Abstract
The prohibition of refoulement is the cornerstone of international refugee and asylum law and is contained in and developed under various international treaties. To ensure that people seeking protection can have access to a procedure in which their claims can adequately be examined access to the territory of the host State is essential if this is the only way to guarantee a fair procedure. According to UNHCR, more and more States try to prevent the prohibition of refoulement from being applicable in the first place. The EU Dublin Regulation and EU Procedures Directive guarantee asylum seekers on the territory and at the border access to the asylum procedure, at least in one EU country. UNCHR argues that activities at EU border points are not always transparent. Competencies and responsibilities of States vis-à-vis persons intercepted outside Europe are also not well defined. There should be corresponding safeguards and the Council should be more transparent on these issues.
René Bruin, is a lawyer and the National Officer of UNHCR in The Hague. The views expressed in this article do not necessarily coincide with the views of UNHCR.
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Notes
- 1.
Article 5 par 1 (f) European Convention for the Protection of Human Rights and Fundamental Freedoms.
- 2.
See, for example, Article 33 of the Convention Relating to the Status of Refugees, Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 7 of the International Covenant on Civil and Political Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
- 3.
Hathaway 2005, p. 280. He inter alia reminds the readers of his book of the whereabouts of the St. Louis, carrying Jewish refugees not being allowed to leave the boat in North and South America ending up in the concentration camps in Germany.
- 4.
Ibid., pp. 291–292.
- 5.
One can also mention the Rapid Action Teams as deployed by inter alia the Dutch authorities in combating human smuggling and trafficking.
- 6.
FRONTEX started to be fully operational on 3 October 2005. According to the FRONTEX website FRONTEX staff consists of 164 seconded national experts, temporary, auxiliary and contract staff. FRONTEX strengthens border security by ensuring the coordination of Member States’ actions in the implementation of Community and EU measures relating to the management of the external borders, working closely with other EU partners responsible for the security of the external borders, such as Europol, CEPOL and EMSA, see http://www.FRONTEX.europa.eu.
- 7.
The only cases known to me are the Prague airport case in the UK concerning British ILOs stationed at Prague airport in the Czech Republic, Regina versus Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others, [2004] UKHL 55, House of Lords, 9 December 2004, available at www.unhcr.org/refworld/docid/41c17ebf4.html, case also published in International Journal of Refugee Law 2005, pp. 217–270 and the Marine I case dealt with by Committee Against Torture, J.H.A. v Spain, 21 November 2008, Communication No. 323/2007.
- 8.
- 9.
UN News Centre, May 7 2009.
- 10.
Corriere della Sera, May 8 2009.
- 11.
Communication from the Commission to the European Parliament and the Council, ‘An area of freedom, security and justice serving the citizen’, Brussels, COM (2009) 262/4.
- 12.
Article 3 Convention against Torture; Article 7 International Covenant on Civil and Political Rights, Article 3 European Convention on Human Rights.
- 13.
Wouters 2009, pp. 48–55.
- 14.
Feller et al. 2001, p.178.
- 15.
ECtHR Amuur versus France 25 June 1996, Appl. No. 19776/92 and Gebremedhin versus France. 26 April 2007, Appl. No. 25389/05.
- 16.
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, Official Journal of the European Union 25 February 2003, L50/1.
- 17.
Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, see Article 25, 1 (sub a, b, c).
- 18.
Article 3 Dublin regulation reads: 1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in this chapter indicate is responsible. 2. By way of derogation from Para 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.
- 19.
ECtHR, March 7 2000, Application no. 43844/98, T.I versus United Kingdom; the ECtHR reiterated this in K.R.S. versus United Kingdom, see ECtHR December 2 2008, Application no. 32733/08, K.R.S. versus United Kingdom,available at: http://www.unhcr.org/refworld/docid/49476fd72.html. The Court finds that this ruling (T.I vs. UK) must apply with equal force to the Dublin Regulation, created within the framework of the “third pillar” of the European Union.
- 20.
Letter to the State Secretary of Justice dated 19 December 2008, dir/en/2008/358.
- 21.
Letter of the State Secretary of Justice dated 11 March 2009, KUBIS/22830.
- 22.
The man was arrested upon arrival in Syria, see Amnesty International MDE24 005/2005, 26 January 2005.
- 23.
Den Heijer 2009, footnote 65.
- 24.
General Comment 31: “The Nature of the General Legal Obligation Imposed on States Parties to the International Covenant on Civil and Political Rights”.
- 25.
See for a comprehensive analysis of extraterritorial responsibility to ensure the rights contained in the ICCPR, in particular the right to be protected from refoulement, Wouters 2009, pp. 372–376.
- 26.
See for a comprehensive analysis of extraterritorial responsibility to ensure protection from refoulement under Article 3 CAT, Wouters 2009, pp. 435–437.
- 27.
Ibid., pp. 205–220.
- 28.
To set up a recognition procedure aimed at identifying and sending persons back is a bit strange.
- 29.
According to a reconstruction made by UNHCR the 35 African asylum seekers ended up in Guinea. With money of the Spanish authorities they returned home. Not all of the 35 Asian asylum seekers applied for asylum, only 13 of them. On April 23 276 of the 299 persons still in Mauritania returned home with the help of IOM. According to the organization lodging the complaint with CAT, the organization did so also on behalf of these 23 persons.
- 30.
Wouters 2009, pp. 435–438.
- 31.
The Committee Against Torture referred to General Comment 2, adopted 24 January 2008, CAT/C/GC/2.
- 32.
ECtHR 10 July 2008, Application nr. 3394/03, case of Medvedyev and others versus France.
- 33.
ECtHR, Xhavara and 12 Others versus Italy and Albania, 11 January 2001, Appl. No. 39473/98.
- 34.
Article 3 b of the Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), 13 April 2006, Official Journal of the European Union L 105/1. See also Recital 20 of its preamble.
- 35.
Now, after the Treaty of Lisbon, the legal basis used for FRONTEX is Articles 74 and 77(1)(b) and (c) TFEU, see newly proposed Regulation amending the 2007 Regulation establishing FRONTEX, COM (2010)61 final.
- 36.
FRONTEX is more and more active in the Mediterranean. The Associated Press reported May 19 2009 the EU agency, known as FRONTEX, has sent 40 officers from 20 countries to work with 165 Greek border guards in the exercise. Border guards from new EU member Bulgaria are also assisting. Athens is seeking greater assistance from the European Union to help stop immigrants illegally crossing over its rugged borders with Turkey or reaching dozens of islands in the Aegean Sea. FRONTEX officers are using heartbeat and carbon dioxide detectors, along with heat cameras and other sensors to scan vehicles, and are watching the border with a surveillance helicopter and aircraft.
- 37.
Den Heijer 2010.
- 38.
Without prejudice to the exceptions provided for in Para 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorized crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. These penalties shall be effective, proportionate and dissuasive.
- 39.
UNHCR Observations on the access to the territory and the asylum procedure for persons seeking protection in the European Union, June 2006, Page 3, Para 12.
- 40.
- 41.
UNHCR, ‘Response to the European Commission’s Green Paper on the Future Common European Asylum System, September 2007, p. 50. A reference is made to Executive Committee Conclusion on Protection Safeguards in Interception Measures, no. 97 (LIV) 2003.
- 42.
Article 19 Paras 1 and 2 of the EU Charter on Fundamental rights read as follows: 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
- 43.
UNHCR Observations on the access to the territory and the asylum procedure for persons seeking protection in the European Union, June 2006, Page 3, Para 12.
- 44.
Weinzierl 2007.
- 45.
Council Regulation (EC) 377/2004 on the creation of an immigration liaison officers network, 19 February 2004, Official Journal of the European Union 2.3.2004, L64/1.
- 46.
Besides the network of Liaison Officers the Netherlands has situated a Rapid Action Team in Nigeria to check direct flights to the Netherlands in order to detect victims of trafficking.
- 47.
General Comment No. 27: Freedom of movement (Article 12): 02/11/99, CCPR/C/21 REV.1/Add.
- 48.
No reference has been made to the issue in the latest Concluding observations of the Human Rights Committee with regard to France and United Kingdom, see for France CCPR/C/FRA/CO/4, 31 July 2008 and for the United Kingdom CCPR/C/GBR/CO/6 30 July 2008.
- 49.
Council Regulation (EC) 377/2004) on the creation of an Immigration liaison officers network 19 February 2004, Journal of the European Union, L 64/1, Article 2.
- 50.
UN High Commissioner for Refugees 2004.
- 51.
Res. (67) 14 on Asylum to Persons in Danger of Persecution, adopted 29 June 1967.
- 52.
Regina versus Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others, [2004] UKHL 55, United Kingdom: House of Lords, 9 December 2004, available at http://www.unhcr.org/refworld/docid/41c17ebf4.html.
- 53.
Hathaway 2005, p. 312.
- 54.
Other non-EU countries have stationed ILOs as well. Canada has so-called Canadian "Migration Integrity Officers" in countries of transit. They have an unknown impact with regard to access to Canadian territory, but this appears to be significant. Canada maintains a large number of officers abroad, whose primary focus is interdiction. It is unclear what instructions Officers are given in cases where they identify individuals with protection concerns.
- 55.
European Council on Refugees and Exiles 2007, available at http://www.unhcr.org/refworld/docid/4766464e2.html.
- 56.
Ibid., pp. 309–312.
- 57.
Weinzierl 2007, p. 48.
- 58.
Refugee Council in the United Kingdom 2008.
- 59.
International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Article reads: The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
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Bruin, R. (2011). Border Control: Not a Transparent Reality. In: Goudappel, F., Raulus, H. (eds) The Future of Asylum in the European Union. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-802-6_3
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