Responsibility for Protection: Readmission Agreements and Asylum Seekers

1. ‘Readmission Agreements, Asylum Seekers and the 1951 Geneva Convention related to the Status of Refugees’Annabelle RoigUNHCR Brussels29 November 2005, Kiev

2. The concept of Responsibility for Protection • The Convention does not specify which state is responsible but • The principle of Non Refoulement (‘in any manner whatsoever’) is determining an important responsibility through 5 elements: • Cornerstone of International refugee law, rule of customary international law • Duty to observe this principle as soon as the individual concerned fulfills the refugee definition • Prohibition of expulsion from the territory but also at the borders • Direct / indirect refoulement • The non refoulement principle applies to a broader category of persons than refugees through the body of international human rights law and jurisprudence

3. Protection Responsibility Two consequences derive : • Whenever a state is presented with a refugee claim, it is duty-bound to identify its non refoulement obligation by asserting the person’s claim • International refugee law does not prohibits states from sending an asylum seeker to another state where s/he does not fear persecution and from which there can’t be indirect refoulement. However, international law does not oblige a state to readmit a non-national sent by another state

4. Responsibility Sharing • Conclusion: while the state which receives the asylum application has the primary responsibility to assess the claim, it can call on other state to share responsibility of providing international protection • This concept has been shared since the early days : see the Preamble of the Convention and Executive Committee Conclusions • Refer to the concept of EU ‘Regional Protection Programme’

5. Practice :Responsibility Shifting • Late 80s, increase of asylum seekers in Europe prompt states to adopt specific measures such as the ‘safe third country’ notion, by which a state unilaterally declares not to be responsible for considering the claim and attributes responsibility to some other state • Such practice / policy is not grounded in international refugee law Excom Conclusion 58 (1989) is about the concept of ‘first country asylum’ • Progressive shift from the concept of actual protection to presumptive protection.. From ‘have’ to ‘should have’ to ‘could have’ • Concept of ‘protection elsewhere’ enshrined in European Community Law in the asylum procedures draft Directive but problematic

6. Protection and Readmission Agreements • Readmission agreements became one tool to secure the consent of the state to admit the ‘irregular' asylum seeker • Originally RAs are designed to facilitate readmission of nationals but increasingly also third country nationals • Problem if no clear distinction is made between return of irregular nationals / migrants and of persons in need of protection • The criteria of nationality or irregular presence are not determining factors to return the refugee claimant • At stake is the respect of the principle of non refoulement and the determination of responsibility for receiving and adjucating the claim • Readmission agreements fail to guarantee these protection minima

7. Sharing Responsibility • UNHCR EXCOM Conclusions recognize the need for responsibility sharing agreement since 1979 “Refugees without an asylum country’ and in 1993 in order to avoid refugees in orbit • Advantages for both states and refugees since it ensures one state will look at the claim and avoids so called ‘asylum shopping’ and ‘in orbit situations’ • However the mere possibility to seek and enjoy asylum in a given country should not be the only one consideration: the links with a particular country are also important

8. EU practice • Positive example between EU Member States with the Dublin Convention and now the Dublin II Regulation • Not prefect however • Problem : The concept of ‘safe third country’ has precedence over other criteria (i.e. expulsion has become the rule, not the exception) • Further, this concept has been regulated in the asylum procedures directive as an admissibility procedure with important flaws in UNHCR’s view

9. UNHCR’s Proposals • A general reference to international obligations in the readmission agreement is not sufficient • Safeguards ensuring ACCESS to asylum procedure and respect of direct / indirect refoulement should be inserted in the following ways : • RAs should EXPLICITLY exclude from the scope of their application asylum seekers unless an agreement on the allocation of responsibility is in force between the two parties and the concerned state is assessed as a ‘safe third country’ in each individual case, or - the receiving country is assessed as a safe third country, is informed about the status of the returned person and explicitly accepts to examine the claim in its merits

10. UNHCR’s proposals • This is however unpractical for states • Example of the EU readmission agreement with Albania : 2 years suspension time frame coupled with capacity building measures (asylum and migration management) • Proposal : forget about the legal fiction of ‘protection elsewhere’ and reduce the scope of RAs to nationals only and thus increase the number of RAs concluded • Meanwhile work to make as many states as possible as much as possible safe, which is UNHCR’s overall objective and the duty of affluent states.