Safeguarding the Principle of Non-Refoulement in Europe: Counteracting Containment Policies in the Common European Asylum System

Western University Scholarship@Western Electronic Thesis and Dissertation Repository 7-30-2020 10:00 AM Safeguarding the Principle of Non-Refoulement in Europe: Counteracting Containment Policies in the Common European Asylum System Jenny Hiu Kwan Poon, The University of Western Ontario Supervisor: Oosterveld, Valerie L., The University of Western Ontario A thesis submitted in partial fulfillment of the equirr ements for the Doctor of Philosophy degree in Law © Jenny Hiu Kwan Poon 2020 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the International Law Commons Recommended Citation Poon, Jenny Hiu Kwan, "Safeguarding the Principle of Non-Refoulement in Europe: Counteracting Containment Policies in the Common European Asylum System" (2020). Electronic Thesis and Dissertation Repository. 7111. https://ir.lib.uwo.ca/etd/7111 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. ABSTRACT This thesis examines the interpretation and application of the principle of non-refoulement within the Common European Asylum System (CEAS), a system designed to enhance the fair-sharing of responsibilities among European Union (EU) Member States and to enhance harmonizatio*n on the application of EU law. It argues that the laws and policies of the CEAS have led to an increased potential to violate non-refoulement. While the norm of non-refoulement itself is defined in a robust manner in both international and European law, the actual practice of that law is far from compliant with minimal standards. The thesis begins by explaining the norm of non-refoulement and situates it within both international and European law. It then discusses how, through the lens of containment theory, the EU is effectively using the laws and policies of the CEAS to deter, deflect, and contain asylum claimants and refugees away from the EU and to other third countries. Containment is a type of control theory which is derived from spatial and human geography and applied to law in the migration context. Defined as the EU’s use of legal measures to restrict, regulate, and control the mobility and immobility of migrants, the ‘containment’ of asylum claimants and refugees within the CEAS is demonstrated through the case studies of the United Kingdom (UK) and Germany. These containment policies are designed to shift the EU’s responsibility for processing asylum applications elsewhere - outside of the EU, to third countries deemed ‘safe’ and, in other instances, to another Member State that is assumed to be in compliance with relevant international and European law obligations. In the case study examples, both the UK and Germany’s practices of ‘safe’ third country and Dublin transfers evidence containment policies, which heighten the potential of breaching non- refoulement . In the UK example, the use of ‘safe’ third country concepts demonstrate that the UK does not examine the individualized risks to asylum applications before sending claimants back to third countries through which they have passed and that are deemed ‘safe’. The use of ‘safe’ third country lists further heightens the potential for the principle of non-refoulement to be breached when a blanket presumption of safety and mutual trust is applied to countries on the list. In the Germany example, combining Dublin transfer procedures with the admissibility procedure has the effect of accelerating the process of determining asylum claims to the detriment of claimants whose claims are not adequately examined for their substance. As conflicts and other situations around the world continue to produce large flows of asylum claimants and refugees, now more than ever, the effects of containment policies must be counteracted while maintaining due respect for the principle of non-refoulement . KEYWORDS: Common European Asylum System; containment theory; non-refoulement ; Dublin transfers; ‘safe’ third countries; responsibility-sharing; Refugee Convention. ii SUMMARY FOR LAY AUDIENCE This thesis examines an individual’s right not to be returned to places where they may be in danger of serious human rights violations (termed ‘ non-refoulement ’). The thesis argues that EU asylum practices can lead to a failure to observe this important right. As dire consequences can result if individuals are returned to places where they may face death, torture, or other cruel treatment, the European asylum system must comply with non-refoulement . However, EU countries use various tactics including legal measures to ‘contain’ asylum claimants and refugees to other countries, and to evade their responsibilities to observe non-refoulement under international and European law. These ‘containment’ strategies are demonstrated in two case study examples: the United Kingdom and Germany. In the first example, the United Kingdom returns asylum claimants and refugees back to transit countries where they did not claim asylum. This method of ‘containing’ asylum claimants and refugees effectively increases the chances of them being indirectly returned to face violations of human rights. In the second example, Germany returns these claimants and refugees through transfer processes back to another EU country by relying solely on guarantees from national governments. This effectively ‘contains’ the claimants and refugees outside of Germany, again increasing the risks of human rights violations. As violence and conflicts persist, this thesis contributes to existing literature by providing human rights law analysis with a unique lens of ‘containment’. Now more than ever, the human rights of those seeking refuge must be safeguarded against erosion. iii GLOSSARY OF KEY TERMS Accelerated Procedure A fast track procedure for unfounded asylum claims or where there are serious national security or public order concerns in the claim by introducing shorter, but reasonable time limits for certain procedural steps Area of Freedom, Security, Justice An area created by Article 67 TFEU which ensures the absence of internal border controls and which frames a common policy on asylum, immigration and external border control, based on solidary between Member States Asylum Procedures Directive A key CEAS directive which determines the common procedure for granting and withdrawing international protection Common European Asylum System A common European asylum policy aimed at enhancing efficiency and harmonizing asylum standards across the EU Diplomatic Assurances An undertaking from the receiving State to the sending State to the effect that the person being transferred will be treated in accordance with relevant international human rights standards Dublin III Regulation Mechanism and criteria for determining the Member State responsible for processing asylum applications Dublin System The Dublin III Regulation along with key directives of the CEAS: the Qualification Directive, Asylum Procedures Directive, and the Reception Conditions Directive Dublin Transfer Transfer of the claimant from one Member State to the Member State deemed responsible for examining the asylum application based on presumption of mutual trust EUNAVFOR MED EU Naval Force Mediterranean Eurodac Biometric database for fingerprint collection FRONTEX EU’s external border and coastguard agency Irregular Movement In the EU context, refers to accessing Member State territories to seek asylum through means other than at authorized checkpoints such as at border crossings iv Margin of Appreciation Deference given to Council of Europe Member States by the ECtHR in Member States’ interpretation of international law and ECHR law obligations Margin of Discretion Deference given to EU Member States by the Court of Justice of the EU, as distinguished from the ‘margin of appreciation’ Member State Responsible EU Member State deemed responsible for processing asylum applications pursuant to Dublin III Regulation Non-Entrée Non-admission policies which seek to deter claimants from reaching territory of States to access asylum Presumption of Mutual Trust The presumption that EU Member States all comply with their relevant international and EU law obligations Primacy of EU Law All EU law has absolute and unconditional precedence and should always be given precedence over all conflicting provisions of national law Primary Legislation A source of EU law at the top of the hierarchy which consists of EU treaties and general principles of EU law Principle of Mutual Recognition The recognition by each Member State of the decisions of courts from other Member States with minimum procedure and formality Qualification Directive A key CEAS directive which determines the minimum standards for the qualification of international protection for Third Country Nationals and stateless persons Reception Conditions Directive A key CEAS directive which determines the standards for reception of applicants for international protection Responsibility-Sharing A legal principle binding upon all EU Member States which requires them to implement EU policies by sharing the responsibility for the implementation of such policies between the Member States Safe Third Country A country which the applicant for international protection has passed through where they should have claimed for asylum but they did not. The onus is upon the claimant to prove on a rebuttable presumption that they do not have

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