma would be targeted by specially intrusive and sceptical questioning. There was a striking difference in treatment of Roma and non Roma at the hands of immigration Officers operating at Prague Airport. The statistics show that almost 90% of Roma were refused leave to enter and only 0.2% of non Roma were refused leave to enter. Roma were 400 times more likely than non Roma to be refused permission.148

Accordingly, the court found that the practice was ‘not only unlawful in domestic law but also contrary to our obligations under customary international law and under international treaties to which the United Kingdom is a party’,149 however, (p. 380) it did not constitute discrimination under article 3 of the 1951 Convention because that provision applied only to recognized refugees and not to asylum seekers whose status had not yet been determined.150

International human rights law may thus offer some of the strongest arguments against States’ implementation of deterrence measures, although admittedly the norm of non-discrimination in international law carries a particular weight not shared by all human rights principles. Apart from discrimination cases, however, human rights law offers a basis upon which to challenge both the procedural and substantive operation of deterrence schemes, and provides the content of those other obligations in international law with which the actions of States must be compatible.151

. International law responses

In the Roma Rights case, the House of Lords held that State practice did not support the proposition that a State’s non-refoulement obligations extend to general deterrence measures, noting in particular the widespread practice of visa regimes enforced by carrier sanctions,152 whose effect was likened to the pre-clearance procedures imposed on the appellants. Since ‘it could not plausibly be argued that a visa regime would have been contrary to the practice of the nations… [t]hat conclusion must in my opinion apply also to the pre-clearance procedure which the appellants challenge’.153

However, where the effect of such regimes is to obstruct the flight of persons at risk of persecution or other serious harm, then other international legal obligations may be triggered which render deterrence measures unlawful.154

5.1  The Right to Leave Any Country

The right to leave any country, including one’s own, is a feature of most international human rights instruments.155 It immediately precedes the right to seek asylum in UDHR48, and is expressed as a binding State duty in article 12 (p. 381) ICCPR66.156 Although it operates without limitation in article 13(2) UDHR48, it has never been considered an absolute right. Thus, ICCPR66 restricts the right to leave where ‘necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others’, provided this is consistent with the other ICCPR66 rights and stipulated by law. The ECHR50 and ACHR69 provide that restrictions must also be ‘necessary in a democratic society’. Such exceptions were incorporated to prevent people leaving purely to escape legal proceedings, paying fines, taxes, or maintenance allowances, or to avoid obligations such as national service.157 State practice reveals additional limitations on the right to leave, including visa requirements. The European Court of Human Rights has stated that the right to leave any country under article 2 of Protocol 4 ECHR50, ‘implies a right to leave for such a country of the person’s choice to which he may be admitted’.158 This restriction is not found in the text of Protocol 4, but has been interpolated from the gap between the individual’s right to leave and the absence of a correlative duty on a third State to admit.

The Human Rights Committee has expressed concerns that domestic legal and bureaucratic obstacles may seriously impinge on the right to leave a country, emphasizing that any restrictions under article 12(3) must be based on clear legal grounds, be necessary to protect the prescribed purposes, conform with the principle of proportionality, and be the least intrusive measure to achieve the desired result.159 As a matter of general policy, immigration controls that prevent an (p. 382) individual’s right to leave a country will not satisfy those requirements. As one commentator has observed, the yardstick must be that the exercise of the right to leave is the rule, and limitations the exception.160 Furthermore, any restrictive measures must comply with other principles of human rights law, including non-discrimination. This is why, in the Roma Rights case, the discriminatory application of pre-entry clearance was deemed unlawful by the House of Lords.

The broader enunciation of the right to leave any country in article 13 UDHR48 lacks a mechanism for international implementation. As expressed, it is a right engaging the responsibility of individual States, rather than the international community as a whole. The right to leave is not a right which other States need to ‘complete’ through a duty to admit; rather, it is simply a right which each State must guarantee to those within its own territories, as a matter of constitutional principle. However, where a State refuses to let an individual depart because he or she does not possess the necessary documentation to enter a third State, then the right loses its binary State-individual focus and necessarily acquires an international dimension. In the context of asylum, this has important consequences with respect to the host State’s ability to prevent entry, and the receiving State’s obligations to asylum seekers.

The right to leave, the right to seek and to enjoy asylum, and the principle of non-refoulement share a delicate but significant relationship. The right to leave suggests a dual obligation on the State: a negative obligation not to prevent departure, and a positive obligation to issue travel documents (at least with respect to nationals).161 It is, however, an incomplete right, since there is no corresponding duty on other States to guarantee entry to persons other than their own nationals or those with ‘special ties to or claims in relation to a given country’.162 While the principle of non-refoulement circumscribes State action in this regard, it still cannot be fully equated with a legal right of entry.163

(p. 383) The right of asylum is important for protection purposes because ‘a person who leaves the state of his nationality and applies to the authorities of another state for asylum, whether at the frontier of the second state or from within it, should not be rejected or returned to the first state without appropriate enquiry into the persecution of which he claims to have a well-founded fear’.164 Given the protection orientation and objectives of refugee and human rights law, the limited notion of the right to leave to seek asylum from persecution may be the only aspect of the right to leave one’s country in international law to impose any duty on other States. In this sense, the nearest correlative duty may be not to frustrate the exercise of that right in such a way as to leave individuals exposed to persecution or other violations of their human rights; and that correspondingly intentional policies and practices of containment without protection constitute an abuse of rights.165

This is where the international dimension of the right, alluded to above, is triggered. In situations where individuals or groups in one State are exposed to persecution or serious human rights violations, then, in accordance with international law, States are also obliged to respect the right to leave to seek and enjoy asylum, and ought not to exercise their own rights to control the movement of people in such a way as to frustrate attempts to find effective protection. This argument is supported by the principle of non-rejection at the frontier and prohibitions on removal under human rights law, which limit States’ freedom to remove individuals from their territory. Yet, in Xhavara v. Italy and Albania,166 the European Court of Human Rights held that Italian interception measures did not breach the right to freedom of movement under article 2(2) of Protocol 4 ECHR50, for they were aimed at preventing entry to Italy, rather than preventing departure from Albania.

Under international law, the right of asylum is broader than a mere procedural right to lodge an application for protection within or at the frontier of another territory, although that is a necessary component.167 While it falls short of imposing (p. 384) an obligation on States to grant asylum to anyone seeking it, the operation of principles of international refugee and human rights law, in particular the principle of non-refoulement, requires States to consider asylum claims and provide protection to persons with a demonstrated international protection need. To have any meaning, the right to seek asylum implies not only a right to access asylum procedures, but also to be able to leave one’s country in search of protection.

5.2  Article 31 of the 1951 Convention

Article 31 of the 1951 Convention recognizes that the circumstances compelling flight may lead refugees to seek entry to States without possessing proper documentation, and in view of this stipulates that States must not penalize refugees for irregular entry. Read in conjunction with article 33 on non-refoulement, and the right to leave a country and seek asylum, article 31 provides support for a limited right of (at least) temporary admission for asylum seekers to access fair and effective refugee status procedures.168

Article 31 reveals that international law does not require asylum seekers to enter States in a regular manner, provided that they can show ‘good cause’ for entering without the requisite documentation.169 This fundamental aspect of the 1951 Convention underscores the right of people in distress to seek protection, even if their actions constitute a breach of the domestic laws of a country of asylum. Irregular or no documentation does not reveal anything about the credibility of a protection claim. Article 31 recognizes that the circumstances compelling flight commonly force refugees to travel without passports, visas, or other documentation, while restrictive immigration policies mean that most refugees are likely to be ineligible for visas through official migration channels. The Protocol against the Smuggling of Migrants by Land, Air and Sea, and the Protocol to Prevent, Suppress and Punish trafficking in Persons, which supplement the UN Convention against Transnational Organized Crime, each includes a savings clause noting that nothing in those instruments affects the applicability of the principle of non-refoulement.170

Yet, the asylum seeker exercising his or her right under international law to seek asylum frequently becomes the ‘unlawful non-citizen’ under domestic law.171 (p. 385) He or she suffers the ‘imputation of double criminality’,172 having entered in an irregular manner, often with the assistance of people smugglers, and being aligned with ‘crime’ by officials and the media, leading to assumptions about the (il)legitimacy of their claims.173 For example, the Australian government sought to justify the non-admission of some 400 asylum seekers arriving by boat in 2001 as an approach that ‘saved lives—by deterring people from undertaking dangerous journeys from places of protection—and saved space—for the unseen, unheard refugees who could not afford people smugglers’.174 Despite the fact that all were subsequently recognized as Convention refugees, the Australian focus on the lack of visas was used to tarnish their authenticity and responsibility as refugees, and to imply that their flight had slowed the resettlement of others still abroad.175

5.3  State Responsibility for Extraterritorial Acts

The extraterritorial application of the principle of non-refoulement under the 1951 Convention was examined in Chapter 5. There it was argued that a State’s obligations under international law extend beyond its physical territory; accordingly, removing refugees ‘in any manner whatsoever’ to territories where they may be persecuted, whether removal occurs within or outside State territory, will breach article 33(1).

However, the principle of non-refoulement under the 1951 Convention can only be triggered once an asylum seeker is outside his or her country of origin or habitual residence. The House of Lords rejected the idea of a ‘virtual frontier’, created by the imposition of entry controls at foreign border posts from which potential refugees may seek to depart, on the basis that the Convention text makes clear that a refugee is someone already outside his or her home State.176 Unlike the 1951 Convention, however, human rights treaties precluding refoulement do not require the refugee to be outside his or her country before a potential receiving State’s obligations are engaged. Thus, if an airline liaison Officer177 employed by a (p. 386) receiving State refuses embarkation to an individual fearing inhuman treatment in the country he or she seeks to leave, this could potentially constitute a breach of that receiving State’s obligations under article 7 ICCPR66 or article 3 ECHR50, in addition to obstructing the right to leave and seek asylum.178

The problem, of course, is that pre-entry clearance does not generally contain procedures for identifying those with international protection needs. The imposition of fines on airline carriers that allow the embarkation of passengers without the appropriate travel documentation has effectively shifted migration control away from State authorities to private, commercial entities. As a matter of international law, States cannot contract out or ‘privatize’ their legal obligations: they may contract out performance, but not responsibility. While the imposition of carrier sanctions on airlines and transport companies shifts immigration screening on to private corporations, this does not absolve States of responsibility if asylum seekers are denied the right to leave a country and/or subjected to refoulement.179 The law of State responsibility attributes the conduct of private entities ‘empowered by the law of that State to exercise elements of the governmental authority’ to the State itself.180 Similarly, the conduct of an individual or group of persons is ‘considered as an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.181 In the refugee context, Lauterpacht and Bethlehem also note that the principle of non-refoulement applies ‘to the conduct of State officials or those acting on behalf of the State wherever this occurs’, including extraterritorially.182

(p. 387) As UNHCR has observed, while States may have a legitimate interest in curtailing irregular migration through interception measures, they must also respect their international obligations and implement transparent systems for identifying individuals in need of international protection.183 At a minimum, the combined operation of the right to leave, the right to seek and to enjoy asylum, and the principle of non-refoulement requires States to grant asylum seekers access to an asylum determination procedure.184

5.4  Good Faith

A basic principle of international law is that States have a responsibility to implement their treaty obligations in good faith.185 This duty is breached if a combination of acts or omissions has the overall effect of rendering the fulfilment of treaty obligations obsolete, or defeat the object and purpose of a treaty. A lack of good faith is distinct from (although may also encompass) a violation of an express term of a treaty. The duty requires parties to a treaty ‘not only to observe the letter of the law, but also to abstain from acts which would inevitably affect their ability to perform the treaty’.186 Thus, a State lacks good faith ‘when it seeks to avoid or to “divert” the obligation which it has accepted, or to do indirectly what it is not permitted to do directly’.187 The test for good faith is an objective one; it looks to the practical effect of State action, not its intent or motivations.188

In the context of the right to seek asylum, measures which have the effect of blocking access to procedures or to territory may not only breach express (p. 388) obligations under international human rights and refugee law, but may also violate the principle of good faith.189 Although States do not have a duty to facilitate travel to their territories by asylum seekers, the options available to States wishing to frustrate the movement of asylum seekers are limited by specific rules of international law and by States’ obligations to fulfil their international commitments in good faith. Even though immigration control per se may be a legitimate exercise of State sovereignty, it must nevertheless be pursued within the boundaries of international law.

Thus, any State imposing extraterritorial interception or pre-entry clearance measures with regard to those having an international protection need ought, as a matter of law, to consider the facts relating to conditions in the country of origin, especially with respect to human rights, persecution, and discrimination. It ought further to consider the impact of its proposed regime on the rights and obligations of other States and the rights and interests of individuals, especially where these are protected by treaty or general international law; ensure that its actions are compatible with its international obligations; act in accordance with the rules of general international law; and exercise its rights reasonably—proportionately to a lawful purpose—and with due regard to alternatives. Non-arrival policies, which effectively prevent the occurrence of events which would otherwise trigger breaches of international law, are therefore problematic. Removing the necessity for flight, as in the creation of a ‘security zone’ or ‘safe haven’ in northern Iraq in 1991, is vastly different from preventing flight for those who are in need of international protection. Through pre-entry clearance at Prague airport, the United Kingdom obstructed access for asylum seekers, such that there was no lawful way for an asylum seeker to travel to the United Kingdom.190 The deliberate implementation of such measures, the express purpose of which is to prevent the State’s international obligations from ever being triggered, opens up the perennial question of abuse of rights in international law, and the operation of the principle of good faith.

Although the House of Lords ultimately rejected the good faith argument in the Roma Rights case, it did so on the basis of the principle’s relation to the 1951 Convention alone, rather than other aspects of human rights law.191 Lord Hope (p. 389) observed that the 1951 Convention, in terms, ‘does not require the state to abstain from controlling the movements of people outside its borders who wish to travel to it in order to claim asylum’.192 He reasoned:

The conclusion must be that steps which are taken to control the movements of such people who have not yet reached the state’s frontier are not incompatible with the acceptance of the obligations which arise when refugees have arrived in its territory. To argue that such steps are incompatible with the principle of good faith as they defeat the object and purpose of the treaty is to argue for the enlargement of the obligations which are to be found in the Convention.193

The good faith argument had been put to the court in much broader terms. It had been argued that the actions of the United Kingdom and the Czech Republic demonstrated a lack of good faith in relation both to the 1951 Convention, and to ICCPR66, the 1966 International Convention for the Elimination of All Forms of Racial Discrimination (ICERD66), and ECHR50.194 The court did not refer to these in its judgment, but dealt only with the issue of good faith in relation to particular non-arrival measures. Nevertheless, in certain contexts, such as physical interdiction, the principle of good faith may still serve to underline the illegality of State action, by delimiting the lawful extent of deterrence measures, given the possibility for refoulement or chain refoulement.

In its Advisory Opinion on Reservations to the Genocide Convention, the International Court of Justice stated that in the area of human rights law, of which refugee law is an integral part, treaties have ‘a purely humanitarian and civilizing purpose’. In such treaties:

the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in… convention[s] of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.195

While there is no provision in the 1951 Convention that expressly mandates States to process asylum seekers within their borders, a combination of provisions (no penalties for illegal entry, non-discrimination, non-refoulement, access to courts, and the status which Contracting States owe to refugees) reinforces the object and purpose of the 1951 Convention as assuring to refugees ‘the widest possible exercise of… fundamental rights and freedoms’.196 States are responsible for refugees in their territory, as well as those whom they subject to enforcement action beyond their territorial jurisdiction. This responsibility entails ensuring that refugees are not returned in any manner to territories in which they face—or (p. 390) risk return to—persecution, torture, or other cruel, inhuman or degrading treatment or punishment; and, if sent elsewhere, that they have access to protection and durable solutions.

Furthermore, for States to seek to avoid their obligations by contracting them out to other States frustrates the goals of the multilateral treaty regime and is incompatible with the 1951 Convention’s object and purpose.

The principle of good faith requires States to consider the use of reasonable alternatives proportionate to its policy objectives in international affairs, which are least likely to violate its international obligations.197 The broader international protection regime, comprising refugee law, human rights law, and more generally applicable rules informed by the principle of good faith, provides a normative and institutional framework for solutions. The very nature of the international protection regime is premised on States not acting unilaterally and in their own self-interest. Indeed, a State that sends out a message of unilateral disregard of the principles of international cooperation will inevitably lead to a disinclination on the part of other States to contribute to solutions.

6.  Non-admission policies: the ‘safe’ country and the concept of ‘effective protection’

6.1  Jurisdictional Issues: Identifying the State Responsible for Determining a Claim

The principle of access to a fair and efficient procedure for the determination of claims to asylum and refugee status has long been a cardinal principle in UNHCR’s protection policy, and has been endorsed with equal consistency by the UN General Assembly.198 In practice, however, various devices may be employed to keep asylum seekers from the procedural door. In addition to the interception measures described above, the notion of the ‘safe country’ (whether of origin or asylum) creates a further buffer zone between the countries from which asylum seekers have fled and the States in which they hope to find protection.

Debate over the right of access to procedures and the related question of responsibility to determine claims continues in various fora. The UNHCR Executive (p. 391) Committee in 1985, for example, examined the question of so-called irregular movements of refugees and asylum seekers, defined to include those who move, without first obtaining authorization, from countries in which they have already found protection in order to seek asylum or permanent resettlement elsewhere.199 Executive Committee Conclusion No. 58, finally adopted in 1989, recognized that there might be compelling reasons for such onward movement, and emphasized that return should only be contemplated where the refugee was protected against refoulement, allowed to remain in the country in question, and treated in accordance with basic human rights standards pending a durable solution.

Since then, both the Executive Committee and the UN General Assembly have repeatedly endorsed the general principle of access to refugee procedures,200 and the specific need for agreement on responsibility.201 An increasing trend has been for States to emphasize that non-refoulement does not stand in the way of returns to ‘safe third countries’.202 Generally, however, States have accepted that ‘the fundamental criterion when considering resort to the notion (of safe third country), [is] protection against refoulement’.203

The fact of an asylum seeker’s presence in or transit through a State does raise certain issues of jurisdiction. However, at first glance, and from the perspective of customary international law, these appear more permissive than mandatory, in the sense that such a State may determine whether an asylum seeker is a refugee, but is not obliged so to determine unless minded to return the individual to a country in which his or her life or freedom may be threatened. Possible exceptions, such as arise in the case of obligations to extradite or to prosecute, are almost exclusively based on formal agreements.

(p. 392) 6.2  The ‘Safe Country’ Mechanism

Under international law, States are responsible for examining asylum claims made in their territory or jurisdiction. However, at a procedural level, a number of States deny access to national protection determination processes if an asylum seeker could have obtained effective protection elsewhere.204 The concept of the ‘safe country’ is a procedural mechanism for shuttling asylum seekers to other States said to have primary responsibility for them, thereby avoiding the necessity to make a decision on the merits because another country is deemed or imagined to be secure.205 This technique encourages the use of accelerated procedures,206 and typically reduces or excludes rights of appeal.207 While there is no necessary connection between having had a previous opportunity to apply for asylum/refugee status and thereafter being able to access the full range of refugee entitlements, this approach has been largely followed in practice, particularly among European States. States justify this practice by arguing that an individual genuinely fleeing persecution would seek asylum in the first non-persecuting State, and that any ‘secondary’ movement is therefore for migration, rather than protection purposes. This argument is flawed for a number of reasons. First, the blanket designation of States as ‘safe’ neglects to take into account the individual circumstances of the asylum seeker, which may in fact make the country unsafe for him or her, for example, by reason of membership of a minority group.208 As the House of Lords noted in this context, ‘[g]eneral rules cannot cater for every situation’;209 a country may be safe for some groups of asylum seekers but not for others. Secondly, international law does not impose a duty on an asylum seeker to seek protection in the first State in which effective protection might be available. Thirdly, international law would appear to recognize a right to at least limited choice about where asylum is sought, especially where family members already reside in another State.210

(p. 393) 6.3  ‘Effective Protection’

While the ‘safe country’211 concept arises in a number of different contexts—safe country of origin, safe first country of asylum, and safe third country—each raises the same fundamental concern: whether ‘effective protection’ is available.212 From an international law perspective, the principal issue is the safety of the State to which return of the asylum seeker is contemplated. Other relevant considerations include the procedural safeguards in place in the third State, and the connection between the receiving State and the asylum seeker.

In order for States to observe their non-refoulement and human rights obligations, a precondition to exercising the safe third country mechanism is that the third State can provide the individual with ‘effective protection’. A refugee enjoys fundamental human rights common to citizens and foreign nationals; where these are generally assured, where due process of law is acknowledged, and where measures of appeal and judicial review permit examination of the merits and the legality of administrative decisions, then the refugee also may be sufficiently protected.213 The term ‘effective protection’ is frequently invoked by States but lacks (p. 394) a clear and uniform definition. UNHCR’s approach focuses on the legal limitations on the transfer of asylum seekers to third States.214 While the legal framework in a particular State is important in determining whether or not it is ‘safe’, even more significant is what it does in practice. The simple Ratification of human rights and refugee instruments does not equate to compliance with their standards.215 Respect for the principle of non-refoulement is a necessary element of effective protection, but is not of itself conclusive.216

UNHCR has indicated that ‘[u]nder certain circumstances and with appropriate guarantees in the individual case, the transfer of responsibility for assessing an asylum claim to another country may be an appropriate measure’,217 but cautions strongly against returns where there is no individual assessment of risk, but simply a list of countries deemed to be safe. ‘A country may be “safe” for asylum-seekers of a certain origin and “unsafe” for others of a different origin, also depending on the individual’s background and Profile.’218 Removal will constitute unlawful deportation—and may result in refoulement by the third State, for which the first State may be jointly liable219—unless it can be ascertained that each individual will be readmitted to the third country, will enjoy effective protection against refoulement, will have the possibility to seek and enjoy asylum, and will be treated in accordance with accepted international standards.220

In 2004, UNHCR’s Director of International Protection clarified that protection could only be considered adequate,

if the risk of persecution, refoulement or torture was non-existent; if there was no actual risk to a person’s life; if a genuinely accessible and durable solution was in prospect; if a person was not exposed to arbitrary expulsion and deprivation of liberty, and had an adequate and dignified means of subsistence; if family unity and integrity was preserved; and if specific protection needs (such as those arising from age or gender) were recognized and respected.221

She noted that States should not use the ‘safe country’ concept to shirk their international legal responsibilities towards asylum seekers or refugees, observing that (p. 395) the 1951 Convention ‘was more concerned to ensure a certain standard of protection rather than to ensure that protection was available in a particular country’.222 The Human Rights Committee has expressed similar concerns about the ‘safe third country’ principle. In its view effective protection in accordance with articles 6 and 7 ICCPR66 requires that refugee claims be assessed on an individual basis, and the application of ‘safe third country’ mechanisms may prevent this.223

As part of UNHCR’s Global Consultations in 2001, the Lisbon Expert Roundtable found that protection is only ‘effective’ in a third State if the asylum seeker does not fear persecution there, is not at risk of being sent to another State in which effective protection would not be forthcoming, has access to means of subsistence sufficient to maintain an adequate standard of living, and has his or her fundamental human rights respected in accordance with international standards. Furthermore, the third State must have expressly agreed to admit the individual as an asylum seeker or refugee, comply with international refugee and human rights law in practice (not just in theory),224 grant access to fair and efficient determination procedures which include protection grounds that would be recognized in the State in which asylum was originally sought,225 take into account any special vulnerabilities of the individual, and maintain the privacy interests of the individual and his or her family.226 NGOs have suggested that the concept of ‘effective protection’ must encompass at least physical and material security, access to humanitarian assistance, access to secondary education and livelihood opportunities, timely access to durable solutions, a functioning judicial system, the rule of law, and respect for refugees’ rights, including protection from refoulement and respect for their fundamental (including socio-economic) rights.227

At present, the most that can be said is that international law permits the return of refugees and asylum seekers to another State if there is substantial evidence of admissibility, such as possession of a Convention travel document or other proof of entitlement to enter. With respect to the ‘safe country’ notion, there must be substantive and procedural human rights guarantees.228 Compliance with the principle of non-refoulement under article 33 of the 1951 Convention and human (p. 396) rights law more broadly is a key factor. Non-refoulement is most likely to be observed if there is access to a fair and effective procedure for the determination of claims to refugee status, in accordance with prevailing international standards. However, formal effectiveness may be prejudiced by restrictions on access, for example, because of time limits, geographical limitations on the extent of obligations, policy reasons affecting particular groups, or legal reasons affecting certain classes, such as illegal entrants. In any case, actual return is likely to satisfy a best practice standard only if the receiving State is able to provide certain effective guarantees, including (a) willingness to readmit asylum seekers; (b) acceptance of responsibility to determine claims to refugee status, notwithstanding departure from the country in question or the circumstances of initial entry; (c) the treatment of applicants during the determination process in accordance with generally accepted standards;229 and (d) some provision with respect to subsistence and human dignity issues, such as social assistance or access to the labour market in the interim, family unity, education of children, and so forth. Besides the question of fulfilment of obligations deriving from the 1951 Convention/1967 Protocol, a country’s human rights record will also be relevant. This may include both procedural and substantive standards, including questions of remedies, non-discriminatory or equivalent treatment with local nationals, and protection of fundamental human rights.

6.4  The 2005 European Union Procedures Directive

The Procedures Directive,230 adopted as part of the first phase of the Common European Asylum System established under the Amsterdam Treaty,231 establishes (p. 397) a harmonized approach by the EU Member States to the minimum procedural standards for granting and withdrawing refugee status.232 It is the first supranational instrument containing rules on the application of safe third country, safe country of origin, and country of first asylum notions, and will have a major impact on access to asylum determination procedures in the EU. Although the Preamble acknowledges that designating a country as a safe country of origin ‘cannot establish an absolute guarantee of safety for nationals’,233 the instrument lacks sufficient safeguards to ensure that return will safeguard the principle of non-refoulement in all cases.234

Under the Directive, the concept of admissibility is ‘restricted to determining whether the Member State in question should consider the substance of the application, or whether the applicant should be sent to a third country’.235 An asylum application is deemed inadmissible if, inter alia, the asylum seeker can be transferred to another Member State in accordance with the Dublin Regulation;236 another Member State has already granted refugee status;237 the asylum seeker has already obtained protection in another, non-Member State (‘first country of asylum’238); or the asylum seeker has transited through, or otherwise has access to, a ‘safe third country’ in which protection could be requested.239 Similarly, where an asylum seeker is considered to come from a safe country of origin, the asylum claim may be presumed to be manifestly unfounded and subject to an accelerated (p. 398) procedure.240 By implication, article 7(2) of the Qualification Directive suggests that an asylum seeker’s country of origin will generally be safe where the State (or parties or organizations controlling all or part of it) ‘take[s] reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection’.241 The test that has typically been used by the European Court of Human Rights for determining whether a country is sufficiently safe for an individual’s return is whether it has created effective criminal law measures, provides policing and criminal justice systems to enforce them, and whether it takes ‘reasonable operational measures where there is a “real and immediate” risk to the life of a particular individual from the criminal acts of another person’.242 Lambert argues that this test is arguably higher than that in the Qualification Directive, since it rests on a State’s duty to protect its nationals and aims at reducing harm to less than a ‘real risk’.243

A ‘first country of asylum’ is defined in article 26 of the Procedures Directive as one in which an applicant was recognized as a refugee and can still avail him- or herself of that protection, or where he or she can otherwise enjoy ‘sufficient protection’, including the benefit of the principle of non-refoulement, if readmitted.244 According to Legomsky, ‘[t]he longer, the more meaningful, the more formal, and the more secure the person’s stay in the third country, the more likely it is that the country will be described as a “first country of asylum” rather than a “safe third country”’.245 There is no duty on Member States to allow challenges to the application of this concept, despite the fact that Member States are not required to obtain conclusive evidence that an individual has already been granted protection in a particular State which remains accessible and valid.246 While a claimant (p. 399) may appeal a decision on inadmissibility,247 this will not necessarily have suspensive effect, thus rendering the right to appeal nugatory. Furthermore, if the third State refuses to admit the asylum seeker, then Member States must ensure that access to an asylum determination procedure is granted.248 The Procedures Directive overlooks the fact that secondary movement from a first country of asylum may be lawful where an individual no longer enjoys effective protection, is not given a proper legal status, or does not have access to effective remedies.

The ‘safe third country’ concept is defined in article 27. It may be applied where a Member State is satisfied that an asylum seeker will be treated according to the following principles in the third State: the asylum seeker’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion; the principle of non-refoulement, in accordance with the 1951 Convention and with respect to torture and cruel, inhuman or degrading treatment, will be respected; and the asylum seeker may request refugee status and obtain protection in accordance with the 1951 Convention if found to be a refugee.249 In contrast to the ‘first country of asylum’ procedure under article 26, Member States must ensure that an asylum seeker has access to a determination procedure if the third country to which return is contemplated refuses to readmit him or her.250 Under national law, Member States must establish rules requiring a reasonable connection between the asylum seeker and the third country. While the Explanatory Memorandum states that the meaning of ‘connection’ is to be based on Executive Committee Conclusion No. 15 (1979), which identifies such matters as family links or previous stay,251 the fact that this is left to the discretion of individual States means that practice may be highly variable.

Although it appears that article 27 requires Member States to conduct an individual case-by-case assessment of the safety of a particular country for a particular applicant, this is misleading. Member States may adopt their own national methodology for determining how the concept applies, and this specifically permits ‘national designation of countries considered to be generally safe’.252 Costello argues that this gives Member States ‘an option to ignore the individual circumstances and privilege the generalised determination of safety’.253 The Explanatory Memorandum further suggests that a Member State is only required to examine individual claims if ‘there has so far been no precedent with respect to the safety of this country for an applicant of his nationality’.254 If the Member State has ‘already successfully designated the third country as a safe third country…or has issued a policy statement to that end, for instance by putting the country on its list of safe third countries, there is no need to carry out this investigation’.255 This (p. 400) is subject only to the requirement that Member States must, in accordance with international law, at least permit the asylum seeker ‘to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment’.256 While the importance of this rebuttable presumption should not be understated, an individual’s safety in a third State entails more than simply protection from ill-treatment.257

This raises serious questions about the integrity of the principle of non-refoulement. A country that may be ‘generally safe’ may not be safe for a particular individual or minority group. Furthermore, circumstances can change quickly, and a State designated as generally safe may not remain so. Since asylum seekers considered to have access to a safe third country may be subject to accelerated procedures,258 gathering sufficient evidence to challenge the assumption may prove difficult in the shortened timeframe. Accelerated procedures are not subject to the already minimal level of procedural protections contained in the Procedures Directive. Finally, even though decisions made under article 27 may be appealed, appeals do not necessarily have suspensive effect.259

An even more restrictive approach applies to asylum seekers who illegally enter an EU Member State from ‘European safe third countries’. This has been described as the ‘super safe’ third country concept, because it assumes the inherent safety—without recourse to individual examination—of any State which has ratified and observes the 1951 Convention and ECHR50 (including with respect to effective remedies), has an asylum procedure prescribed by law, and has been designated as a safe third country by the Council.260 Under article 36, Member States have the discretion to refuse to consider an application made by an asylum seeker arriving from such a country,261 and there is no opportunity for the asylum seeker to rebut the presumption of safety. It has been rightly argued that this could lead to cases of refugees in orbit or chain refoulement.262 Member States may provide for exceptions on humanitarian or political grounds, or for reasons of public international law.263 If the safe country refuses to readmit the asylum seeker, then the host Member State must ensure access to a determination procedure.264

The Dublin Regulation,265 which superseded the Dublin and Schengen Conventions in 2003, establishes the criteria and mechanisms for determining (p. 401) which Member State has responsibility for examining an asylum application. Its expressed aim is to identify a single responsible State and to require it to determine the asylum claim, thereby reducing the likelihood of multiple, successive applications by asylum seekers, and eliminating asylum seekers ‘in orbit’. States retain the discretion to examine an asylum claim lodged by an applicant who could be removed pursuant to the Dublin Regulation,266 or to send an asylum seeker to a safe third country other than a Member State.267 The Regulation is premised on the harmonized application of asylum law in the EU, which has been significantly strengthened by the shift of asylum and migration matters from the third to the first pillar under the Treaty of Amsterdam268 and the adoption of binding asylum Directives.269 Its operation is facilitated by mechanisms such as the Eurodac Regulation, which collates and compares fingerprints of asylum applicants and illegal migrants in order to assist in establishing the Member State responsible for examining a particular application.270 Responsibility under the Dublin Regulation is determined according to a hierarchy of criteria, including the presence of family members (strictly defined),271 the possession of a valid residence document or visa,272 and the first Member State entered irregularly.273

A review of the Regulation’s operation by ECRE three years after its adoption revealed ‘intrinsic flaws’ and ‘a failure by states to properly implement it’.274 Contrary to the Regulation, many applicants were being denied both access to an asylum procedure in the responsible State,275 and an effective opportunity to (p. 402) appeal against transfer. While the Dublin Regulation and its predecessor conventions may in theory have curbed the problem of the ‘refugee in orbit’, shuttled from State to State within the EU, the wider application of the safe country concept under the Procedures Directive may in fact precipitate this. Indeed, the absence of a duty on Member States to ensure that asylum seekers will be guaranteed access to an effective asylum procedure on return, means that asylum seekers may be moved on to other States, and may be refouled or left ‘in orbit’. Removing an asylum seeker to another State for status determination does not absolve the removing State of its responsibilities under international law, and it may also be liable if that individual is subsequently refouled to persecution or other ill-treatment.276

In addition to designating third countries as safe, the Procedures Directive contains elaborate rules for determining when an asylum seeker’s country of origin is sufficiently safe for return. The effect is to deny substantive consideration of protection claims made by nationals of particular States on the basis of a generic Classification of those States as safe. Article 29 provides that the European Council, following consultation with the European Parliament, must adopt (and may subsequently amend) a minimum common list of ‘safe countries of origin’.277 Member States are required to regard such countries as ‘safe’, and may independently add to these, but not subtract from them, through national lists.278 Costello warns that this raises serious ‘competence concerns’, since the EU is only permitted to establish ‘minimum standards’ in this area, yet precludes Member States from adopting higher standards on this point.279 States which, before the adoption of the Directive, had legislation in place deeming certain countries to be safe may retain it. However, they must be satisfied that persons in those third countries are generally not subjected to persecution or to torture or inhuman or degrading treatment or punishment.280

The criteria for determining a safe country of origin are set out in Annex II of the Procedures Directive. A country of origin is deemed ‘safe’ if:

on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

(p. 403) In assessing this, consideration must be given to the extent to which protection is provided against persecution or mistreatment by the country’s laws and regulations, and the manner in which they are applied; whether the rights and freedoms provided for in ICCPR66, CAT84, and ECHR50 are observed (especially those which are non-derogable); whether the principle of non-refoulement under the 1951 Convention is respected; and whether there is a system of effective remedies against violations of such rights and freedoms. As Costello notes, the EU’s ‘politicised decision-making process may often lead to foreign policy concerns tainting the objectivity of the assessment’.281

Article 31 provides that a designated country of origin is ‘safe’ if an asylum seeker is a national (or stateless and a prior habitual resident) of that ‘safe’ State, and has not submitted serious grounds for considering the country not to be safe, based on his or her particular circumstances.282 Furthermore, there is no right of appeal with respect to safe country of origin decisions, in contrast to decision on inadmissibility283 or ‘safe third country’ under article 36.284 However, appeals do not necessarily have suspensive effect285 and asylum seekers only have a right to remain pending initial determination.286 The individual may therefore be refouled before the case is heard, effectively rendering the appeal right ‘illusory’. This raises questions of compatibility with the right to an effective remedy under article 13 ECHR50. The European Court of Human Rights has held that provided a complaint is arguable,287 article 13 requires a remedy that is ‘effective’ in practice as well as in law.288 In Jabari v. Turkey, the Court stated:

given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned.289

6.5  ‘Safe Country’ Notions Elsewhere

Although it originated in Europe,290 the safe third country mechanism is now much more widespread, but also highly varied in its application. Australia developed a comprehensive jurisprudence on the notion of ‘effective protection’ in a (p. 404) long line of decisions beginning with Thiyagarajah,291 which were ultimately overturned by the High Court in 2005.292 In Thiyagarajah, the Full Federal Court established that Australia did not owe protection obligations to any person whom it could remove to any other State in which effective protection would be provided. This interpretation was based on section 36(2) of the Migration Act 1958 (Cth), requiring asylum seekers to show that there was no other country in which they could obtain effective protection, even if they were refugees within the meaning of the 1951 Convention and even if protection in that other country encompassed little more than tolerated presence.293 In NAGV, the High Court rejected this interpretation, holding that Australia owes protection obligations to any person in Australia who satisfies the definition of a refugee, not just to those who cannot be removed to a ‘safe third country’. The Minister argued that the first appellant’s right of return to Israel meant that Australia did not owe him or his wife ‘protection obligations’ under section 36(2). However, the court held that if Parliament had intended to provide for the removal of any person who could claim protection in a third country, it should have done so in plain terms. Amendments to the Migration Act adopted in December 1999 achieved this.294

Kirby J., who agreed with the majority but gave separate reasons, was strongly critical of the approach that would prevent protection visas from being granted to Convention refugees who may be entitled by law, regardless of on what basis, to another State’s protection.295 ‘It would be an absurd result if the generosity of other States’ refugee laws meant that Australia was thereby relieved of international obligations that it voluntarily accepted with other nations. Such a result should not be reached by implication.’296 However, although the revised legislation cited above contains exceptions for people who would be persecuted (or subjected to ‘chain refoulement’) on the basis of article 1A(2) of the 1951 Convention,297 there is no requirement to consider ill-treatment on the basis of torture or cruel, inhuman or degrading treatment or punishment even temporary protection in a third State is seen as sufficient for removing a person.

In addition to limiting the concept of ‘protection obligations’, Australian legislation also deals with the meaning of ‘safe third countries’, in section 91D of the Migration Act. Such countries are prescribed under the regulations (thus, there is a safe list), as are the requisite ‘connections’ that individuals must have for a country (p. 405) to be considered safe.298 These include factors such as presence in the third country at a particular time, and a right to enter and reside in that country, but real or practical connections are not, of themselves, considered relevant. For a country to be deemed safe, the Minister must provide Parliament with information about the country’s compliance with ‘relevant international law concerning the protection of persons seeking asylum’; whether the country meets ‘relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country’; and that country’s willingness to (a) accept returned asylum seekers, (b) allow them to remain there while their protection claims are determined, and (c) if found to be refugees, remain there until a durable solution can be found. This falls short of requiring a guarantee for readmission. Additionally, section 91M provides that any non-citizen who ‘can avail himself or herself of protection from a third country’, either because of nationality or some other right to re-enter and reside there, ‘should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa.’ Section 91N(3) authorizes the Minister (after receiving any advice that UNHCR may provide) to designate a country as one which:

  1. (i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

  2. (ii)  provides protection to persons to whom that country has protection obligations; and

  3. (iii)  meets relevant human rights standards for persons to whom that country has protection obligations.

If an asylum seeker has ever resided in a designated country for a continuous period of at least seven days, and has a right to re-enter and (temporarily) reside in that country, then he or she is barred from applying for a protection visa in Australia.299 Although the Minister has a discretion to waive this provision if he or she considers that the individual concerned may not be able to avail him- or herself of protection in that designated country, it is a non-compellable, personal discretion which need only be invoked if the Minister considers it in the public interest to do so.300 Of principal concern, from the perspective of international law, is the absence of any requirement for individual assessment once it is determined that an individual is eligible for return to a designated safe country.

By contrast, the safe third country notion has not been applied at all in New Zealand. Although section 129L(1)(d) of the Immigration Act 1987 empowers (p. 406) decision makers to determine whether, ‘in the light of any relevant international arrangement or agreement, a person who may have lodged a claim for refugee status in another country, or had the opportunity to lodge such a claim, may have a claim for refugee status accepted for consideration in New Zealand’, it has never been used. The Refugee Status Appeals Authority has disapproved of the ‘direct flight’ requirement imposed by some States.301 A 2006 discussion paper, relating to review of the Immigration Act 1987, recommends against the EU approach of establishing safe country lists, on the ground that such provisions signal a shift away from individual determination, are not advocated by UNHCR, and can lead to refoulement if individual circumstances are not considered.302

The United States enacted a safe third country provision in 1996, which is premised on the United States entering into agreements with third States, rather than drawing up a list of safe countries.303 A ‘safe third country’ is defined as one in which the asylum seeker’s life or freedom would not be threatened for a 1951 Convention reason, and he or she ‘would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection’.

Under Canadian law, section 101(1)(e) of the Immigration and Refugee Protection Act provides that a protection claim may be declared ineligible if an applicant has come ‘directly or indirectly’ from a State designated by regulation. Regulation 159.3 designates the United States as such a country, noting that it ‘complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture’.

Pursuant to these provisions, the United States and Canada entered into a bilateral safe third country agreement which took effect on 29 December 2004,304 under which asylum seekers may be returned to the first North American country they entered.305 In comparison with the Canadian protection system, asylum processes in the United States are restrictive, and it has been argued that the United States cannot always be considered a safe third country for asylum seekers.306 The agreement has (p. 407) reduced the numbers of asylum seekers able to claim asylum in Canada by up to fifty per cent at the land border.307 It has thereby restricted access to protection in a State which applies broader criteria, imposes a lower standard of proof, and has more extensive procedural guarantees.308

In December 2005, the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches, in conjunction with an asylum seeker, launched a challenge to the Safe Third Country Agreement in the Federal Court of Canada, claiming it is unconstitutional and in contravention of international law. The groups will ask the Federal Court to overturn the designation of the United States as a safe third country, on the basis that it does not respect its obligations under the 1951 Convention and the Convention against Torture, and that Canada’s removal of asylum seekers to the United States violates its own international obligations and the rights of asylum seekers under the Canadian Charter.309

6.6  Readmission Agreements

Apart from the responsibility-determining context of the Dublin Regulation and US-Canada agreement, State practice has been mostly unilateral, in the sense that one or other State has declined to consider an asylum application or extend protection, after determining, generally without consultation, that another State was responsible. Alternatively, asylum seekers have been dealt with under general bilateral agreements on the readmission of nationals and non-nationals, but without the issue of responsibility for asylum determination being considered.

Having a ‘safe third country’ rule in national legislation is one thing; being able effectively to implement it, quite another, and in places, a marked chasm separates rhetoric and reality, whether it relates to other States’ compliance with obligations towards refugees and asylum seekers, or to the effectiveness of removal policies. Readmission agreements have become increasingly common. These are typically bilateral arrangements between States, which oblige States to readmit their own nationals and sometimes also non-citizens who have transited through the country.310 They are primarily border control mechanisms which focus on all irregular (p. 408) entrants, not just asylum seekers. Accordingly, they often make no specific provision for asylum seekers and refugees, and do not necessarily require the receiving State to assess the asylum claim, let alone provide protection. They are simply an agreement to readmit an individual, and without more, may lead to breaches of the principle of non-refoulement.311 Both practice and principle suggest that inter-State agreements on responsibility, return, and procedural and substantive guarantees, including non-refoulement, are essential if the protection of refugees is to be effective.312

6.7  Extraterritorial Processing

The concept of ‘effective protection’ arises in another context: extraterritorial processing. This concept, examplified by the Australian Pacific Strategy, has been described by UNHCR as an example of ‘a general narrowing of access to asylum procedures across the region’.313 The rationale behind extraterritorial processing may be seen as twofold: first, to keep asylum seekers geographically distant from potential asylum States, and secondly (and relatedly) as an attempt to distance States from their legal obligations to them.314 Although transferring asylum seekers ‘offshore’ cannot divest the receiving State of its international obligations, it (p. 409) sends a strong message to asylum seekers that they are not welcome, and may result in refugee warehousing, the practice by which refugees are kept ‘in protracted situations of restricted mobility, enforced idleness, and dependency—their lives on Indefinite hold—in violation of their basic rights under the 1951 UN Refugee Convention’.315

In March 2003, the United Kingdom proposed the creation of an extraterritorial regime, intended as a radical new approach to asylum processing rather than merely a complement to existing procedures.316 The aim was to develop a system of legal migration to Europe, including through resettlement (not a traditional element of EU asylum policy).317 It proposed the establishment of regional protection areas for asylum seekers close to major refugee-producing countries, as well as transit processing centres, located in transit countries or on the external borders of the EU, to which asylum seekers arriving in the EU could be returned for processing. These centres would effectively act as camps from which refugees could be resettled or locally integrated.318

Aligning itself with UNHCR’s ‘Convention Plus’ Initiative, the UK proposal sought to ‘deal more successfully with irregular migrants within their regions of origin’ through four strategies: working to prevent the events that precipitate population movement; working to ensure better protection in the regions from which asylum seekers come; developing a quota-based resettlement system; and raising awareness and acceptance of State responsibility to accept returnees. Included in this proposal was the possibility of moving asylum seekers already in (p. 410) Europe back to regional processing centres for status determination or even temporary protection, provided that the domestic courts of EU Member States were satisfied with the level of protection provided there. With respect to temporary protection, the centres were envisaged as holding blocks for persons found not to be Convention refugees, but who could not yet be returned to their countries of origin due to prevailing conditions of unrest or violence. In effect, it would act as a replacement for forms of complementary or humanitarian protection in Member State territory, without the necessary assurances and legal protection guaranteed there.

The other aspect of the proposal was to establish transit processing centres in third States (presumably transit countries), to which asylum seekers reaching the EU could be returned to have their protection claims assessed. It was to be managed by the IOM in accordance with UNHCR-approved screening procedures. Persons identified as having a protection need would subseqently be resettled in the EU in accordance with burden-sharing policies, or granted temporary asylum there. The aim of this approach was to ‘act as a deterrent to abuse of the asylum system, whilst preserving the right to protection for those who are genuinely entitled to it’.319 While the proposal recognized the application of the 1951 Convention and the ECHR50 to such procedures, it did not elaborate how these would be engaged or applied.

The Commission examined the proposal and, while it shared the UK government’s concerns about the deficiencies of the current asylum system, it did not endorse the mechanisms proposed to address them.320 At the Thessaloniki European Council in June 2003, a number of States expressed significant opposition to the UK proposal for transit processing centres, and in 2003 the government confirmed that it was no longer pursuing this option.321 The European Council then invited the Commission to have a thorough look at ways to ensure ‘orderly and managed entry’ to the EU of those in need of protection, at how to enhance regional protection capacity, and at the legal implications.322 UNHCR proposed a similar EU-based asylum procedure, with pre-screening and registration being undertaken at the EU rather than national level, and the eventual establishment of an EU Asylum Agency.323

(p. 411) Though initially met with widespread rejection,324 extraterritorial controls have recurred in various guises since 2003.325 While there is still insufficient support for an EU-wide processing model, a number of States have developed pilot schemes, such as Italy’s removal of asylum seekers arriving on Lampedusa to transit centres in Libya since 2004. Such procedures may breach the 1951 Convention and the ECHR50, especially where receiving States (such as Libya) are not party to those instruments. Although the 1951 Convention does not prescribe admission or determination procedures, the Executive Committee has continually stressed that States have an obligation to admit asylum seekers, at least temporarily, to provide access to fair and effective asylum procedures.326 In order to comply with the principle of non-refoulement, this obligation requires States not to remove individuals to other territories for processing unless it can be determined that, for the individual concerned, the particular country is ‘safe’.327 Certainly, States cannot extract themselves from their international legal obligations by removing asylum seekers to third States. The House of Lords Select Committee on the EU objected strongly to the establishment of extraterritorial asylum processing as an alternative to national determination procedures. It noted the importance of ensuring ‘effective protection’ in any extraterritorial processing system,328 and that the application of the ‘safe third country’ concept must be individually scrutinized in each case, rather than systematically applied where certain objective conditions are met.329 Amnesty International viewed the proposals as an attempt by States to circumvent their international legal obligations, by ‘denying access to territory (p. 412) and shifting the asylum-seekers to processing zones outside the EU, where responsibility, enforceability and accountability for refugee protection would be weak and unclear’.330

7.  Standards of treatment for asylum seekers and refugees

The 1951 Convention does not expressly enumerate the rights of asylum seekers who have not yet been recognized as refugees. Certain rights, however, must inevitably attach until status is determined for the system of protection envisaged by the Convention to operate effectively. Thus, asylum seekers must benefit from non-refoulement under article 33 until it has been finally determined that they are not refugees or otherwise in need of international protection. UNHCR has described the gradations of treatment in the Convention as ‘a useful yardstick in the context of Defining reception standards for asylum-seekers. At a minimum, the 1951 Convention provisions that are not linked to lawful stay or residence would apply to asylum-seekers in so far as they relate to humane treatment and respect for basic rights’.331

Additionally, international and regional human rights instruments and norms elaborate standards of treatment for all people within a State’s territory or jurisdiction, and emphasize the principle of non-discrimination.332 While human rights entitlements may in some respects be more extensive than the treatment for refugees envisaged by the Convention, they are frequently difficult to access.333

At a minimum, procedures should conform with standards set down by various Executive Committee Conclusions. For example, Conclusion No. 93 (2002) requires, inter alia, that asylum seekers have access to assistance for basic support needs, such as food, clothing, accommodation, medical care, and respect for privacy; that reception arrangements are sensitive to gender and age, in particular the educational, psychological, recreational, and other special needs of children, and the specific needs of victims of sexual abuse and exploitation, trauma and torture; and that family groups be housed together. Executive Committee Conclusion No. 8 (p. 413) (1977) stipulates, inter alia, that recognized refugees be issued with documentation certifying that status and that persons not recognized as refugees have a reasonable time to appeal. Numerous Conclusions emphasize that UNHCR should be given access to asylum seekers, and asylum seekers should be entitled to have access to UNHCR.334 Above all, treatment must not be inhuman or degrading.335

In the EU, the Reception Conditions Directive lists minimum entitlements owed by Member States to individuals seeking protection as Convention refugees.336 By contrast to the aspirational tone of international and regional human rights instruments, the Directive is very restrictive and reflects the idea that rights are a privilege, rather than matters of duty on the part of the State. Under that instrument, asylum seekers do not have to be granted complete freedom of movement in the Member State, and may be assigned an ‘area’ in which they are permitted to move.337 A place of residence may be assigned for reasons of public interest, public order, or for processing and effective monitoring,338 and individuals may be confined to a particular place for legal reasons or public order,339 although States must make provision for the possibility for temporary leave from the assigned place.340 Although the practice has often been used by European (and other) States, assigned residence potentially contravenes articles 26 and 31(2) of the 1951 Convention, which permit States to curtail asylum seekers’ movement only until their identities are established and basic security concerns have been investigated (regularization of status).341 Where States provide housing, they must respect family unity as much as possible.342 Housing may be an accommodation centre, provided it guarantees an adequate standard of living, protects family life, and permits communication with relatives, lawyers, and NGOs.343

Under the Directive, access to employment may be restricted for up to at least a year,344 and even once granted, priority may be given to citizens of the EU, States parties to the EEA Agreement, and legally resident third-country nationals.345 (p. 414) Access to vocational training may be provided,346 but health care may be restricted to emergency medical treatment and essential treatment of illness.347 Member States must ensure ‘a standard of living adequate for the health of applicants and capable of ensuring their subsistence’,348 in particular for persons in detention or with special needs, but may limit access to all or part of the reception conditions and health care entitlements to those asylum seekers who cannot support themselves.349 Furthermore, article 16(2) allows States to deny benefits in cases where an asylum seeker did not lodge the asylum claim as soon as practicable after arrival in the Member State. In some cases, this may lead to breaches of article 3 ECHR50.350

8.  Conclusion

The plight of the refugee in search of asylum has been a dominant theme on the international agenda since the late 1970s, as is evident from repeated appeals by the Executive Committee, the General Assembly, intergovernmental organizations and other concerned bodies.351 At one level, State practice nevertheless permits only one conclusion: the individual still has no right to be granted asylum. The right itself is in the form of a discretionary power—the State has discretion whether to exercise its right, as to whom it will favour, and, consistently with its obligations generally under international law, as to the form and content of the asylum to be granted. Save in so far as treaty or other rules confine its discretion, for example, by requiring the extradition of war criminals, the State remains free to grant asylum to refugees as defined by international law or to any other person or group it deems fit. It is likewise free to prescribe the conditions under which asylum is to be enjoyed. It may thus accord the refugee the right to permanent or temporary residence, it may permit or decline the right to work, or confine refugees to camps, dependent on international assistance pending some future solution, such as repatriation or resettlement. Refugees may also be subject to measures falling short of refoulement, which nevertheless prevent them from effectively making a claim to status or asylum, or in securing admission to a particular country.

(p. 415) After 1951, many States in fact adopted the refugee definition as the criterion for the grant of asylum and, until the peremptory effect of human rights obligations made itself clear, as the sole criterion for the grant of the specific, limited, but fundamental protection of non-refoulement. Likewise, in the practice of many States party to the 1951 Convention/1967 Protocol, the recognized refugee, the person with a well-founded fear of persecution, is not only effectively entitled to asylum in the sense of residence, but is also protected against return to the country in which he or she runs the risk of persecution or other relevant harm.

There is nevertheless a certain discontinuity in the protection regime established by the 1951 Convention/1967 Protocol and general international law, and between the status of refugee and a solution to the problem of the refugee. Refugees benefit from non-refoulement and refugee status is often, but not necessarily, the sufficient condition for the grant of permanent or durable asylum. But there is no necessary connection between non-refoulement and admission or asylum. In international law, as well as in national practice, the discretion to grant asylum and the obligation to abide by non-refoulement remain divided, even as they are linked by the common definitional standards of well-founded fear or risk of torture or other relevant harm.

The ideal of asylum as an obligation on States to accord lasting solutions, with or without a correlative right of the individual, continues to be resisted. Asylum remains an institution which operates between subjects of international law. Moreover, in an era of mass exodus, of actual or perceived threats to national security, States are still not prepared to accept an obligation without determinable content or dimension. Experience shows that efforts to secure agreement on such a divisive issue are more likely to produce equivocation, Qualification, and exception, that can tend only to dilute the rules and principles already established in State practice.352 But asylum as lasting solution, though a preferred sense, represents one aspect only. State practice is not solely concerned with permanent protection, and the concept of asylum at large cannot be analysed adequately apart from the concept of refuge and the normative principle of non-refoulement. States are obliged to protect refugees, and consequently they are obliged to abide by non-refoulement through time. That time is not and cannot be determined by any (p. 416) principle of international law, but likewise the duty to accord non-refoulement through time cannot be separated in practice from that other complex duty which recognizes the responsibility of the community of States in finding durable solutions.353

So far as a State’s actions may expose an individual to the risk of violation of his or her human rights, its responsibility is duty-driven, rather than strictly correlative to any individual right. The duty not to return refugees to persecution or to a situation of danger to life or limb is owed to the international community of States which, for many purposes, is represented by UNHCR. The international community is likewise entitled to require of individual States, not only that they accord to refugees the benefit of non-refoulement through time, but also the opportunity of finding a lasting solution to their plight. The degree of protection required is that commensurate with the occasion, and given the present level of development of international law, certain exceptions in favour of the State remain. The area continues to be governed by discretion, rather than duty, but analysis reveals that discretion is not only confined by principle, but also structured in the light of other legally relevant considerations, including international solidarity, burden-sharing, and the right of functional protection enjoyed by UNHCR.

Freedom to grant or to refuse permanent asylum remains, but save in exceptional and now almost notional circumstances, States do not enjoy the right to return refugees to persecution or relevant situations of danger. Protection against the immediate eventuality is the responsibility of the country of first refuge. So far as a State is required to grant that protection, the minimum content of which is non-refoulement through time, it is required also to treat the refugee in accordance with such standards as will permit an appropriate solution, whether voluntary repatriation, local integration, or resettlement in another country. There was some support in the past for the overall primary responsibility in fact falling on the first country of refuge,354 but experience in South East Asia, Central America, Western Asia, Africa, and Europe, where so many States declined to allow refugees to regularize their status or otherwise to remain within their borders, has served to emphasize the international dimension to burden-sharing.

Although the trend towards increasingly restrictive asylum policies pre-dates 11 September 2001, security concerns following the terrorist attacks on the United States have reshaped asylum regimes in a number of States. Detention grounds have been expanded, exclusion clauses have been applied more extensively than international law permits, and stronger links have been forged between immigration, intelligence, and criminal law enforcement agencies.355 Security Council resolutions passed post-11 September 2001 on terrorism have expressly noted that ‘the protections afforded by the Refugees Convention and its Protocol shall (p. 417) not extend to any person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations’.356 Tighter migration controls, coupled with the high political Profile of illegal migration, transfer the focus away from the border to ‘elsewhere’—boats of asylum seekers, airports, people smugglers, and so on—such that the border ‘in its conventional territorial configuration is thus eroded relatively—and not just absolutely—as a site of control’.357(p. 418)


1  See generally Reale, E., ‘Le droit d’asile’, Hague Recueil (1938-I), 473; Koziebrodski, L.B., Le droit d’asile (1962); Reville, A. ‘L’abjuratio regni: histoire d’une institution anglaise’, Revue historique, (1892), 1; Trenholme, N. M., ‘The Right of Sanctuary in England’, 1 Univ. Missouri Studies, No. 5 (1903); Kimminich, O., Der internationale Rechtsstatus des Flüchtlings, (1962) 65–98; Sinha, S. P., Asylum and International Law, (1971); Grahl-Madsen, A., ‘The European Tradition of Asylum and the Development of Refugee Law’ in Macalister-Smith, P. Alfredsson, G., eds., The Land Beyond: Collected Essays on Refugee Law and Policy by Atle Grahl-Madsen, (2001); Grahl-Madsen, A., The Status of Refugees in International Law, vol. 2, (1972); Garcia-Mora, M. R., International Law and Asylum as a Human Right, (1956); Bau, I., This Ground is Holy, (1985), 124–71. For some alternative perspectives, see the articles by Gorman, R., ‘Poets, Playwrights, and the Politics of Exile and Asylum in Ancient Greece and Rome’, 6 IJRL 402 (1994); and ‘Revenge and Reconciliation: Shakespearean Models of Exile and Banishment’, 2 IJRL 211 (1990); and for an encyclopedia of comparative and historical perspective, see Gibney, M. J. Hansen, R., eds., Immigration and Asylum: from 1900 to the Present, 3 vols., (2005).

2  Reale, Hague Recueil (1938-I), 499–550, 544–54, locates the beginning of this development in the mid-eighteenth century, with its hardening into an institution after the events in Europe of 1848–49.

3  Jus Gentium Methodo scientifica Pertractatum, (1764), s. 147.

4  Ibid. s. 148; see also Vattel, E., The Law of Nations, Chitty, J., ed., I, Ch. XIX, §§229–30; Grotius, De Jure Belli et Pacis, (1646), iii. 20. xli.

5  Generally on States’ powers over entry and exclusion, see Goodwin-Gill, G. S., International Law and the Movement of Persons between States, (1978); also, Hailbronner, K., ‘The Right to Asylum and the Future of Asylum Procedures in the European Community’, 2 IJRL 341 (1990).

6  Moore, Digest, ii, 757.

7  Hackworth, Digest, ii, 622.

8  ‘The Right of Asylum’, 26 BYIL 327 (1949). See also Koziebrodski, Droit d’asile, above n.1, 24, 79–81; Simpson, J. H., The Refugee Problem, (1939), 230: ‘Asylum is a privilege conferred by the State. It is not a condition inherent in the individual’; Arboleda, E. & Hoy, I., ‘The Convention Refugee definition in the West: Disharmony of Interpretation and Application’, 5 IJRL 66 (1993).

9  Cf. the definition adopted by the Institute of International Law at its 1950 Bath Session: ‘Asylum is the protection which a State grants on its territory or in some other place under the control of its organs to a person who comes to seek it’: 1 Annuaire, (1950), 167, art. 1.

10  Note also the recognition given after the 1973 coup in Chile to UNHCR ‘safe havens’, that is, refuges for foreign refugees granted asylum under the Allende government; see UN doc. A/AC.96/508, 5 (1974). Cited also by the Chilean representative to the UNHCR Executive Committee in 1992: UN doc. A/AC.96/SR.477, para. 51. See Ch. 5, 250–3.

11  See, for example, R. (on the application of ‘B’) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643: actions of consular officials abroad may be subject to ECHR50 (though extraterritoriality not expressly mentioned); Noll, G., ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, 17 IJRL 542 (2005); Cole, C.V., ‘Is There Safe Refuge in Canadian Missions Abroad?’ 9 IJRL 654 (1997).

12  Many States do not accept the institution of diplomatic asylum, or do so only in very limited cases. Despite some support, a Uruguayan proposal to extend the right of asylum in the Universal Declaration of Human Rights to diplomatic asylum in embassies and legations, based on State practice in Latin America, was rejected: UN doc. A/C.3/268, reproduced in UN doc. A/C.3/285/Rev.1 in UNGAOR Part 1 (3rd Session, 1948) ‘Annexes’, 25. The Pakistani representative regarded this concept of extraterritoriality as having ‘dangerous implications’: UNGAOR Part 1 (3rd Session, 1948) ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 337 (Mr Shahi, Pakistan). See also debate in the International Law Commission in 1949: Yearbook of the ILC, paras. 49, 87–8; debate on the draft Declaration on the Right of Asylum in 1966: UN doc. A/6570, para. 11; Moore, Digest, ii, 755ff.; Hackworth, Digest, ii, 623ff.; Whiteman, Digest, vi, 445ff.; McNair, ‘Extradition and Exterritorial Asylum’, 28 BYIL 172 (1951); 7 BDIL, 905–23. In 1974, on an Australian initiative, the General Assembly requested the Secretary-General to prepare and circulate a report on the practice of diplomatic asylum and invited Member States to make known their views: UNGA res. 3321 (XXIX), 14 Dec. 1974. The report (UN doc. A/10139) confirmed the regional nature of the practice; of twenty-five States which made known their views, only seven favoured drawing up an international convention on the matter. Further consideration of the subject was postponed indefinitely: UNGA res. 3497(XXX), 15 Dec. 1975. Cf. Riveles, S., ‘Diplomatic Asylum as a Human Right: The Case of the Durban Six’, 11 HRQ 139 (1989); Noll, ‘Seeking Asylum at Embassies’, above n. 11.

13  ICJ Rep., (1950), 266, at 274. In this and the Haya de la Torre case, ICJ Rep., (1951), 71, the Court was concerned, among others, with interpretation of the 1928 Havana Convention on Asylum, in force between Colombia and Peru, which embodied the right to grant asylum in embassies to political offenders in urgent cases. Colombia’s claim that it was entitled to qualify the offence in question as political and also to determine the urgency of the case was rejected by the Court, as was its further claim that the territorial State was bound to allow the asylee to leave. Nevertheless, the Court agreed that the offence was political, but disagreed on the issue of urgency. The resulting stalemate, in which Columbia was not bound to hand over the fugitive, notwithstanding the improper grant of asylum, and Peru was not bound to allow safe passage, was not covered by the Convention or by any regional custom; the parties were urged to reach a friendly settlement.

14  On which, see above Ch. 4, s.

15  Lauterpacht, H., International Law and Human Rights, (1950), 421; see further below, text to n. 33. As Kimminich succinctly puts it: ‘Das Recht, Asyl zu suchen, bedeutet nichts anderes als das Recht, sich auf die Flucht zu begeben’: Internationale Rechtsstatus des Flüchtlings, 81.

16  France’s suggestion that the United Nations itself should be empowered to secure asylum was also opposed: UN doc. A/C.3/244; UNGAOR Part 1 (3rd Session, 1948), ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 328 (Mr Cassin, France), supported by Bolivia, 329, Mexico, 333 (note that ‘opposite’ should read ‘apposite’); Belgium, 334; Pakistan, 338; opposed by the United Kingdom, 330; The Netherlands, 331; United States, 334; Philippines, 335; Lebanon, 336; Australia, 338; USSR, 342; some support in principle: India, 335; Brazil, 340. See also the Uruguayan proposal and Pakistan comment, above n. 12.

17  UN doc. A/C.3/285/Rev.1, in UNGAOR Part 1 (3rd Session, 1948), ‘Annexes’, 24 (emphasis added).

18  UN doc. A/C.3/253, reproduced in UN doc. A/C.3/285/Rev.1, UNGAOR Part 1 (3rd Session, 1948), ‘Annexes’, 24.

19  UNGAOR Part 1 (3rd Session, 1948), ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 330–1 (Mrs Corbet, UK). Interestingly, while the United Kingdom was very supportive of the Universal Declaration, it was keen to avoid language that might be interpreted as imposing obligations on States. It proposed ‘to make minor changes in the articles concerning the right to asylum, the right of equal pay, and the right to work. Article 21 concerning the right to work they now feel may be interpreted to mean that Governments are required to find work for everyone’: Letter from R. A. D. Ford to Escott Reid, (13 Sept. 1948), NAC RG 25, vol. 3699, File 5475-DG-2-40, cited in Schabas, W. A., ‘Canada and the Adoption of the Universal Declaration of Human Rights,’ 43 McGill Law Journal 403, 417 (1998).

20  UNGAOR Part 1 (3rd Session, 1948), ‘Summary Records of Meetings’, 122nd Meeting (4 November 1948), 345 (Mr Saint-Lot, Haiti), 345 (Miss Zuloaga, Venezuela), 346 (Mr Contoumas, Greece).

21  UNGAOR Part 1 (3rd Session, 1948) ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 330 (UK). Similarly, the Saudi Arabian delegate (Mr Baroody) stated that while every persecuted person should be able to enjoy the right of asylum, ‘[t]hat did not mean… that everyone had the right to obtain asylum in the country of his choice… Such a principle would be a flagrant violation of the sovereignty of the State concerned’: 331. See also the remarks of the Venezuelan delegate (Mr Plaza), 332; Indian delegate (Mr Habib), 335.

22  UNGAOR Part 1 (3rd Session, 1948) ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 330 (Mrs Corbet, UK).

23  Ibid., 335 (Mr Habib, India); 340 (Mrs Corbet, UK); see also support by the Australian delegation, 338.

24  Ibid., 331 (Mrs Corbet, UK).

25  Ibid., 338 (Mr Watt, Australia).

26  UNGAOR Part 1 (3rd Session, 1948) ‘Summary Records of Meetings’, 122nd Meeting (4 Nov. 1948), 342 (Mr Cassin, France).

27  Ibid., 347 (Mr Cassin, France).

28  Ibid., 343 (Mr Pavlov, USSR).

29  UNGAOR Part 1 (3rd Session, 1948), ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 336 (Mr Azkoul, Lebanon).

30  Ibid., 335 (Mr Azkoul, Lebanon).

31  Ibid., 340 (Mr de Athayde, Brazil).

32  Ibid., 337 (Mr Shahi, Pakistan).

33  Lauterpacht, above, n. 15, 422. Lauterpacht drafted his own International Bill of Rights, which he submitted to the Brussels Conference of the International Law Association in 1948. In a revised draft, he proposed in art. 10 that: ‘Within the limits of public security and economic capacity of the State, there shall be full and effective recognition of the right of asylum for political offenders and for fugitives from persecution.’ Ibid., 345–6. See also Lauterpacht, H., ‘The Universal Declaration of Human Rights’, 25 BYIL 354 (1948).

34  UN doc. E/600, para. 48, as cited in Weis, P., ‘Human Rights and Refugees’, 1 Israel Yearbook on Human Rights 35, 38 (1971).

35  It was said to be ‘the complement of the right of peoples to self-determination and of the right to life; and its guarantee against extradition in certain instances was a proper concomitant of the right against arbitrary expulsion’: UN Commission on Human Rights, Report of the 8th Session (1952), UN doc. E/2256, para. 202.

36  UN doc. E/CN.4/L.190/Rev.2 (2 Jun. 1952).

37  UN doc. E/CN.4/L.184 (28 May 1952).

38  ‘The High Contracting Parties shall strive to take steps, individually and in concert with the other High Contracting Parties and with the United Nations, to ensure the effective granting of this right.’: UN doc. E/CN.4/L.191 (2 Jun. 1952).

39  UN Commission on Human Rights, Report of the 8th Session (1952), UN doc. E/2256, para. 203.

40  Ibid. France’s amendment was rejected by 9 votes to 3 with 6 abstentions; the USSR’s proposal was rejected by 10 votes to 5 with 3 abstentions; and the joint proposal was rejected by 10 votes to 4 with 4 abstentions: ibid., para. 204. This was despite interventions by the UN High Commissioner for Refugees and UNHCR’s Chief Legal Adviser: Holborn, L.W., Refugees: A Problem of Our Time: The Work of the United Nations High Commissioner for Refugees, 1951–1972, vol. 1, (1975), 228.

41  UNGA res. 428(V), 14 Dec. 1950; see also UNGA res. 430(V) of the same date, urgently appealing to States to assist the IRO in its resettlement efforts.

42  Ad Hoc Committee on Statelessness and Related Problems, Memorandum by the Secretary-General: UN doc. E/AC.32/2, (3 Jan. 1950), 22, preliminary draft convention, art. 3: ‘1. In pursuance of Article 14 of the Universal Declaration…, the High Contracting Parties shall give favourable consideration to the position of refugees seeking asylum from persecution or the threat of persecution…2. [They] shall to the fullest possible extent relieve the burden assumed by initial reception countries which have afforded asylum… They shall do so, inter alia, by agreeing to receive a certain number of refugees in their territory.’ The Committee decided that the convention should not deal with the right of asylum; see comments by the US delegate, Louis Henkin, in the first session of the Ad hoc Committee: UN doc. E/AC.32/SR.20 (10 Feb. 1950), paras. 15, 44, 54–6; also UN doc. E/AC.32/SR.21, paras. 12, 16, 26. See Weis, P., ‘Legal Aspects of the Convention of 28 July 1951 relating to the Status of Refugees’, 30 BYIL 478, 481 (1953). Generally for the preparatory works, see Takkenberg, A. & Tahbaz, C., The Collected travaux préparatoires of the 1951 Convention relating to the Status of Refugees, 3 vols., (1988); UNHCR, RefWorld, DVD-Rom, (15th edn., 2006).

43  For discussion in the 1951 Conference on asylum as a right and not a duty of the State, see Colombia: A/CONF.2/SR.13, 12; United Kingdom, ibid., 14. Cf. France, ‘the right of asylum was implicit in the Convention, even if it was not explicitly proclaimed therein, for the very existence of refugees depended on it’: ibid., 13. ECOSOC’s instructions to the Ad Hoc Committee on Statelessness and Related Problems were to draft a binding legal instrument implementing art. 14 and 15 UDHR48: Ad Hoc Committee on Statelessness and Related Problems, First Session, ‘Summary Record of the 1st Meeting’, (New York, 16 Jan. 1950), UN doc E/AC.32/SR.1 (23 Jan. 1950), para. 4 (Secretariat).

44  ECOSOC, Official Records, 22nd Sess., Supp., paras. 109–12. Other States objected, citing issues of sovereignty and domestic jurisdiction; see UN doc. E/CN.4/781, 3 (Czechoslovakia); ibid., 10–11 (United Kingdom).

45  UNGA res. 1400(XIV), 21 Sept. 1959. The International Law Commission (ILC) had been tentatively involved with the issue some ten years previously, in debate on an article proposed for inclusion in a draft declaration on the rights and duties of States: Yearbook of the ILC, (1949), 125, paras. 49ff. The proposed article, providing that ‘[e]very State has the right to accord asylum to persons of any nationality who request it in consequence of persecutions for offences which the State according asylum deems to have a political character’, was ultimately not adopted, because it was considered too complex an issue to be dealt with in a single article: UN doc. A/CN.4/SR.20 (1949). During debate, it was said that ‘[t]he duty corresponding to the right of asylum was not that of granting asylum whenever it was requested, but that of respect for the asylum granted on the part of the State of which the refugee was a national. That State should in no case consider the granting of asylum as an unfriendly act against it.’: International Law Commission, First Session, ‘Summary Record of the 16th Meeting’ (5 May 1949) UN doc. A/CN.4/SR.16, 16 (Mr Yepes).

46  UN doc. A/CN.4/245. In 1972, the International Law Association adopted texts for draft conventions on diplomatic and territorial asylum: ILA, Report of the 55th Session, (1972), 109–207.

47  UNGA res. 2312(XXII), 14 Dec. 1967. For text, see below, Annexe 1, No. 6. For a detailed account of the background, see Weis, P., ‘The United Nations Declaration on Territorial Asylum’, 7 Can. YIL 92 (1969). The 1967 Protocol relating to the Status of Refugees was limited to updating the refugee definition and does not deal with the question of asylum.

48  Art. 1(1), (2).

49  See UN docs. A/C.6/SR. 983-9; A/6912, Report of the Sixth Committee, paras. 64–5; also the Preamble to the 1967 Declaration, adopted by UNGA res. 2312(XXII), 14 Dec. 1967.

50  UN doc. A/8712 appx., annexe 1. This and other drafts are collected in Grahl-Madsen, A., Territorial Asylum, (1980), annexes KK and following.

51  UN docs. A/C.3/SR.1956 and 1957, paras. 25, 32.

52  UN doc. A/9612/Add.3, annexe (1974). Of ninety-one States which made known their views, seventy-six favoured elaboration of a convention on territorial asylum. See also UN doc. A/C.3/SR.2098-2101; and SR.2103, paras. 44–60. (1974).

53  UNGA res. 3272(XXIX), 9 Jan. 1975.

54  UN doc. A/10177 and Corr. 1 (1975); Grahl-Madsen, Territorial Asylum, above n. 50, annexe RR; also UN doc. A/C.3/SR.2161-4.

55  Cf. the draft prepared by the International Law Association at its 55th Conference in 1972, under which States would ‘undertake to grant refuge in their territories to all those who are seeking asylum…’, save where danger to the security of the country or to the safety and welfare of the community was apprehended (art. 1(b)). Art. 3, however, proposed that ‘A grant of asylum does not imply any right of permanent immigration’. ILA, Report of 55th Session, (1972); text also in Grahl-Madsen, Territorial Asylum, annexe LL.

56  Art. 4 did provide for provisional admission pending consideration of a request for asylum, but meeting the Qualifications still gave no entitlement to the grant of asylum.

57  UNGA res. 3456(XXX), 9 Dec. 1975.

58  Text in Grahl-Madsen, Territorial Asylum, annexe TT.

59  ‘Towards an Asylum Convention’, Report of the Nansen Symposium (1977); text of draft convention proposed by Grahl-Madsen and Melander also in Grahl-Madsen, Territorial Asylum, annexe UU.

60  See generally, Grahl-Madsen, Territorial Asylum; Weis, P., ‘The Draft Convention on Territorial Asylum’, 50 BYIL 176 (1979); Weis, ‘Human Rights and Refugees’, above n. 34.

61  For full text of the articles considered by the Committee of the Whole and by the Drafting Committee, see ‘Report of the United Nations Conference on Territorial Asylum’, UN doc. A/CONF.78/12, (21 Apr. 1977).

62  See Report of the Conference, above note, para. 25; also Report of the UNHCR to ECOSOC: UN doc. E/5987, paras. 10–16 (June 1977).

63  UN doc. A/C.3732/SR.49, paras. 16–19 (Nov. 1977).

64  Generally see UNHCR, The State of the World’s Refugees, (1993), 26–9, 117–20; ‘Focus on the Comprehensive Plan of Action’, 5 IJRL 507 (1993).

65  The various measures adopted since the entry into force of the Treaty of Amsterdam and the Tampere Conclusions in 1999 are discussed throughout this work.

66  Vienna Declaration and Programme of Action, UN World Conference on Human Rights (1993) UN doc. A/CONF.157/23 (12 Jul. 1993), para. 23.

67  Sub-Commission on Human Rights Resolution 2000/20 on ‘The Right to Seek and Enjoy Asylum’, (18 Aug. 2000).

68  Sub-Commission on Human Rights, Resolution 2001/16 on ‘International Protection for Refugees and Displaced Persons’, (16 Aug. 2001); Sub-Commission on Human Rights, Resolution 2002/23 on ‘International Protection for Refugees’, (14 Aug. 2002).

69  Executive Committee Conclusion No. 52 (1988), No. 71 (1993), No. 75 (1994), No. 77 (1995), No. 82 (1997) No. 85 (1998), No. 94 (2002), No. 97 (2003), No. 101 (2004), No. 103 (2005).

70  See Executive Committee Conclusion No. 82 on Safeguarding Asylum (1997), para. (d), stressing the importance of the principle of non-refoulement, irrespective of whether persons have been formally granted refugee status; access to fair and effective procedures for determining status and protection needs; the need to admit refugees to State territories; the need to grant UNHCR rapid, unimpeded, and safe access to persons of concern; scrupulous application of the exclusion clauses; the duty to treat refugees and asylum seekers in accordance with international human rights and refugee law standards; States’ responsibility to ensure the civil nature of asylum by separating refugees from armed elements; and the obligation of refugees and asylum seekers to abide by the laws of host States. The 2001 Declaration of States Parties calls on States to ‘take measures to strengthen asylum and render protection more effective’, and to ‘continue their efforts aimed at ensuring the integrity of the asylum institution’: Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (13 Dec. 2001), UN doc. HCR/MMSP/2001/09 (16 Jan. 2002), paras. 6 and 7 respectively; text below, Annexe 1, No. 10.

71  See further Ch. 6.

72  Ullah v. Secretary of State for the Home Dept [2004] 2 AC 323, [2004] UKHL 26, paras. 24–25 (Lord Bingham), 49–50 (Lord Steyn), 67 (Lord Carswell). See also Secretary of State for the Home Department v. Kacaj [2002] Imm AR 213, para. 39; Drozd and Janousek v. France and Spain (1992) 14 EHRR 745, 795 (Judge Matscher).

73  In relation to art. 8, see, for example, Liddy, J., ‘The Concept of Family Life under the ECHR’, [1998] European HR L. Rev. 15; Kilkelly, U., The Child and the European Convention on Human Rights, (1999), Ch. 7; Lambert, H., ‘The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion’, 11 IJRL 427 (1999).

74  See Becker v. Denmark Application No. 7011/75, (3 Oct.1975), 4 D & R 215, in which the European Commission took the view that it was not within the government’s power to give guarantees as to what would happen to children whom it proposed to repatriate to South Vietnam, and that it was neither reasonable nor feasible to require guarantees. In TI v. United Kingdom [2000] INLR 211, the Court considered it ‘irrelevant’ that any permission for the applicant to remain in the UK would only be for three months and would be subject to review. Lambert has characterized the European Court’s approach as one of ‘redress’, concerned with State compliance with judgments rather than their impact on individual claimants: Lambert, H. ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’, 24 RSQ 39, 50 (2005). But see Noll, ‘Seeking Asylum at Embassies’, above n. 11, on the limited role of ECHR50 in providing a right to entry where visa applications are made at diplomatic missions abroad.

75  ETS No. 24, art. 3(2).

76  Council of Europe Parliamentary Assembly Recommendation 434 (1965).

77  Res. (67) 14 of 29 June 1967 on Asylum to Persons in Danger of Persecution, Preamble and para. 1. See also the earlier Recommendations 234 of 22 January 1960 and 293 of 26 September 1961 of the Consultative Assembly of the Council of Europe, proposing that the Committee of Experts be instructed to include an article on asylum in a protocol to ECHR50; this was rejected by the Committee of Experts, which favoured either a separate convention or a resolution. See also Parliamentary Assembly of the Council of Europe, Recommendation 1236 on the Right of Asylum (12 April 1994), para. 6. The principles of the 1967 resolution were reaffirmed in the Declaration on Territorial Asylum adopted by the Committee on Ministers on 18 Nov. 1977. For texts, see the Online Resource Centre: <http://www.oup.com/uk/refugeelaw>.

78  The French, Spanish, and Italian versions refer to a right of asylum (‘droit d’asile’; ‘derecho de asils’ ‘diritto di asilo’). Thank you to María-Teresa Gil-Bazo for drawing this to our attention.

79  See art. 51(2): ‘This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.’ Art. 52(3) provides that the Charter respects ECHR50, its Protocols, and the case law of the European Court of Human Rights.

80  Noll, ‘Seeking Asylum at Embassies’, above, n. 11, 547.

81  In the European Constitution, the term ‘asylum’ seems to imply Convention status, in contrast to subsidiary protection status and temporary protection status: ‘The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement’ (art. III-266(1)), and ‘a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection’ (art. III-266(2)(b)). Note also the combined effects of arts. 13, 21, and 24(1) of the EU Qualification Directive; below, Ch. 9, s. 3.1.

82  Vedsted-Hansen, J., ‘Non-Admission Policies and the Right to Protection: Refugees’ Choice versus States’ Exclusion?’, in Nicholson, F. & Twomey, P., eds., Refugee Rights and Realities: Evolving International Concepts and Regimes, (1999) 274–5.

83  Arts. 1–4; see below, Annexe 2, No. 3.

84  That is, asylum granted ‘in legations, war vessels, and military camps or aircraft, to persons being sought for political offenses’: art. 1, 1954 Caracas Convention on Diplomatic Asylum; see below, Annexe 2, No. 4.

85  Ibid., arts. 2, 4.

86  Ibid., art. 17.

87  Art. II(4) OAU69; see below, Annexe 2, No. 1. The OAU has been succeeded by the African Union (AU).

88  UNGA resolutions simply affirm the right to seek asylum, and do not explain the meaning of the concept: UNGA res. 50/152 (21 Dec. 1995) para. 4; 51/75 (12 Dec. 1996), para. 3; 52/103 (9 Feb. 1998), para. 5; 53/125 (12 Feb. 1999), para. 5; 54/146 (17 Dec. 1999), para. 6; 55/74 (4 Dec. 2000), para. 6.

89  See generally, Vernant, J., The Refugee in the Post-War World, (1953); Holborn, L., The International Refugee Organization, (1956).

90  See, for example, UNGA res. 430(V), 14 Dec. 1950, urgently appealing to all States to assist the IRO with resettlement; UNGA res. 538(VI), 2 Feb. 1952, appealing specially to States interested in migration.

91  UNGA res. 1166(XII), 26 Nov. 1957, para. 2, reaffirming the basic approach set out in para. 1 of the UNHCR Statute; also UNGA res. 1285(XIII), 5 Dec. 1958, on special efforts to be made in the context of World Refugee Year.

92  UNGA res. 832(IX), 21 Oct. 1954, ‘Considering that, while the ultimate responsibility for…refugees… falls in fact upon the countries of residence, certain of these countries have to face particularly heavy burdens as a result of their geographical situation, and some complementary aid has been shown to be necessary… ’

93  UNGA res. 1167(XII), 26 Nov. 1957, recognizing the heavy burden placed on the government of Hong Kong by the massive influx of Chinese refugees, and noting that the problem is such ‘as to be of concern to the international community’.

94  See, for example, the UK pre-clearance procedures in R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport (UNHCR Intervening) [2005] 2 AC 1, [2004] UKHL 55 (hereafter ‘Roma Rights case’).

95  On good faith in international law, see above, Ch. 5. In relation to good faith and the right to seek asylum: Lauterpacht, H., International Law and Human Rights (1950) 346.

96  See Roma Rights case, above, n. 94; although see discussion below, with respect to the protection afforded by ECHR50 and CRC89: Noll, ‘Seeking Asylum at Embassies’, above n. 11.

97  ‘Concluding Observations of the Human Rights Committee: Austria’, UN doc. CCPR/C/79/Add.103, (19 Nov. 1998), para. 11. The Human Rights Committee has also requested States to ‘include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country’: General Comment No. 27 (1999), para. 10.

98  Lichtensztejn v. Uruguay, Comm. No. 77/1980, UN doc. A/38/40 (31 Mar. 1983), para. 8.3; Montero v. Uruguay, Comm. No. 106/1981, UN doc. A/38/40 (31 Mar. 1983) 186 at para. 9.4; Nuñez v. Uruguay, Comm No. 108/1981, UN doc. A/38/40 (22 July 1983), paras. 9.2 and 9.3. See above, Ch. 5, s. 3.3.1, on extraterritoriality; Hathaway, J. C., The Rights of Refugees under International Law (2005), 314 (hereafter, Rights of Refugees, (2005)).

99  Roma Rights case, above n. 44, para. 28.

100  See discussion in Schachter, O., International Law in Theory and Practice, (1991), 336–41.

101  Noll, G., Negotiating Asylum (2000), 357–62 argues that neither the UDHR48 generally, nor art. 14 specifically, amount to binding international law.

102  Executive Committee Standing Committee (18th Meeting), ‘Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach’, UN doc. EC/50/SC/CRP.17, (9 Jun. 2000), para. 10. On interception at sea, see Ch. 5, s. 4.2.

103  Ibid., para. 13; see further below, s. 4.3.2.

104  Executive Committee Conclusion No. 97 (2003).

105  For example, the 2003 Pre-ExCom Consultations with NGOs revealed interception practices in Australia, Canada, the United States and the European Union: Report on Pre-ExCom Consultations with Non-Governmental Organisations (Geneva, 24–26 Sep. 2003), Annex IX, (2 Oct. 2003).

106  Since 1999, the European Union has spent millions of Euros on increasing and strengthening border patrols and maritime surveillance, including the use of satellites to detect people crossing borders, and biometric and fingerprinting equipment to track their movement once they arrive in the European Union: European Council on Refugees and Exiles (ECRE), ‘Broken Promises—Forgotten Principles: An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999—Brussels 2004’ (June 2004), 15. See Council Regulation (EC) No. 2725/2000 of 11 December 2000, concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, [2000] O.J. L316/1; Council Regulation (EC) No. 407/2002 of 28 February. 2002 laying down Certain Rules to Implement Regulation (EC) No. 2725/2000 concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, [2002] O.J. L62/1.

107  Türk, V., ‘Forced Migration and Security’, 15 IJRL 113, 115, (2003). Cf. references to asylum in the following Security Council resolutions on terrorism, adopted after 11 Sept. 2001: SC Res. 1373, 28 Sept. 2001; SC Res. 1624, 14 Sept. 2005. See also, however, Executive Committee Conclusion No. 94 (2002), on the civilian and humanitarian character of asylum.

108  Executive Committee Standing Committee (18th Meeting), ‘Interception of Asylum-Seekers and Refugees’ above, n. 102, para. 20.

109  Sub-Commission on the Promotion and Protection of Human Rights Res. 2000/20, ‘The Right to Seek and Enjoy Asylum’, preambular para. 11.

110  R. v. Secretary of State for the Home Department, ex p. Adan [2001] 2 AC 477; TI v. UK [2000] INLR 211.

111  Report on Pre-ExCom Consultations, above n. 105, Annex IX, (2 Oct. 2003).

112  Ibid. NGOs called for UNHCR to elaborate Guidelines on Safeguards for Interception Measures, as stated in the Agenda for Protection (Goal 2, Objective 1). See further Ch. 5, ss. 3.3.1, 4.2.

113  Brouwer, A. & Kumin, J., ‘Interception and Asylum: When Migration Control and Human Rights Collide’, 21 Refuge 6, 18 (2003).

114  Sianni, A., ‘Interception Practices in Europe and Their Implications’, 21 Refuge 25, 26 (2003). See, for example, Council Regulation (EC) No. 539/2001 of 15 March 2001, Listing the Third Countries Whose Nationals Must Be in Possession of Visas When Crossing the External Borders and Those Whose Nationals are Exempt from that Requirements [2001] O. J. L81/1; also, No. 453/2003 (6 Mar. 2003), [2003] O. J. L69/10. A large number of refugee-producing countries are included. Australia requires all foreign nationals to have visas: Migration Act 1958 (Cth), s. 42.

115  Although note comments by the House of Lords in Januzi v. Secretary of State for the Home Department [2006] UKHL 5; see also above, Ch. 5, s. 5.6.1

116  Brouwer & Kumin, ‘Interception and Asylum’, above n. 113, 8.

117  For example, during the exodus of refugees from Bosnia-Herzegovina in 1992, Finland and the Benelux States introduced visa requirements for Bosnians: Argent, T., ‘Croatia’s Crucible: Providing Asylum for Refugees from Bosnia and Hercegovina’, (United States Committee for Refugees, Issues Paper, Oct. 1992) 17; see also Amnesty International, ‘Recommended Actions relating to Bosnia-Hercegovina: Gross Abuses of Basic Human Rights’ (AI Index EUR 48/26/92) 4–5. Brouwer & Kumin cite Citizenship and Immigration Canada statistics pertaining to the introduction of visas for Hungarians and Zimbabweans in Dec. 2001, which had a dramatic effect on the reduction of asylum claims. In the case of Hungarians, numbers fell from 4,163 in 2001 to almost zero in 2002: ‘Interception and Asylum’, above n. 113, 6, note 16.

118  See, for example, Morrison, J., & Crosland, B., ‘The trafficking and Smuggling of Refugees: The End Game in European Asylum Policy’, UNHCR, New Issues in Refugee Research, Working Paper No. 39, (2001), 28.

119  Coleman, N., ‘Non-Refoulement Revised: Renewed Review of the Status of the Principle of Non-Refoulement as Customary International Law’, 5 EJML 23, 30 (2003).

120  Council of Europe and UNHCR, ‘Proceedings: Roundtable Process on Carriers’ Liabilty: Second Expert Meeting on Carriers’ Liability, Topic B: Respect of the Humanitarian Dimension’, (Brussels, 24 Jun. 2002) 3, cited in Brouwer & Kumin, above, n. 113, fn 17.

121  For discussion of protected entry procedures, see below, s.4.3.1. Resettlement countries may issue visas for persons already recognized as refugees or others in need of international protection: see, for example, the variety of offshore humanitarian visas issued by Australia: Migration Regulations 1994 (Cth), Sch. 1, 1402.

122  Council Regulations 539/2001 and above n.114; Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (5 Dec. 2002).

123  Although the impact of such measures can be offset by resettlement programmes (even from countries of origin), in practice States tend to give priority to limiting the opportunities for spontaneous movement.

124  ECRE, ‘The ECRE Tampere Dossier’, (Jun. 2000), 12.

125  ECRE, ‘Broken Promises’, above, n. *, 17.

126  For example, Austria, Denmark, France, the Netherlands, Spain, and the United Kingdom in 2002, based on the legacy of protective passports during the 1940s: Noll, G., Fagerlund, J. & Liebaut, F., ‘Study on the Feasibility of Processing Asylum Claims outside the EU against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure’, (2003).

127  Communication from the Commission to the Council and the European Parliament on the Managed Entry in the EU of Persons in Need of International Protection and the Enhancement of the Protection Capacity of the Regions of Origin: ‘Improving Access to Durable Solutions’, COM(2004) 410 final, (4 Jun. 2004), para. 35. ECRE supported this approach: ‘Comments of the European Council on Refugees and Exiles on the Communication from the Commission to the Council and the European Parliament, on the Managed Entry in the EU of Persons in Need of International Protection and the Enhancement of the Protection Capacity of the Regions of Origin: “Improving Access to Durable Solutions”, COM(2004) 410 final’, (Sept. 2004), 5.

128  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/989 (7 Jul. 2004), para. 31. See also UNHCR, ‘Convention Plus Issues Paper’ on ‘Addressing Irregular Secondary Movements of Refugees and Asylum-Seekers’, FORUM/CG/SM/03 (11 Mar. 2004), para. 16. In 2006, Human Rights Watch encouraged EU Member States to ‘[i]mmediately implement “protected entry procedures” through embassies in Tripoli and resettle refugees [from Libya] identified by UNHCR as being in need of resettlement’, noting that this should be done ‘only as a supplement’ rather than as an alternative to allowing asylum seekers arriving spontaneously access to EU territory and asylum procedures: Stemming the Flow: Abuses against Migrants, Asylum Seekers and Refugees, (Sept. 2006) HRW Index No. E1805, Section XI.

129  UNHCR, ‘Observations on the European Commission Communication “On the Managed Entry in the EU of Persons in Need of International Protection and Enhancement of the Protection Capacity of the Regions of Origin: Improving Access to Durable Solutions” (COM(2004) 410 final, 4 June 2004)’, (30 Aug. 2004), para. 11.

130  See House of Lords European Union Committee, Handling EU Asylum Claims: New Approaches Examined (HL Paper 74, 11th Report of Session 2003–04), para. 89. This process can be differentiated from proposals to establish transit processing centres (by the United Kingdom, Denmark, the Netherlands, and Germany), which, according to Noll, ‘rest on an altogether different paradigm, and raise different legal issues.’: Noll ‘Seeking Asylum at Embassies’, above, n. 11, 545; also, Noll, G., ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, 5 EJML 303 (2003).

131  Council Regulation (EC) No 377/2004 of 19 February 2004 on the Creation of an Immigration Liaison Officers Network [2004] O.J. L 64/1.

132  Brouwer & Kumin, above n. 113, 10, referring to Citizenship and Immigration Canada, ‘Fact Sheet: 11 Sept. 11, 2001, A Year Later’.

133  See, for example, Council Directive 2001/51/EC of 28 June 2001 supplementing the Provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 [2001] O.J. L 187/45.

134  Such schemes have been described as an arbitrary form of burden-sharing which cannot be properly monitored by UNHCR and others due to the circumstances and locations in which interceptions occur: UNHCR Global Consultations on International Protection, ‘NGO Background Paper on the Refugee and Migration Interface’, (28–29 Jun. 2001), in 22 RSQ 373, 380 (2003). The IOM, which supports and is active in interception, does not have a protection mandate and is not primarily concerned with the protection entitlements of intercepted persons. For evaluation of a March 2003 proposal by Spain to require carriers to report passenger data to Member States’ immigration authorities before travel, and information about passengers who had not used their return tickets, see House of Lords European Union Committee, Fighting Illegal Immigration: Should Carriers Carry the Burden? (5th Report of Session 2003–04, HL Paper 29, 2004).

135  Executive Committee Standing Committee (18th Meeting), ‘Interception of Asylum-Seekers and Refugees’, above n. 102, paras. 17–18. See also UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/898, (3 Jul. 1998), para. 16.

136  The EU waives fines where an undocumented passenger subsequently applies for asylum: Council Directive 2001/51/EC, above n. 133, Preamble. However, it does not ensure non-refoulement or provide access to remedies for asylum seekers who have been refused permission to travel at their point of departure or are forced to return to a country where they may face violations of their rights: ECRE, ‘Broken Promises’, above n. 106, 16.

137  Roma Rights case, [2005] 2 AC 1, para. 4.

138  Ibid., para. 18 (Lord Bingham); para. 48 (Lord Hope); para. 72 (Baroness Hale); para. 106 (Lord Carswell).

139  Vienna Convention on the Law of Treaties, art. 26. For UNHCR’s Written Submissions, see 17 IJRL 427 (2005).

140  Roma Rights case [2005] 2 AC 1, para. 19; see also paras. 63–4 (Lord Hope).

141  Ibid., para. 26 (Lord Bingham); see also para. 43 (Lord Steyn).

142  Ibid., para. 20.

143  Ibid., para. 26. For background discussion, see paras. 22ff.

144  See further above, Ch. 5.

145  Interestingly, a representative of the Air Transport Association of Canada described the threat of carrier sanctions, effectively requiring airline personnel to pre-screen passengers, as transporting the border to the embarkation point: Canadian Council for Refugees, ‘Interdiction and Refugee Protection: Bridging the Gap’, (International Workshop, Ottawa, 29 May 2003), 16. Others have described visa regimes and carrier sanctions as having ‘pushed back’ the border to countries of origin: see House of Lords Select Committee on the European Union, Proposals for a European Border Guard (Session 2002–03, 29th Report), para. 13.

146  Roma Rights case [2005] 2 AC 1, para. 21, referring to Sale v. Haitian Centers Council 509 US 155 (1993).

147  Roma Rights case [2005] 2 AC 1, paras. 104–05; paras. 10, 31 (Lord Bingham); paras. 38, 47 (Lord Steyn); para. 48 (Lord Hope); paras. 106, 114 (Lord Carswell).

148  Ibid., para. 34 (Lord Steyn); see also paras. 85, 92, 93 (Baroness Hale).

149  Ibid., para. 98 (Baroness Hale); paras. 38, 47 (Lord Steyn); see also UNHCR’s submissions on the prohibition of discrimination on the grounds of race: ‘Written Case’, 17 IJRL 427, 440–45 (2005).

150  The United States applies different standards of screening to boats intercepted in the Carribean, depending on the nationality of those on board. For details of the different procedures, see Frelick, B., ‘The United States: Maritime Interdiction’ in Canadian Council for Refugees ‘Interdiction and Refugee Protection: Bridging the Gap’, above n. 145, 4–5; van Selm, J. & Cooper, B., The New ‘Boat People’: Ensuring Safety and Determining Status, (2005). Differential treatment raises serious questions about access to protection and solutions (see Brouwer & Kumin, above, n. 113, 8), and may contravene the non-discrimination principle under international human rights treaties and customary international law.

151  Goodwin-Gill, G. S., ‘State Responsibility and the “Good Faith” Obligation in International Law’, in Fitzmaurice, M. & Sarooshi, D., Issues of State Responsibility before International Judicial Institutions, (2004), 75, 96–100.

152  Roma Rights case, above, n. 94, para. 28.

153  Ibid., above, n. 94, para. 28.

154  See discussion of ‘good faith’, below, at s. 5.4.

155  Art. 13(1) UDHR48; art. 12 ICCPR66; art. 2 ECHR50 Protocol 4; art. 22 ACHR69; art. 12(2) ACHPR81; art. 21 ArabCHR. The right also appears in other contexts: see, for example, art. 5 ICERD65; art. 2, 1973 Convention on the Suppression and Punishment of the Crime of Apartheid; art. 4(1), 1977 European Convention on the Status of Migrant Workers; art. 10(2) CRC89; art. 5(2), 1985 UN Declaration on the Rights of Non-Nationals; art. 8, 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. See also Declaration on the Right to Leave and the Right to Return, adopted by the Uppsala Colloquium, (1972); Strasbourg Declaration on the Right to Leave and Return, adopted by the Meeting of Experts in Strasbourg, (1986).

156  Botswana has made a reservation to art. 12(3) to ‘the extent that the provisions are compatible with Section 14 of the Constitution of the Republic of Botswana relating to the imposition of restrictions reasonably required in certain exceptional instances’. Denmark, Ireland, and the Netherlands have formally objected to this, arguing that it raises doubts about Botswana’s commitment to fulfil its commitments under the ICCPR and is incompatible with the treaty’s object and purpose.

157  UN doc. A/2929 (1955). For further examples of restrictions, see Human Rights Committee, ‘Initial Report: Tajikistan’, UN doc. CCPR/C/TJK/2001/4, (11 Apr. 2005), para. 159; ‘Third Periodic Report: Netherlands’, UN doc. CCPR/C/NET/99/3, (25 Aug. 2000), paras. 84, 609; ‘Third Periodic Report: Netherlands (Addendum)’, UN doc. CCPR/C/NET/99/3/Add.1, (21 May 2001), para. 48; ‘Fourth Periodic Report: Yugoslavia’, UN doc. CCPR/C/YUG/99/4, (28 Jun. 1999), para. 220 (where the right to leave may be denied to prevent the spread of contagious diseases, pursuant to art. 30 of the Yugoslavian Constitution); ‘Initial Report: Israel (Addendum), UN doc. CCPR/C/81/Add.13, (2 Jun. 1998), para. 378.

158  Peltonen v. Finland, Application No. 19583/92 (20 Feb. 1995) (inadmissible); KS v. Finland, Application No. 21228/93 (24 May 1995) (inadmissible); Napijalo v. Croatia, Application No. 66485/01 (13 Nov. 2003), para. 68. Hannum, H., The Right to Leave and Return in International Law and Practice, (1987).

159  Human Rights Committee, General Comment No. 27 (1999), paras. 14, 16, 17. See further Boutkevitch, V., ‘Working Paper on the Right to Freedom of Movement and Related Issues’, UN doc. E/CN.4/Sub.2/1997/22, (19 July. 1997), 20.

160  Hofmann, R., Die Ausreisefreiheit nach Völkerrecht und staatlichem Recht, (1988), 315, as referred to in Hailbronner, K., ‘Comments On: The Right to Leave, the Right to Return and the Question of a Right to Remain’, in Gowlland-Debbas, V., ed., The Problem of Refugees in the Light of Contemporary International Law Issues, (1996), 112. See also, CSCE, ‘Document of the Copenhagen Meeting of the Second Conference on the Human Dimension’, (1990), s. 9.5: restrictions on the right to leave ‘will have the character of very rare exceptions’. Text in Brownlie, I. & Goodwin-Gill, G. S., Basic Documents on Human Rights, (5th edn., 2006), 849.

161  Chétail, V., ‘Freedom of Movement and Transnational Migrations: A Human Rights Perspective’, in Aleinikoff, T. A. & Chétail, V., eds., Migration and International Legal Norms, (2003), 55.

162  Human Rights Committee, General Comment No. 27, para. 20. In the view of the Committee, art. 12 ICCPR66 ‘permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence’. The right to return to one’s State is expressly limited to nationals in ECHR50, ACHR69, and Arab CHR 2004. Elsewhere, it is generally argued that the right extends to nationals and permanent residents: see Chétail, above n. 161 for additional references.

163  It depends, of course, on how one chooses to characterize the operation of the principle. Generally, States will allow asylum seekers to enter their territory in fact while their protection needs are assessed, even though they may not be admitted as a matter of law. It is the principle of non-refoulement that ultimately means that those with a protection need cannot be removed, and so in a circuitous sense, it is this principle that secures ‘entry’. Austria amended its Aliens Act in 2002 to provide that refusal of entry, expulsion, or deportation are unlawful if they would lead to a violation of art. 2 or 3 ECHR50 or of Protocol 6. Edwards argues that the right to leave any country and the right to seek asylum ‘are two sides of the same coin in the refugee context’, and that ‘it would make a nonsense of the 1951 Convention’ if it were not intended to permit an asylum seeker to enter a State ‘at least for the purposes of refugee status determination, especially where an individual has reached a country’s territory, such as its territorial seas or a waiting zone in an international airport’: Edwards, A., ‘Human Rights, Refugees, and the Right “to Enjoy” Asylum’, 17 IJRL 293, 302 (2005).

164  Roma Rights case, [2005] 2 AC 1, para. 26 (Lord Bingham) (emphasis added).

165  To paraphrase a former ILC Rapporteur on State Responsibility, a ‘primary’ rule of international law forbids the ‘abusive’ exercise of rights of control over the movement of persons, which rights will be violated if certain limits are exceeded in the course of their exercise, or if they are exercised with the (sole) intention of harming others. Cf. Ago, R., Second Report on State Responsibility, UN doc. A/CN.4/233: Yearbook of the ILC, 1970-II, 191, 193.

166  Application No. 39473/98 (11 Jan. 2001) (inadmissible).

167  The drafting debates appear to accept that any individual in search of asylum would have an opportunity to request it; see, for example, UNGAOR Part 1 (3rd Session, 1948), ‘Summary Records of Meetings’, 121st Meeting (3 Nov. 1948), 330–31 (Mrs Corbet, UK). The European Parliament describes the right of asylum as a procedural right to apply for asylum, rather than a substantive right to obtain asylum, but in our view it is not only a procedural right: <http://www.europarl.eu.int/comparl/libe/elsj/charter/art18/default_en.htm>.

168  This protection applies to asylum seekers travelling on false documents: R. v. Uxbridge Magistrates’ Court;, ex p. Adimi [2001] QB 667, [1999] Imm AR 560.

169  For discussion of ‘good cause’, see above, Ch. 5, s. 3.3.5; Hathaway, J. C., The Law of Refugee Status, (1991), 46–50.

170  Protocol against the Smuggling of Migrants by Land, Air and Sea, art. 14(1); Protocol to Prevent, Suppress and Punish trafficking in Persons, art. 19(1).

171  See, for example, Migration Act 1958 (Cth), s. 14.

172  See generally, Harding, J., The Uninvited: Migrant Journeys to the Rich World, (2000).

173  See further UNHCR, Addressing Security Concerns without Undermining Refugee Protection: UNHCR’s Perspective, (2001).

174  Mr Ruddock (Australia): UN doc. A/AC.96/SR.562, para. 14 (2002) (in relation to the Tampa incident).

175  Australia’s refugee programme is designed to have this effect. There are annual onshore and offshore refugee quotas. If numbers arriving onshore exceed the annual designated quota, then the offshore quota is reduced accordingly.

176  R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport (UNHCR Intervening) [2005] 2 AC 1, [2004] UKHL 55.

177  Whether the actions of airline employees refusing embarkation to passengers lacking the requisite immigration documents for fear of incurring carrier sanctions imposed by potential receiving States can be attributed to those States, and whether those actions in turn constitute violations of specific international obligations, will be much more difficult to establish. The conduct in question and the underlying laws and policies may be better considered as evincing a lack of good faith to implement treaty obligations.

178  There is no principled reason for applying a higher threshold than States would apply if the individual had already reached their territory; indeed, given that they are still present in the territory in which ill-treatment is feared, one could argue that the risk of such treatment is even more immediate. Note the particular reasoning in R. (B) v. Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643, where the asylum seekers had fled immigration detention in Australia and so were regarded as ‘fugitives’, to whom extradition law principles should apply. Accordingly, the court regarded a request by Australian authorities for the asylum seekers’ return as mandatory, unless refusing to do so would be ‘clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury’: para. 89. But see R. (Al-Skeini) v. Secretary of State for Defence [2006] 3 WLR 508, [2005] EWCA Civ. 1609, paras. 113–128, on the notion of ‘effective control’ as a basis for human rights responsibilities.

179  Sometimes carrier sanctions legislation will provide that it is to operate without prejudice to the State’s international obligations; see, for example, Council Directive 2001/51/EC, above n. 133; Immigration and Refugee Protection Act, s. 148 (Canada).

180  See art. 5, ‘Conduct of persons or entities exercising elements of governmental authority’, in the ILC’s ‘Articles on the Responsibility of States for Internationally Wrongful Acts’, UNGA res. 56/83, 12 Dec. 2001, Annex. The ILC’s commentary to art. 5 specifically mentions as an example of attribution the situation where, ‘Private or State-owned airlines may have delegated to them certain powers in relation to immigration control or quarantine.’ See Crawford, J., The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, (2002), 100.

181  Art. 8, ‘Conduct directed or controlled by a State’; see also the cases cited in the Commentary thereto: Crawford, above note, 110, fn 161.

182  Lauterpacht, E. & Bethlehem, D., ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Feller, E., Türk, V. & Nicholson, F., eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, (2003), para. 67.

183  Executive Committee Standing Committee, 18th Meeting, ‘Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach’, UN doc. EC/50/SC/CRP.17, (9 Jun. 2000) paras. 17–18. See also UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/898 (3 Jul. 1998), para. 16.

184  As explained below (Ch. 10) refugee status determination is implicitly required by the principle of non-refoulement, while the nature of the refugee definition itself supposes case-by-case determination of claims. The right of an asylum seeker to a hearing was expressly recognized by the Inter-American Commission of Human Rights in Haitian Center for Human Rights v. United States, Case 10/675, Rep. No. 51/96, (13 Mar. 1997), Inter-Am.C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 550 (1997), para. 155. See also Pallis, M., ‘Obligations of the States towards Asylum Seekers at Sea: Interactions and conflicts between Legal Regimes’ 14 IJRL 329, 346–7 (2002).

185  1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, arts. 26, 31; Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA res 2625 (XXV) (24 Oct. 1970), para. 3. See Goodwin-Gill, G. S., ‘State Responsibility and the “Good Faith” Obligation in International Law’, in Fitzmaurice, M. & Sarooshi, D., eds., Issues of State Responsibility before International Judicial Institutions (2004), esp. 85–8. See also UNHCR’s submissions in the Roma Rights case: UNHCR, ‘Written Case’, 17 IJRL 427 (2005), paras. 24–38. The House of Lords rejected the issue of good faith on the basis that the 1951 Convention did not apply, as the individuals concerned had not yet left their country of origin: Roma Rights case, [2005] 2 AC 1, para. 64 (Lord Hope).

186  Yearbook of the International Law Commission, 1964, vol. I (Summary Records of the 16th Session), 727th Meeting (20 May 1964), 70.

187  UNHCR, ‘Written Case’, above, n. 185, para. 32.

188  Brownlie, I., Principles of Public International Law, (6th edn., 2003), 425–30, 444; Crawford, Articles on State Responsibility, above, n. 180, 84.

189  For example, in the Roma Rights case, the Czech Republic was obliged to allows its citizens to leave its territory by virtue of art. 2 Protocol 4 ECHR50, and the UK had accepted a duty to protect freedom of movement and non-discrimination in the application of the law: arts. 12, 26 ICCPR66 (although the UK has entered a reservation to art. 12, reserving its right to ‘continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time’).

190  Under the Immigration Rules, asylum is not listed as a ‘recognized purpose’ for seeking entry to the United Kingdom. The United Kingdom regarded its Convention obligations as limited to not taking enforcement action against an asylum seeker already in the country, which would result in refoulement: Home Office, Statement of Immigration Rules, paras. 327–52.

191  The court regarded it more as ‘an underlying principle of an explanatory and legitimating rather than an active or creative nature’: Roma Rights case, [2005] 2 AC 1, para. 60, see also para. 62.

192  Ibid., para. 64.

193  Ibid.

194  See UNHCR, ‘Written Case’, 17 IJRL 427 (2005), paras 24–38.

195  Reservations to the Genocide Convention (Advisory Opinion) (1951) ICJ Reports 15, 23.

196  Preamble, 1951 Convention.

197  Goodwin-Gill, ‘State Responsibility and the “Good Faith” Obligation’, above n. 185’, 98.

198  See for example, the 1988 statement by UN High Commissioner for Refugees Jean-Pierre Hocké: ‘UNHCR’s concern was that fair and efficient asylum procedures guaranteeing full access by those in search of asylum should be the undisputed basis for all future developments’: UN doc. A/AC.96/SR.425, para. 66; full text annexed to Report of the 39th Session: UN doc. A/AC.96/721 (1988). Also, UNGA res. 48/116, 20 Dec. 1993, para. 4; 49/169, (23 Dec. 1994)—the latter calling for access to procedures, ‘or, as appropriate, to other mechanisms to ensure that persons in need of international protection are identified and granted…protection, while not diminishing the protection afforded to refugees under the terms of the 1951 Convention, the 1967 Protocol and relevant regional instruments’: para. 5.

199  UNHCR, ‘Irregular Movements of Asylum Seekers and Refugees’: UN doc. EC/SCP/40/Rev.1 (1985); Report of the Sub-Committee of the Whole on International Protection: UN doc. A/AC.96/671 (Oct. 1985); Report of the 36th Session of the Executive Committee: UN doc. A/AC.96/673, (Oct. 1985), paras. 77–82. Adoption of the Conclusions was delayed until 1989, owing to German reservations.

200  See, for example, UNGA res. 49/169, 23 Dec. 1995, para. 5, reiterating ‘the importance of ensuring access, for all persons seeking international protection, to fair and efficient procedures for the determination of refugee status…’See further below, Ch. 10, s. 2.1, n.120, for changes in the language of the resolutions.

201  See, for example, Executive Committee General Conclusion on International Protection No. 71 (1993), Report of the 44th Session: UN doc. A/AC.96/821 (1993), para. 19(k), (l), recognizing ‘the advisability of concluding agreements among States directly concerned…to provide for the protection of refugees through the adoption of common criteria and related arrangements to determine which State shall be responsible for considering an application for asylum… and for granting the protection required,’ and emphasizing ‘that such procedures, measures and agreements must include safeguards adequate to ensure… that persons in need of international protection are identified and that refugees are not subject to refoulement’; Executive Committee Conclusion No. 85 (1998), para. (p); Executive Committee Conclusion No. 90 (2001), para. (k); Executive Committee Conclusion No. 93 (2002), para. (c).

202  Mr Wrench (United Kingdom): UN doc. A/AC.96/SR.430, para. 53, (1988). This interpretation was reiterated the following year; see UN doc. A/AC.96/SR.442, para. 51 (1989).

203  Report of the Sub-Committee of the Whole on International Protection: UN doc. A/AC.96/781 (9 Oct. 1991), para. 34. The notion of ‘internal flight alternative’ raises similar questions relating to the availability of protection, though in a quite different context. See above, Ch. 3, s. 5.6.1.

204  Although this more typically forms part of western State practice, it does sometimes occur elsewhere. For instance, Kenya denied entry to Sudanese refugees coming from Uganda in 2004 on the grounds that they were coming from a safe country: US Committee for Refugees and Immigrants, World Refugee Survey (2005). For historical background, see the 2nd edition of this work, 333–44.

205  For a detailed examination of the human rights implications of such policies, see Goodwin-Gill, G. S., ‘The Individual Refugee, the 1951 Convention and the Treaty of Amsterdam’, in Guild, E. & Harlow, C., eds., Implementing Amsterdam: Immigration and Asylum Rights in EC Law, (2001).

206  Accelerated procedures were initially introduced as a means of dealing quickly with ‘manifestly unfounded’ claims, but in some States, such as the Netherlands, they are also employed for matters deemed not to require ‘time-consuming investigation’. Accelerated procedures necessarily truncate examination of the merits of the claim, and, on the assumption that claims are unfounded, may contain an inherent bias towards rejection. The Executive Committee regards accelerated procedures as inappropriate unless the claim is ‘clearly fraudulent’ or not related to the criteria in the 1951 Convention: Executive Committee Conclusion No. 30 (1983).

207  UNHCR, ‘Asylum Processes (Fair and efficient Asylum Procedures)’ UN doc. EC/GC/01/12 (31 May 2001), para. 12.

208  Ibid., paras. 12–18 for discussion of best practice.

209  House of Lords, above n. 130, Handling EU Asylum Claims: para. 66.

210  For example, Executive Committee Conclusion No. 15 (1979). Hathaway & Neve suggest that asylum seekers have a right to choose where to seek protection, but do not substantiate this as a matter of law: Hathaway, J. C. & Neve, R. A., ‘Fundamental Justice and the Deflection of Refugees from Canada’, 34 Osgoode Hall Law Journal 213 (1996). See further in favour of such a right, Hathaway, Law of Refugee Status, above n. 169, 46, 47; Hathaway, Rights of Refugees, (2005), 324. Hathaway notes the dilution of the Executive Committee’s earlier position that an asylum seeker’s intentions with respect to where he or she wishes to claim asylum should be taken into account as far as possible (Executive Committee Conclusion No. 15 (1979), para. (h)(iii)), to a point where UNHCR now encourages States to consider concluding readmission agreements (see, for example, UNHCR, ‘Asylum Processes’, above, n. 207, para. 18). However, this may reflect a practical response to unilateral decisions to return individuals to third States, rather than a shift in principle. Against the existence of such a right; see Melander, G., Refugees in Orbit, (1978), 2; Lambert, H., Seeking Asylum: Comparative Law and Practice in Selected European Countries, (1995), 91, 98. Vedsted-Hansen argues that ‘there is neither a strict “direct flight” requirement, nor any legally protected right of individual choice.’ He argues that focusing on whether there is an individual right to choose an asylum country may be the wrong approach, since the ‘combined focus on refugee law and standards of human rights law represents a considerable challenge to contemporary developments in the European refugee protection system’, which mitigate what the State may do: Vedsted-Hansen, J., ‘Non-admission Policies and the Right to Protection: Refugees’ Choice versus States’ Exclusion?’, in Nicholson, F. & Twomey, P., eds., Refugee Rights and Realities: Evolving International Concepts and Regimes, (1999), 287.

211  Though noting the conceptual and theoretical distinctions between the three practices, we use the term ‘safe country’ to encompass the underlying basis of all three mechanisms. Similarly, Legomsky analyses the first country of asylum and safe third country concepts together because ‘in actual practice the two strategies occupy two points on the same continuum.’: Legomsky, S. H., ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’, 15 IJRL 567 (2003).

212  UNHCR, ‘Asylum Processes’, above n. 207, para. 10. See also Executive Committee Conclusion No. 85 (1998); Executive Committee Conclusion No. 87 (1999). Conclusion No. 85 provides that the host country must treat the asylum seeker in accordance with accepted international standards, ensure protection against refoulement, and provide the asylum seeker with the possibility to seek and enjoy asylum.

213  For a fuller discussion of what ‘effective protection’ should encompass, see Phuong, C., ‘The Concept of “Effective Protection” in the Context of Irregular Secondary Movements and Protection in Regions of Origin’, Global Migration Perspectives, No. 26 (Apr. 2005). See also Lisbon Expert Roundtable, ‘Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum-Seekers’, Lisbon Expert Roundtable, (9–10 Dec. 2002); Legomsky, S. H., ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’, 15 IJRL 567 (2003); van Selm, J., Access to Procedures: ‘Safe Third Countries’, ‘Safe Countries of Origin’ and ‘Time Limits’ (UNHCR and Carnegie Endowment for International Peace, Background Paper for Third Track of Global Consultations, 2001).

214  Statement by Ms Erika Feller, Director, Department of International Protection, at the 55th session of the Executive Committee of the High Commissioner’s Programme, Geneva, (7 Oct. 2004).

215  See Executive Committee Conclusion No. 58 (1989).

216  See Executive Committee Conclusion No. 15 (1979).

217  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/975 (2 Jul. 2003), para. 12; Lisbon Expert Roundtable ‘Summary Conclusions’, above, n. 213, para. 12.

218  UNHCR, ‘Note on International Protection’ UN doc. A/AC.96/914 (7 Jul. 1999), para. 20; and House of Lords, Handling EU Asylum Claims, above, n. 130.

219  See above, Ch. 5, s. 2.5.2–3.

220  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/914 (7 July 1999), para. 19.

221  Ms Feller (UNHCR): UN doc. A/AC.96/SR.585, para. 28 (2004). UNHCR has documented cases of refoulement as the result of applying the ‘safe third country’ mechanism: UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/898 (3 Jul. 1998), para. 14.

222  Ibid.

223  Report of the Human Rights Committee, vol. 1, (2002–03) UNGAOR (58th Session) Supp. No. 40 (A/58/40), ‘Estonia’, para. 79(13).

224  In particular, the third State must be a party to the 1951 Convention and/or 1967 Protocol and comply with those instruments, or at least demonstrate that it has developed a practice akin to what those instruments require: Lisbon Expert Roundtable, ‘Summary Conclusions’, above n. 213, para. 15(e).

225  This is particularly important in light of the EU’s recognition of subsidiary protection grounds.

226  Lisbon Expert Roundtable, ‘Summary Conclusions’, above n. 213, para. 15. See also Legomsky’s seven elements of ‘effective protection’: Legomsky, ‘Secondary Refugee Movements’, above n. 211, 629–64.

227  Report on Pre-ExCom Consultations, above n. 105, Annex IX, (2 Oct. 2003).

228  Executive Committee Conclusion No. 85 (1998); Executive Committee Conclusion No. 87 (1999).

229  Ideally, such standards will deal with detention or other restrictions on liberty, the length of proceedings, the availability of interpreters, legal advice, access to UNHCR, etc.

230  Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, [2005] O.J. L 236/13; for text, see below, Annexe 2, No. 20. Whether or not the Directive applies to subsidiary protection is left to the individual Member States’ discretion. It is only mandated for subsidiary protection where Member States have a procedure in which asylum applications are automatically treated as applications for refugee status and other forms of international protection: art. 3(3). See critiques by Costello, C., ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices’, 7 EJML 35 (2005); Immigration Law Practitioners’ Association (prepared by C. Costello), ‘Analysis and Critique of Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (30 April 2004)’, (Jul. 2004).

231  Entry into force 1 May 1999. The Schengen acquis, consisting of the Schengen Agreement, the Schengen Convention, the Accession Protocols and Agreements to the 1985 Agreement and the 1990 Implementation Convention, and decisions and declarations adopted by the Schengen Executive Committee, is annexed to and forms an integral part of the Treaty of Amsterdam. It is binding in international law. For details of the Schengen instruments, see Noll, Negotiating Asylum, above, n. 101, 123–6, Ch. 4, s. 1.2.2. The binding legislative tools of art 251 TEC (directives, decisions, and regulations) and the jurisdiction of the European Court of Justice are now engaged. All asylum provisions are contained in a new Title IV: ‘Visas, asylum, immigration and other policies related to freedom of movement of persons’.

232  Harmonization is to take place in two stages. The work programme for the first stage was set out in the 1999 Tampere Conclusions, and required the first legislative instruments to be agreed by 1 May 2004. The second phase is set out in the 2004 Hague Programme, and is to be completed by 2010. Cf. R. v. Secretary of State for the Home Department, ex p. Adan [2001] 2 AC 477, in which the House of Lords determined that France and Germany could not be considered as safe countries because they did not regard non-State agents as agents of persecution under the 1951 Convention, and this could lead to refoulement. The harmonized laws are designed to overcome the possibility for such future findings within the EU.

233  Preamble, 21.

234  Indeed, the Directive was so criticized during its drafting that NGOs took the unprecedented move of calling for its abandonment. See ECRE, Press Releases, ‘Refugee NGOs in more than 30 European Countries Reject Draft Directive on Asylum Procedures’, (30 Sep. 2003); ‘Refugee and Human Rights Organisations across Europe Call on EU to Scrap Key Asylum Proposal’, (29 Mar. 2004); ‘Refugee and Human Rights Organisations across Europe Express Their Deep Concern at the Expected Agreement on Asylum Measures in Breach of International Law’, (28 Apr. 2004).

235  Commission of the European Communities, Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, COM(2000) 578 final, (20 Sep. 2000), 18.

236  Procedures Directive, art. 25(1). See Council Regulation (EC) No. 343/2003 of 18 Feb. 2003 establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National [2003] O.J. L 50/1 (25 Feb. 2003). This is inconsistent with TI v. UK [2000] INLR 211, which held that a State will breach art. 3 ECHR50 if it removes an individual to a State from which he or she risks removal to another State, in which he or she would be at risk of torture or inhuman or degrading treatment or punishment. In R. (Yogathas) v. Secretary of State for the Home Department [2003] 1 AC 920, [2002] UKHL 36, para. 61, the principle expressed in TI was extended to art. 33 CSR51. See below 400ff for further discussion of the Dublin Regulation.

237  Procedures Directive, art. 25(2)(a).

238  Procedures Directive, art. 25(2)(b), preambular para. 22.

239  Procedures Directive, art. 25(2)(c). Under art. 28(2), the claim may also be considered manifestly unfounded (see also art. 23(4)(c)(ii)).

240  See, for example, Procedures Directive, arts. 23(4)(c)(i), 31(2). For meaning of ‘safe country of origin’: art. 31.

241  See above, Ch. 1, s. 4. Lambert observes that this is similar to the House of Lords’ approach in Horvath v. Secretary of State for the Home Dept. [2001] 1 AC 489, to the effect that the State must have a criminal law in force making violent attacks by persecutors punishable by sentences commensurate with the crime’s gravity; the victim must be entitled to the protection of the law; and there must be a reasonable willingness by law enforcement agencies to prosecute and punish (see, in particular, Lord Clyde at 510–11, adopting the approach of Stuart-Smith L.J. in the Court of Appeal, [2000] INLR 15, para. 22). In the United Kingdom, this test has been extended beyond the 1951 Convention to ECHR50 cases, even though Lambert regards it as falling short of the European Court’s requirements: Cf. R. (Bagdanavicius) v. Secretary of State for the Home Department [2005] 2 AC 668, [2005] UKHL 38, para. 30 (Lord Brown, for the court): ‘a broadly similar approach is adopted under both Conventions to the requirement for the person concerned to demonstrate in addition to the risk of harm a failure in the receiving state to provide a reasonable level of protection’. See Lambert, H., ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’ 55 ICLQ 161, 181 (2006).

242  Mowbray, A., Cases and Materials on the European Convention on Human Rights, (2001), 62; Mowbray, A., ‘Duties of Investigation under the European Convention on Human Rights’, 51 ICLQ 437(2002), cited in Lambert (2006), above, n. 241, 181.

243  Lambert, above n. 241, 181.

244  Procedures Directive, art. 26.

245  Legomsky, ‘Secondary Refugee Movements’, above n. 211, 571.

246  Vedsted-Hansen, ‘Non-Admission Policies’ above, n. 82, 284. This view is acknowledged in Executive Committee Conclusion No. 15 (1979), paras. (h)(iv) and (k); Executive Committee Conclusion No. 58 (1989), paras. (f) and (g).

247  Procedures Directive, art. 39(1)(a)(i).

248  Procedures Directive, art. 27(4).

249  Procedures Directive, art. 27(1). The Directive does not stipulate what status must be accorded to a person found to have a protection need based on a complementary protection ground.

250  Procedures Directive, art. 27(4).

251  Explanatory Memorandum, COM/2000/0578 final, 20.

252  Procedures Directive, art. 27(2)(b).

253  Costello (ILPA), above, n. 230, 24.

254  Explanatory Memorandum, above n. 231, 19 (emphasis added).

255  Ibid.

256  Procedures Directive, art. 27(2).

257  For discussion of ‘effective protection’, and the idea of ‘non-refoulement through time’, see above, Ch 5, 207–8.

258  Procedures Directive, art. 23(4)(c)(ii).

259  Procedures Directive, art. 39(1)(a)(i).

260  Procedures Directive, art. 36(2). For a critique of certain countries listed there, see Costello (ILPA), above n. 230, 30.

261  Procedures Directive, art. 36(1).

262  ECRE, ‘Broken Promises’, above n. 106, 11.

263  Procedures Directive, art. 36(4).

264  Procedures Directive, art. 36(6).

265  Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National’ [2003] O.J. L 50/1; for text, see Annexe 2, No. 17. Commission Regulation (EC) No. 1560/2003 of 2 September 2003 laying down Detailed Rules for the Application of Council Regulation (EC) No. 343/2003 establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National, [2003] O.J. L222. Note, however, that the Dublin Convention remains in force between Denmark and the Member States bound by the Dublin Regulation.

266  Dublin Regulation, art. 3(2).

267  Dublin Regulation, art. 3(3). Note that all EU Member States are considered as safe third countries: Dublin Regulation, Preamble, para. 2.

268  Entry into force 1 May 1999. For details of the Schengen instruments, see Noll, Negotiating Asylum, above n. 101, 123–6, Ch. 4, s. 1.2.2.

269  See Treaty establishing the European Community [2002] O.J. C 325/33, arts. 61–3; Tampere Conclusions; 2004 Hague Programme.

270  Council Regulation (EC) No. 2725/2000, above, n. 106; Council Regulation (EC) No. 407/2002, above, n. 106. See also Council Regulation (EC) 539/2001, above, n. 114.

271  Dublin Regulation, arts. 6–8. For definition of ‘family members’, see art. 2(i).

272  Dublin Regulation, art. 9.

273  Dublin Regulation, art. 10. Though curtailing the individual asylum seeker’s choice to seek asylum in a particular country, safe third country measures ironically represent a considerable restriction on the principle of State sovereignty. In the EU context, they oblige Member States to admit asylum seekers in certain circumstances and to provide asylum to those found to have an international protection need: Vedsted-Hansen, ‘Non-Admission Policies’, above n. 82, 273–4.

274  ECRE, ‘Summary Report on the Application of the Dublin II Regulation in Europe’ (AD2/3/2006/EXT/MH, Mar. 2006), 3.

275  See especially Greek practice: ibid., 5–6. There have been successful challenges in Austria, Finland, France, Italy, the Netherlands, Norway, and Sweden based on the claim that Greece is not a safe third country.

276  See Adan [2001] 2 AC 477; above, Ch. 5, s. 5.3.3.

277  Procedures Directive, art. 29.

278  Procedures Directive, art. 30(1). Before the introduction of the Directive, only a small number of EU States utilized safe country lists: Costello (ILPA), above n. 230, 25. The requirement not to subtract from the EU-wide list is subject only to art. 29(4)–(5), which temporarily suspends a particular Member State’s requirement to treat a country as ‘safe’ if it submits a request to have it removed, or, in the case of a request by Council, temporarily suspends the requirement for all Member States.

279  Costello (ILPA), above n. 230, 25.

280  Procedures Directive, art. 30(2)–(5).

281  Costello (ILPA), above, n. 230, 26.

282  Procedures Directive, art. 31(1).

283  Procedures Directive, art. 39(1)(a)(i).

284  Procedures Directive, art. 39(1)(a)(iii).

285  Procedures Directive, art. 39(3).

286  Procedures Directive, art. 7.

287  Chahal v. United Kingdom (1996) 23 EHRR 413, para. 147; Čonka v. Belgium [2002] ECHR 14, para. 76.

288  Čonka v. Belgium, above n. 287, para. 75.

289  Jabari v. Turkey [2000] ECHR 369, para. 50; see also Čonka v. Belgium above n. 287, para. 79.

290  van Selm, above n. 213, para. 5.

291  Minister for Immigration and Multicultural Affairs v. Thiyagarajah (1997) 80 FCR 543.

292  NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6, (2005) 213 ALR 668.

293  See Patto v. Minister for Immigration and Multicultural Affairs [2000] FCA 1554.

294  S. 36(3) provides: ‘Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ This provision did not apply in NAGV, since the appellants had applied for a protection visa prior to its enactment.

295  NAGV, above n. 292, paras. 91–3, 97.

296  Ibid, para. 91.

297  Migration Act 1958 (Cth), ss. 36(4) and (5).

298  Migration Regulations 1994, reg. 2.12A. On the Australian regime generally, see Taylor, S., ‘Protection Elsewhere/Nowhere’, 18 IJRL 283 (2006); Hadaway, A., ‘Safe Third Countries in Australian Refugee Law: NAGV v. Minister of Immigration and Multicultural Affairs’, 27 Sydney LR 727 (2005).

299  Migration Act 1958 (Cth), s. 91P(2). If the non-citizen has not yet been immigration cleared, he or she is not allowed to apply for any visa, including a protection visa: s. 91P(2). Under s. 91N(1), a person who has two nationalities is also covered by these provisions.

300  Migration Act 1958 (Cth), s. 91Q. Subsection 7 provides: ‘The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.’

301  RSAA, Re SA, Refugee Appeal No. 1/92, (30 Apr. 1992). Thank you to Rodger Haines, QC, for drawing our attention to this case. See also the extensive discussion there of the origin and development of the ‘safe country’ principle.

302  NZ Department of Labour, ‘Immigration Act Review: Discussion Paper’, (Apr. 2006), para. 1212.

303  8 USC §1158(a)(2)(A). See, for example, Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, 5 Dec. 2002.

304  On earlier attempts to reach agreement, based on an October 1995 ‘Memorandum of Agreement’, see the 2nd edition of this work, 336.

305  Exceptions include asylum seekers with a family member in the receiving State who has an eligible refugee application pending or lawful immigration status (other than visitor status); unaccompanied minors; persons not required to obtain a visa; or persons with a valid visa (other than a transit visa) to enter the receiving State: see Agreement between the Government of Canada and the Government of the United States of America above n. 303 art. 4(2).

306  See, for example, the account in ‘Bordering on Failure: The US-Canada Safe Third Country Agreement Fifteen Months after Implementation’ (Harvard Law School, Mar. 2006), 11–15. For the principal grounds of challenge to the Agreement, see Canadian Council for Refugees, ‘Closing the Front Door on Refugees: Report on the First Year of the Safe Third Country Agreement’, (Dec. 2005), Appendix III.

307  Canadian Council for Refugees, ‘Closing the Front Door’, above, n. 306, 3.

308  See ‘Bordering on Failure’, above, n. 306, 11–15. The recognition rate for Haitian asylum seekers in the United States in 2004 was 34.7 per cent (by the US Immigration and Nationality Service) and 18.3 per cent (US Executive Office of Immigration Review) as compared to 61.1 per cent in Canada: UNHCR, 2004 Global Refugee Trends: Overview of Refugee Populations, New Arrivals, Durable Solutions, Asylum-Seekers, Stateless and Other Persons of Concern to UNHCR (17 Jun. 205), Table 8. Particular concerns have been expressed about differing rates for Colombians: Canadian Council for Refugees, ‘Closing the Front Door’, above n. 306, 8–9.

309  Canadian Council for Refugees, Media Release, ‘Safe Third Country Agreement Shown to Violate Refugee Rights’, (29 Mar. 2006).

310  The Dublin Regulation and the US-Canada agreement go beyond a standard readmission agreement, since they also determine the State responsible for examining the asylum claim.

311  In principle, UNHCR prefers readmission agreements to safe third country decisions, since they are not subject to unilateral decision-making and guarantee readmission; see, for example, ‘UNHCR’s Observations on the European Commission’s Proposal for a Council Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status (COM(2000) 578 final, 20 September 2000)’, Jul. 2001, para. 38; UNHCR Position on Readmission Agreements, ‘Protection Elsewhere’ and Asylum Policy (1 Aug. 1994), Pt. 5, cited in Legomsky, ‘Secondary Refugee Movements’, above n. 211, 630–1.

312  See Amnesty International British Section, Playing Human Pinball: Home Office Practice in ‘Safe Third Country’ Asylum Cases, Jun. 1995. This comprehensive and compelling report by Richard Dunstan tracks sixty cases over a nine-month period, to show that the policy on safe third country denials had achieved nothing, with the Home Office rescinding its original decision in the majority of cases and agreeing to consider the claims on their merits.

313  UNHCR, Report of the United Nations High Commissioner for Refugees, UN doc. E/2002/14, (28 May 2002), para. 75. In May 2006, Australia proposed extending this practice by sending all asylum seekers arriving by boat to other countries (such as Nauru) for processing. ‘Designated unauthorised arrivals’, as they were to be known, would have been subjected to different procedures and standards of treatment from onshore claimants, including no independent merits review or any guarantee of future resettlement in Australia for those found to be refugees. See Migration Act (Designated Unauthorised Arrivals) Bill 2006 (Cth); Senate Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill (June 2006); McAdam, J., Submission No. 64 to Senate Legal and Constitutional Legislation Committee Inquiry into the Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (May 2006).

314  While States have a firm legal duty to respect ECHR50 in relation to those within their territory and jurisdiction, the precise scope and locus of the latter remains contested after Banković v. Belgium (2001) 11 BHRC 435, leaving the legal status of offshore processing unclear. See discussion in Ch. 5, 245ff. The UK Court of Appeal in R. (Al-Skeini) v. Secretary of State for Defence [2006] 3 WLR 508, [2005] EWCA Civ. 1609 applied Banković narrowly (paras. 70ff); conversely, in R. (B) v. Secretary of State for Commonwealth Affairs [2005] QB 643, the Court of Appeal was prepared to accept the extraterritorial application of ECHR50 (para. 66). The House of Lords expressed some doubt regarding this conclusion (see Rome a Rights case [2005] 2 AC 1, para. 21), but has not formally interpreted Banković: The case law of the European Court of Human Rights is inconsistent with a strict reading of Banković: see Öcalan v. Turkey (2000) 30 EHRR CD 231 (Admissibility); Öcalan v. Turkey (2003) 37 EHRR 10 (Merits); Öcalan v. Turkey (Grand Chamber) (12 May 2005), applying to Turkish activities in Kenya; Issa v. Turkey, Application. No. 31821/96 (30 May 2000) (Admissibility); Issa v. Turkey, Application No. 31821/96 (Merits) (16 Nov. 2004), applying to Turkish activities in Iraq.

315  Smith, M., ‘Warehousing Refugees: A Denial of Rights, A Waste of Humanity’, in US Committee for Refugees, World Refugee Survey 2004, 38; see also Chen, G., ‘A Global Campaign to End Refugee Warehousing’, ibid. 21.

316  Secretary of State for the Home Department, ‘Statement on Zones of Protection’ (27 Mar. 2003), Stat010/2003, to which is appended the UK’s proposal ‘New International Approaches to Asylum Processing and Protection’, contained in House of Lords European Union Committee, Handling EU Asylum Claims: New Approaches Examined (HL Paper 74, 11th Report of Session 2003–04), Appendix 5.

317  While a number of States have traditionally resettled recognized refugees residing in camps abroad, the UK and UNHCR proposals are considerably different. ‘They are not concerned with the resettlement of those already recognised as refugees. They involve the use by one State of another’s territory, in order to determine claims to asylum which either have already been lodged on its own territory, or might have been lodged there if the claimant had not been intercepted en route’: House of Lords European Union Committee, Handling EU Asylum Claims, above n. 130 para. 73.

318  Communication from the European Commission to the Council and the European Parliament, ‘Towards more Accessible, Equitable and Managed Asylum Systems’ (3 Jun. 2003) COM (2003) 315 final. See further Noll, ‘Visions of the Exceptional’, above n. 130.

319  ‘New International Approaches to Asylum Processing and Protection’, House of Lords, Handling EU Asylum Claims, above n. 130, Appendix 5, 56.

320  Communication ‘Towards more Accessible, Equitable and Managed Asylum Systems’, above n. 130, 6–7.

321  House of Lords, Handling EU Asylum Claims, above n. 130, para. 57.

322  Thessaloniki European Council Conclusions (19–20 June 2003), para. 26.

323  UNHCR Working Paper, ‘UNHCR’s Three-Pronged Proposal’, (Jun. 2003); UNHCR Working Paper, ‘A Revised “EU Prong” Proposal’, (22 Dec. 2003), especially in relation to cases that could be processed in reception centres. This proposal has also been subject to criticism, particularly because it would seem to shift responsibility from Member States to the EU; see, for example, House of Lords, Handling EU Asylum Claims, above, n. 130, paras. 80–8.

324  For an excellent account of the proposals, see Noll, ‘Visions of the Exceptional’, above, n. 130. See also House of Lords, Handling EU Asylum Claims, above n. 130; Office of the United Nations High Commissioner for Refugees, The State of the World’s Refugees: Human Displacement in the New Millennium (2006), 38–9.

325  Noll ‘Visions of the Exceptional’, above n. 130. Note also UNHCR’s three-pronged proposals, above n. 323, which rejects external processing centres, but proposes regional solutions, improved domestic asylum procedures, and the processing of certain cases at reception centres within the borders of the EU.

326  Executive Committee Conclusion No. 22 (1981), Pt 2A, para. 2; Executive Committee Conclusion No. 82 (1997), para. d(iii); Executive Committee Conclusion No. 85 (1998) para. q; see also Office of the UNHCR, UNGA Res. A/RES/51/75, 82nd Plenary Meeting, paras. 3–4 (1996). See also UNHCR, ‘Rescue-at-Sea: specific Aspects relating to the Protection of Asylum-Seekers and Refugees’, Expert Roundtable, Lisbon, (25–26 Mar. 2002), (Summary of Discussions, 11 Apr. 2002), para. 14.

327  See, for example, UNHCR, Handbook, para. 192(vii). For further discussion of the international legal implications, see MacDonald, I. & Finch, N., ‘In the Matter of the Proposal by the United Kingdom to Establish Transit Processing Centres in Third Countries and the Compatibility of this Proposal with the United Kingdom’s Obligations under the 1951 Refugee Convention and the European Convention on Human Rights: Opinion’, London, (22 Jun. 2003): <http://www.justice. org.uk.>

328  House of Lords, Handling EU Asylum Claims, above n. 130, para. 61. On the meaning of ‘effective protection’, see above, s. 6.3.

329  House of Lords, Handling EU Asylum Claims , above n. 130, para. 68; see also House of Lords European Union Committee, Minimum Standards in Asylum Procedures (HL Paper 59, 11th Report of Session 2000–01), paras. 122–3.

330  Amnesty International, ‘UK/EU/UNHCR: Unlawful and Unworkable—Amnesty International’s Views on Proposals for Extra-Territorial Processing of Asylum Claims’, (2003), AI Index IOR 61/004/2003.

331  UNHCR, ‘Reception of Asylum-Seekers, including Standards of Treatment, in the Context of Individual Asylum Systems’, Global Consultations on International Protection, UN doc. EC/GC/01/17 (4 Sept. 2001), para. 3, referring to arts. 3, 4, 5, 7, 8, 12, 16, 20, 22, 31, and 33 of the 1951 Convention.

332  For example, art. 2 ICCPR66; art. 14 ECHR50.

333  See Ch. 6. Both Hathaway and Edwards have independently argued that refugee status comprises Convention status plus human rights law entitlements: Hathaway, Rights of Refugees, (2005), 8; Edwards, A., ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’, 17 IJRL 293 (2005). Grahl-Madsen, earlier had observed that the ‘catalog of rights and benefits due to refugees’ had been extended through various Council of Europe and ILO agreements: Grahl-Madsen, A., ‘The European Tradition of Asylum and the Development of Refugee Law’, (1966), in Macalister-Smith, P. & Alfredson, G., The Law Beyond, (2001), 34, 41.

334  Executive Committee Conclusions No. 33 (1984), No. 44 (1986), No. 48 (1987), No. 75 (1994), No. 82 (1997), No. 93 (2002), No. 101 (2004).

335  Art. 7 ICCPR66; arts. 3, 16 CAT84.

336  The extension of these conditions to persons seeking subsidiary protection is optional, and will not apply for example in the UK: Asylum Seekers (Reception Conditions) Regulations 2005; ‘Implementation of Council Directive 2003/9/EC of 27 January 2003 laying down Minimum Standards for the Reception of Asylum Seekers: Responses to the Home Office Consultation’, (14 Jan. 2004), paras. 36–7, noting criticisms of that approach. See also House of Lords Select Committee on the EU, Minimum Standards of Reception Conditions for Asylum Seekers (8th Report, 27 Nov. 2001), para. 81; Executive Committee Conclusion No. 82 (1997); Rogers, N., ‘Minimum Standards for Reception’, 4 EJML 215 (2002); Guild, E., ‘Seeking Asylum: Storm Clouds between International Commitments and EU Legislative Measures’, 29 European Law Review 198 (2004).

337  States must ensure that this restriction does not interfere with private life or ability to access the rights in the Directive: art. 7(4); see art. 12 ICCPR66.

338  Reception Conditions Directive, art. 7(2).

339  Reception Conditions Directive, art. 7(3).

340  Reception Conditions Directive, art. 7(5).

341  Cf. Hathaway, J. C., ‘What’s in a Label?’, 5 EJIL 1, 11 (2003).

342  Reception Conditions Directive, art. 8.

343  Reception Conditions Directive, art. 14.

344  Reception Conditions Directive, art. 11.

345  Reception Conditions Directive, art. 11(4).

346  Reception Conditions Directive, art. 12.

347  Reception Conditions Directive, art. 15(1). Art. 15(2) provides: ‘Member States shall provide necessary medical or other assistance to applicants who have special needs.’

348  Art. 13(2).

349  Reception Conditions Directive, art. 13(3).

350  See R. (Limbuela) v. Secretary of State for the Home Department [2006] 1 AC 396, [2005] UKHL 66, discussed above in Ch.5, 265, n. 375.

351  See, for example, the annual reports of the UNHCR Executive Committee, the yearly resolutions of the UN General Assembly on UNHCR and related issues, and reviews by NGOs, such as the World Refugee Survey published each year by the US Committee for Refugees and Immigrants.

352  This is not to say the individual’s right to asylum may not have some future; merely that progress is more likely to be achieved through the development of regional instruments and the promotion of effective municipal laws, particularly to ensure the integrity of the principle of non-refoulement. Note, however, the 1991 decision of the Conseil constitutionnel of France on the right of asylum and the Schengen Convention. Referring to the Preamble of the 1946 Constitution (‘Tout homme persécuté en raison de son action en faveur de la liberté a droit d’asile sur les territoires de la République’), the court decided that the Schengen Convention might be ratified without infringing this right, because it expressly reserved to States the entitlement to consider an asylum claim even though it was properly the responsibility of another State party: Conseil constitutionnel, Décision no. 91-294 DC, 25 juillet 1991, paras. 30–1; Oliver, P., ‘The French Constitution and the Treaty of Maastricht’, 43 ICLQ 1 (1994).

353  See above, Ch. 5.

354  Cf. UNGA resolutions 832(LX), 21 Oct. 1954, and 1166(XII), 26 Nov. 1957.

355  Türk, V., ‘Forced Migration and Security’, 15 IJRL 113, 115 (2003).

356  For example, SC res. 1624, 14 Sept. 2005; SC res. 1373 28 Sept. 2001, para. 3(f), where the Security Council called upon States to: ‘Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts.’ See also SC res. 1624, 14 Sept. 2005, preambular paras. 2, 7; operative para. 4.

357  Crowley, J., ‘Differential Free Movement and the Sociology of the “Internal Border”’, in Guild, E. & Harlow, C., eds., Implementing Amsterdam: Immigration and Asylum Rights in EC Law (2001), 21. See also Lahav, G., ‘Immigration and the State: The Devolution and Privatisation of Immigration Control in the EU’, 24 Journal of Ethnic and Migration Studies 675 (1998).