12 December 2012

Syrian Refugees, Allocation of Responsibility and the Right to Choose: Beggars Can’t Be Choosers (or Can They?)

On 11 December 2012, the United Nations High Commissioner for Refugees (UNHCR) announced that there are more than half a million registered Syrian refugees. That number is climbing by the day, as more refugees flood into neighboring countries. In Turkey, for example, 136,319 refugees are living in 14 government-run camps. From there, many of them try to make it into Greece, the gateway to Europe, only to be returned to Turkey. This practice of sending refugees back is currently taking place covertly, but the European Union (EU) is in the process of negotiating a readmission agreement with Turkey.

Through the conclusion of readmission agreements between destination countries and transit countries, the latter undertake to readmit third country nationals, including refugees, into their territory. As such, the agreements are part of a wider phenomenon which I refer to as allocation of responsibility for processing a claim for protection. Such allocation of responsibility is premised on the idea that refugees do not get to choose their preferred destination. Refugees are the world’s supplicants – and ‘beggars can’t be choosers’. Whether refugees are indeed legally unable to be choosers is considered in this blog post. How much legal freedom, if any, do refugees have in choosing the country that will decide their claim for protection? And if refugees do have some element(s) of choice, how should this be reflected in the terms of the future EU-Turkey Readmission Agreement?

The right to choose has been the subject of some modest debate. Two diametrically opposed positions can be identified. James C. Hathaway, on one end of the spectrum, observes that states have the sovereign discretion to decide who obtains admission, subject only to international obligations. The quid pro quo of this discretion, he argues, is that refugees get to decide where to take their chances in applying for protection.[1] Kay Hailbronner, on the other end of the spectrum, opines that it is not the prerogative of refugees to pick and choose where to go. In his view, refugees are supposed to apply for protection in the first safe country they reach.[2] An adequate reading of the law may lie somewhere between those extremes.

The vantage point for an examination and analysis of the law is Article 31 of the Convention Relating to the Status of Refugees (1951 Convention). This article first provides that “States shall not impose penalties, on account of illegal entry or presence” on refugees “coming directly from a territory where their life or freedom was”. The criterion of ‘coming directly’ has been used to support the view that the 1951 Convention does not allow for choice on the part of refugees. However, Article 31 continues by recognizing that refugees may  have “good cause for their illegal entry or presence”. The criterion of ‘good cause’ is, in the words of Guy S. Goodwin Gill, “flexible enough to allow elements of individual cases to be taken into account”.[3] This points towards the existence of some degree of choice for refugees.

In order to solve this ambiguity, the precise meaning of the terms ‘coming directly’ and ‘good cause’ should, in line with the Vienna Convention on the Law of Treaties, be interpreted in the context and in the light of the object and purpose of the 1951 Convention. The primary aim of the 1951 Convention is to extend the protection of the international community to refugees and, as specified in the Preamble, to assure to “refugees the widest possible exercise of … fundamental rights and freedoms”. When applied to Article 31, this indicates that the provision was first and foremost meant to ensure that states will not refuse admission to refugees on the pretext that they had entered their territory without authorization. After all, this would have undermined the raison d’être of the 1951 Convention.

The main purpose of Article 31 is thus to prevent the imposition of penalties. This interpretation still leaves open the question whether states are permitted to send refugees back to a transit country, without refugees having any choice in the matter. However, in R v. Uxbridge Magistrates Court and Another, Ex parte Adimi, which covers one of the most thorough examinations of the scope of Article 31, this question was decisively answered by Lord Justice Brown. He rejects the argument that Article 31 allows refugees no choice as to where they should claim asylum. Instead, he contends that ‘some element of choice’ is indeed available to refugees and writes that:

[A]ny merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing.

The view taken by Lord Justice Brown in the Adimi case is supported by Justice Newman who, in the same case, considers that “as a result of the distinctive and differing state responses to requests for asylum … there exists a rational basis for exercising choice where to seek asylum”. In addition, in Charles Kofi Owusu Ansah v. Minister of Employment and Immigration, the Canadian Federal Court declared that, in certain circumstances, refugees may not need to apply for protection in transit countries before reaching Canada. The Court specified that language, family ties and cultural bonds are credible and sufficient reasons to account for a refugee’s decision to ask for protection in a country other than the one of first arrival.[4]

The case law on this topic, of which this blog post does not give an exhaustive account,[5] bears strong resemblance to the approach of the Executive Committee of the High Commissioner’s Programme (ExCom). ExCom is a body comprised of government representatives from 87 states to provide guidance and ensure consistency in applying the terms of the 1951 Convention (and its accompanying Protocol). To that effect, it periodically issues ‘Conclusions’ which are part of the ‘soft law’ body of international refugee law. In one of its early conclusions, ExCom gives some support to the idea of a limited choice for refugees. According to Conclusion No. 15 (1979), the existence of “a connection or close links with another State” should be observed when allocating the responsibility for determining a claim for protection.

The EU has adopted a near identical standard in the Procedures Directive. The Procedures Directive aims to harmonize procedural guarantees given during the asylum procedure and, in doing so, confirms certain basic procedural guarantees. However, EU member states may decide not to give (access to an) asylum (procedure) to refugees on the assumption that they can find protection in a ‘safe third country’ through which they transited prior to coming to the EU. This situation is dealt with under Article 27 of the Procedures Directive, which stipulates that, before member states may apply the safe third country concept, the competent authorities must first be satisfied that there is “a connection [with] the third country concerned on the basis of which it would be reasonable for that person to go to that country”.

These and other references in international legal materials to the connection that a refugee may have with a particular country point towards the existence of a limited right to choose for refugees. Refugees may have several reasons for preferring to apply for protection in one state over another. While some of these reasons have gained selective acknowledgment, such as the presence of kin or friends and language or cultural affinity, it remains to be determined which elements of choice fall under the legal freedom that refugees have in this respect. There is a chance for the future EU-Turkey Readmission Agreement to contribute to the development of the law by elaborating on the exact scope of a right to choose as the international community continues to look for a solution to the outflow of Syrian refugees.