Right to Non-Refoulement – Protection Against Expulsion By Kris Spartanska

Table of Content: Development of Non-refoulement principle Obligations under the principle Development of EU Asylum Policy Asylum Procedure Directive Temporary Protection Directive Qualification Directive Dublin Regulation EURODAC

Development of Non-refoulement principle Few attempts before World War II 1951 Refugee Convention - No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. International Covenant on Civil and Political Rights Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment European Convention on Human Rights Council of Europe’s Resolution on Minimum Guarantees for Asylum Procedures 1995

Obligations under the principle of non- refoulement Applies to any type of transfer Prohibits so-called secondary refoulement Prohibits transfer to countries where non-state entities or individuals constitute potential risk The principle is absolute

EU Asylum Framework 1 st steps – Schengen Agreement (1985), Single European Act (1987) - entry, movement and residence of nationals of third countries. ‘London Resolutions’ (1992) Maastich Treaty – 3 rd pillar Treaty of Amsterdam and an Annexed Protocol (1997) Treaty of Nice – qualified majority

Secondary Legislation Tampere, Brussels (2004) Hague Programme Council Regulations and Directives Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

Asylum Procedures Directive (2005/85) Rules on minimum procedural guarantees for asylum seekers, minimum standards in the decision making process and important definitions concerning the asylum procedures. Right to admission in the territory Right to appeal a negative decision on an asylum application Member States are not allowed to return asylum seekers from the border

had to lower the standards and expand the exceptions applicants are allowed to remain in the Member State until the determining authority has made a decision in accordance with the procedures at first instance (art.7) concerns about standards applicable for protection seekers who are subject to an extradition request considering the applications inadmissible and forcefully returning the applicants to third countries or the country of origin

Problems First country of asylum (art.26): - No clear definition of ‘sufficient protection’ - Is there a compatibility with the 1951 Refugee Convention? - burden of first country; burden sharing principle

‘Safe Third Country’ - Life and liberty are not 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 Refugee Convention is respected; - The prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; - The possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the 1951 Refugee Convention. - Case-by-case consideration

European Safe Third Country: - Has ratified and observes the provisions of the 1951 Refugee Convention without any geographical limitations; - Has in place an asylum procedure prescribed by law; - Has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies; and - Has been so designated by the Council in the common list of third countries in accordance with Article 36(3).

Article 36 of the Asylum Procedures Directive provides that a MS may provide no, or not full examination for an asylum application which is submitted by a person who is seeking to enter or has entered into the territory illegally from a safe third country Safe Country of Origin (art.31) - Bar to the access to asylum procedure - Burden of proof on the applicant

Temporary Protection Directive 2001/ 55 Temporary Protection Directive 2001/55 Initially 1 year Extended automatically by six monthly periods for a maximum of one year A critical question to be answered with regard to the non-refoulement principle is what to do after the ending or termination of the temporary protection regime. In this respect, Article 20 of the Directive provides that the general laws on protection and on aliens in the Member States should apply when the temporary protection ends

Protected Entry Measures - identifying candidates for protection at the earliest stage possible in order to avoid fiscal, social and other costs born by both the protection seeker and the host country Interception Measures - not to refoule asylum seekers who arrive at the border posts, ports or transit zones of airports

Qualification Directive (Art. 21) Criticised for lacking a procedural safeguard that is of complementary nature to the principle of non-refoulement Directive should be evaluated taking into consideration the evolution of the international obligations of Member States regarding non-refoulement

Dublin System Dublin Regulation (2003/343/CE) - aims to “determine rapidly the MS responsible (for an asylum claim)” and provides for the transfer of an asylum seeker to that MS - Prevent submitting applications in multiple MS; refugees in ‘orbit’ - hierarchical determination criteria - responsibility for examining an asylum application lies with the MS which played the greatest part in the applicant's entry into or residence (exceptions for protection of family unity)

EURODAC To establish a system for comparing fingerprints of asylum seekers and some categories of illegal immigrants Additional data: - the EU country of origin; - the sex of the person; - the place and date of the asylum application or the apprehension of the person; - the reference number; - the date on which the fingerprints were taken; - the date on which the data were transmitted to the Central Unit

European Refugee Fund “to support and encourage the efforts made by the Member States in receiving and bearing the consequences of receiving refugees and displaced persons…”.

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