UNHCR Position on Readmission Agreements, 'Protection Elsewhere' and Asylum Policy

1.   INTRODUCTION

An increasing interest is shown in further developing criteria with respect to the handling of asylum applications among States, e.g. in connection with readmission agreements and the use of the concept of "protection elsewhere".

The Office of the United Nations High Commissioner for Refugees (UNHCR) closely follows how States intend to resolve the question of how to allocate responsibility for examining asylum applications so as to ensure that refugees and asylum-seekers receive the protection they require somewhere. By sharing its views on the relation between readmission agreements, the concept of "protection elsewhere" and asylum law and policy, the Office hopes to be able to contribute to the successful resolution of this question, in full respect of established refugee law and principles. It reiterates its readiness to play a facilitating role in this connection.

Agreement among States in this context would enhance the international protection of refugees by leading to the orderly handling of asylum applications and could help to reduce the misuse of asylum procedures in connection with irregular migration. An analysis of current readmission agreements indicates that such agreements are not originally intended for this purpose. Readmission agreements may, however, be used in this connection if they included some specific asylum-related provisions. In the absence of formal readmission agreements including provisions regarding the possibility for examination of asylum requests, the Office recommends explicit or at least implicit consent of the State to which an asylum applicant is returned, to receive him or her and consider the asylum claim.

2.   CURRENT READMISSION AGREEMENTS

Current readmission agreements, whether bilateral or multilateral, normally apply to the return of nationals of the contracting States and/or of third country nationals who are found to be staying irregularly in the territory of a contracting State. They do not generally take into account the special situation of asylum-seekers, in particular the responsibility of States to afford them access to fair procedures for the determination of refugee status and the granting of asylum and, in this way, to ensure that refugees are not subject, directly or indirectly, to refoulement.

The specific question of readmission of asylum-seekers is addressed, however, in some multilateral agreements, such as in the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities ("Dublin Convention") and in the Schengen Implementation Agreement. In addition, the readmission agreement between the Schengen States and Poland contains some provisions relating to asylum-seekers.

The first two instruments contain provisions determining which of the Contracting Parties is responsible for examining asylum requests lodged in its territory, and refer explicitly to the obligations deriving from the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Hence, these instruments could be qualified as readmission agreements that, while authorizing the transfer of asylum-seekers from the territory of one Contracting Party to that of another, respect the principle that each individual asylum request will be examined, and that persons found to be refugees will receive the protection they require. In this manner, the risk of so-called "orbit situations" and of refoulement is minimized.

The readmission agreement between the Schengen States and Poland also includes an explicit reference to implementation of the provisions of the 1951 Convention and the 1967 Protocol, implicitly . recognizing the precedence of the obligations deriving from the 1951 Convention over the application of the said readmission agreement.

3.   PREVAILING PRINCIPLES

The question of how to elaborate common criteria to identify the State responsible for examining an asylum application has to be considered in connection with the relevant principles of international refugee law, deriving from the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, in conjunction with the right to seek and enjoy in other countries asylum from persecution, as set forth in Article 14 (1) of the Universal Declaration of Human Rights.

Article 33 of the 1951 Convention reflects a fundamental norm of international refugee law: respect for the principle of non-refoulement. This article requires, that refugees be protected - at all stages of the examination of their claim - against direct or indirect return to a place where their life or freedom might be threatened for reasons mentioned in the 1951 Convention. In this connection it is useful to recall that every refugee is, initially, also an asylum-seeker. Therefore, to protect refugees, asylum-seekers must be treated on the assumption that they may be refugees until their status has been determined. Consequently, every asylum-seeker should have access to status determination procedures and be assisted to present his or her claim.

Also of relevance are Conclusions of the Executive Committee of the High Commissioner's Programme (ExCom), i.e. Conclusion No. 9 (XXVIII) (1977) on family reunion, No. 15 (XXX) (1979) on refugees without an asylum country, and Conclusion No. 58 (XL) (1989) on the problem of refugees and asylum-seekers who move in an irregular manner from a country in which they had already found protection.

The responsibility of a State under the 1951 Convention and 1967 Protocol is engaged whenever that State is presented with a request for asylum involving a claim to refugee status by a person either at its borders or within its territory or jurisdiction. In all such cases States Parties are required, inter alia, to observe the principle of non-refoulement. The fact that a refugee has found or could find protection in one country does not remove the obligation of other States to respect the principle of non-refoulement in dealing with the refugee, even though it may be agreed that the primary responsibility for providing international protection, including asylum, lies with another State.

4.   FORMAL AGREEMENTS

The Executive Committee of UNHCR recognized in the General Conclusion on International Protection, which it adopted in October 1993, the advisability of agreements among states directly concerned, in consultation with UNHCR, 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 refugee status and for granting the protection required, and thus avoiding "orbit situations" [Paragraph 19(k) of the Report of the 44th Session of ExCom].

It would clearly be highly desirable if formal agreements could be concluded, which include commitments by the States Parties to deal with the applications for asylum for which they are responsible in accordance with their obligations deriving from the 1951 Convention and the 1967 Protocol. Such commitments may be formulated in specific agreements or be part of a general readmission agreement. In both cases, the agreements should include an explicit reference to obligations of the States Parties deriving from the 1951 Convention and the 1967 Protocol.

To ensure that one of the States Parties will give the asylum application due consideration within its own status determination procedure, the provisions of such agreements should, furthermore, explicitly relate to the responsibility of that country to examine asylum requests and of the sending State to advise the authorities of that country of the basis of the removal decisions. The latter responsibility is intended to avoid the possibility that the receiving State believes the application to have been rejected on its merits.

5.   MUTUAL CONSENT

In the absence of formal agreements, States may have recourse to the concept of "protection elsewhere". This concept has been employed under such formulations as "safe third countries", "safe country" and "host third country" in order to resolve the question of how to allocate responsibility for examining asylum applications among States in such a way as to ensure that refugees and asylum-seekers receive the protection they require somewhere.

Since the objective of States must be not only to send asylum applicants to third countries but also to ensure that those applicants who are refugees in fact obtain protection there, it is essential that all feasible steps are taken to make certain that protection will actually be provided, particularly in the absence of formal (readmission) agreements as referred to in section 4 above.

In order to avoid the risk of so-called orbit situations, with the attendant hardships for asylum-seekers as well as the possibility of refoulement, it is recommended that the consent of the third country be obtained before an asylum applicant is sent to that country. Where such consent cannot be obtained, there must, in any event, be full assurance that the asylum-seeker will be admitted and his or her asylum application examined in fair procedures.

To ensure that this in fact occurs, it is suggested that in all cases the authorities of the third country be informed in advance of the return of any asylum-seeker whose application has not yet been substantively examined so that appropriate notification can be given to the border officials and the necessary protection guaranteed.

In line with the relevant Conclusions of the Executive Committee, States should, furthermore, give due regard to any links which the applicant has with them as compared with a third country where he/she has no such links, for example, when having merely been in transit. Special regard should be given to instances where an applicant has close family links in the country concerned.

6.   ROLE OF UNHCR

As and where appropriate, UNHCR could play a role in facilitating the negotiation of agreements between countries for the handling of asylum applications, as well as in securing the consent of third countries for the return and readmission of asylum applicants and their effective protection in appropriate cases where no general agreement exists. In this connection, it may be recalled that UNHCR is ready to share with States which request it information concerning practices and conditions in other countries.

August 1994