An Unjust "Vision" for Europe's RefugeesHuman Rights Watch Commentary on the U.K.'s "New Vision" Proposal for the Establishment of Refugee Processing Centers Abroad
Human Rights Watch Backgrounder, June 17, 2003
III. Asylum Seekers and Refugees Will be Subjected to Ineffective Protection in Processing Centers
The U.K. proposal claims to "deal more successfully with irregular migrants within their regions of origin."128 The proposal contemplates returning asylum seekers to processing centers either along their transit routes or in another place closer to their home country, although it remains uncertain "whether protection in the regions should and could reach a level in which people could be moved from Europe to protected areas for processing."129 Given prevailing human rights conditions (discussed in Part II, above) in all of the countries proposed for the U.K. plan, sending asylum seekers and refugees to regional processing centers contravenes the evolving norm of "effective protection"130 identified by UNHCR's ExCom,131 and recently elaborated in an expert roundtable held in Lisbon, Portugal in 2002.132 The European Commission Communication on the U.K. plan notes that the "key legal question seems to be what the exact definition of `effective protection' is."133 The European Commission Communication goes on to state that:
Human Rights Watch agrees with the European Commission Communication's' setting forth of the minimum core of effective protection. Moreover, we would add that any state that violates the basic civil and political rights of refugees, such as the rights to freedom from arbitrary deprivation of liberty or property, should not be classed as offering effective protection. And it should be noted that effective protection does not remain static over time: without the prospect of local integration - that is, without a framework in which a refugee can enjoy basic rights such as the right to work and education - a refugee's international protection becomes ineffective over time.135
Where a state permanently denies a refugee access to any form of legal status, it violates its Refugee Convention obligations,136 even if it refrains from refoulement. For longstanding refugees, such a state cannot be said to offer effective protection. The basis for this position is the guidance of UNHCR in a number of public statements and Executive Committee Conclusions,137 which in turn are based upon a full reading of the Refugee Convention rather than one that focuses only on non-refoulement (Article 33). For example, UNHCR stated in 1994, "To survive in the country of asylum, the refugee...needs to have some means of subsistence, as well as shelter, health care and other basic necessities...Beyond what is required for immediate survival, refugees need respect for the other fundamental human rights to which all individuals are entitled without discrimination."138
The determination of whether effective protection exists should also focus on the living environment in a third country, including both the prevailing conditions at the time of return as well as the long-term prospects for continued effective protection. The inquiry should also extend beyond threats to life or liberty to include the provision or availability of basic subsistence needs. Refugees should have access to employment, housing, health care, education, and other basic necessities that will not be denied as a result of either official or de facto discrimination on ethnic, gender, religious, or immigration status grounds. UNHCR stated in 1994,
The inclusion of fundamental human rights and subsistence considerations finds further support in UNHCR's statement that refugees should not be returned to third countries unless they will be treated "in accordance with recognized basic human standards until a durable solution is found for them."140 All non-nationals should be afforded, in accordance with article 11 of the International Covenant on Economic, Social and Cultural Rights, "an adequate standard of living for himself and his family, including adequate food, clothing and housing."141 This conception of effective protection is already applied by the U.K. when considering whether or not to transfer asylum seekers to third countries (discussed below). The Committee on Economic, Social, and Cultural Rights has clearly asserted that no group, including non-nationals regardless of their immigration status, may be denied the core content of this right. In more developed countries the obligation to fulfill commitments under the Covenant is particularly strong.142
The European Commission Communication on the U.K. proposal assumes that persons who have already transited through or otherwise stayed in a country hosting a processing center could be returned to that country, as long as "effective protection" could be offered to them there.143 Consideration of a third country's respect for human rights and provision of access to subsistence needs is required under U.K. law144 and that of other industrialized states.145 However, as noted above, the countries currently under consideration for the proposal may not be able to ensure the effective protection of refugees. Since the U.K.'s existing legal requirements regarding third-country transfers and the best practices of other states are quite rigorous, implementation of the "new vision" proposal would constitute a serious retreat from existing policies.
The Third Country Unit (TCU) of the U.K.'s Immigration Service is responsible for determining whether a third country is indeed safe, or whether the applicant would face persecution upon return to a third country. The TCU looks at three criteria in making its determination: 1) whether the applicant is a national or citizen of the country of destination; 2) whether the applicant's life and liberty would be threatened in that country by reason of race, religion, nationality, membership of a particular social group, or political opinion; and 3) whether the government of that country would send the applicant to another country other than in accordance with the Refugee Convention.146 Any threat to the applicant's life and liberty in a third country by reason of race, religion, nationality, membership of a particular social group, or political opinion will be found to constitute persecution by the TCU. In addition, the United Kingdom will consider most serious human rights violations to constitute persecution.147 The United Kingdom has also extended its consideration of human rights violations to include human rights abuses by non-state actors.148
In connection with decisions to transfer asylum seekers to third countries, the United Kingdom also requires consideration of human rights directly affecting subsistence and quality of life, including privacy, access to public employment without discrimination, access to normally available services such as food, clothing, housing, medical care, social security, education, the right to work, and equal protection of the law.149 TCU also seeks to avoid fragmenting nuclear families as a result of a transfer to a third country.150
Other developed countries, such as the United States and Canada take a similar approach under their domestic laws. In the United States a grant of asylum to refugees who traveled through a third country prior to their arrival in the United States is barred only where the refugee was firmly resettled in another country.151 Presently under these regulations, firm resettlement generally occurs when an alien has received "an offer of permanent resident status, citizenship, or some other type of permanent resettlement" by another country prior to arrival in the United States.152
Canada has adopted an interpretation of effective protection that requires comprehensive consideration of all relevant circumstances in third countries. Canadian courts consider the quality and duration of time spent in the third country,153 and whether the individual can access status determination procedures.154 In addition, the court considers the claimant's subjective perception of his or her level of safety, as well as objective factors, including whether the claimant will enjoy genuine protection. Access for refugees to employment, education, and social services such as health care;155 as well as the location of other family members, language abilities of the claimant,156 and whether the refugee would be able to settle in the third country are all considered.157
130 UNHCR first used the term "effective protection" when describing refugees who leave a country of first asylum, where they have obtained "effective protection," for economic or other non-compelling reasons. UNHCR uses the term to refer not only to protection against refoulement in the country of first asylum, but also to whether the refugee was treated "in accordance with recognized basic human standards until a durable solution is found there."
132 UNHCR, Migration Policy Institute, Summary Conclusions on the Concept of "Effective Protection" in the Context of Secondary Movements of Refugees and Asylum-Seekers, Lisbon, Portugal, December 9-10, 2002.
135 Excom Conclusion No. 58 (XL) - 1989 refers not only to protection against refoulement in the country of first asylum, but also to whether the refugee was treated "in accordance with recognized basic human standards until a durable solution is found there." The meaning of "recognized basic human standards" however is not defined, and there is no reference to a situation in which the prospect of legal integration is specifically prohibited by national law. At a minimum, these "recognized basic human standards" might refer only to threats to life, liberty and security of the person. An expansive interpretation, on the other hand, might include the rights to work, education, religious freedom, access to courts and freedom of movement.
136 The applicability of certain rights in the Refugee Convention has been read according to a sliding scale, in which certain rights apply to all refugees by virtue of their "simple presence," additional rights to those with "lawful presence," and a further subset to those who are "staying lawfully." See Guy S. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford, 1996), p.307ff.
142 See International Covenant on Economic, Social and Cultural Rights, art. 2 (stating that "[e]ach State Party to the present Covenant undertakes to take steps. . .to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.") (emphasis added).
143 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, June 3, 2003 (COM(2003) 315 final), p. 5. See also p. 6, posing the question "in how far would it be possible, according to the 1951 Refugee Convention, EU legislation or national legislation, to transfer persons to the envisaged [processing centers], who have not transited through or otherwise stayed in such [centers]/countries?").
144 Such inquiries into the subsistence needs of asylum seekers in third countries are somewhat surprising since the U.K. has tried several times in recent years to roll back the provision of basic subsistence to asylum seekers within its own territory.
145 Countries such as Australia, which regard movements of a refugee through an intermediary country (or "secondary movements") as a presumptive bar to asylum, fail to properly consider the conditions of effective protection listed above, and thus maximize the circumstances under which a refugee is returned to a third country where he or she is not truly safe. The existence of a global political climate characterized by xenophobia and hostility towards migrants and asylum seekers has presented Australia and others with an opportunity to export this negative model to individual countries, most recently the U.K., and lobby for the international acceptance of this flawed approach.
147 The human rights violations considered by the United Kingdom are divided into two categories. The violations in the first category are deemed to always constitute persecution, and include unjustifiable attack on life and limb, slavery, torture, and cruel, inhuman, or degrading punishment or treatment. Cruel, inhuman, or degrading punishment or treatment includes acts such as unjustifiable killing, maiming, physical or psychological torture, rape, and other serious sexual violence. See U.K. Asylum Policy Instructions, Ch. 1, Sec. 2, para. 8.2. The second category includes human rights violations that might be found to constitute persecution. Restrictions on the freedom of thought, conscience and religion, freedom from arbitrary arrest and detention, and freedom of expression, assembly, and association represent several types of prohibited acts and policies. See U.K. Asylum Policy Instructions, Ch. 1, Sec. 2, para. 8.3.
151 See 8 U.S.C. § 1158(b)(2)(A)(vi). Even before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the United States Supreme Court, in Rosenberg v. Woo, held that firm resettlement constituted a factor in evaluating asylum petitions. Rosenberg v. Woo, 402 U.S. 49 (1971). The underlying rationale to denying asylum in instances of firm resettlement was that persons firmly resettled elsewhere "are by definition no longer subject to persecution." Yang v. INS, 79 F.3d 932, 939 (9th Cir. 1996). The Rosenberg court, however, noted that refugees who flee persecution in successive steps are not disqualified from gaining asylum; rather, this policy is merely aimed at those refugees "who either never aimed to reach these shores or have long since abandoned that aim." 402 U.S. at 57, n.6.
152 See 8 C.F.R. § 208.15 (2000). The government bears the initial burden of establishing that a third country issued to the alien an offer of some type of official status permitting the alien to reside in that country on a permanent basis. In the absence of direct evidence to prove the existence of a formal government offer of permanent resettlement, courts may look at circumstantial evidence of a government-based offer including the length of an alien's stay in a third country, the alien's intent to remain in the country, and the extent of the social and economic ties developed by the alien, as circumstantial evidence of the existence of a government-issued offer. See, e.g., Abdille v. Ashcroft, 242 F.3d 477, 486-87 (3d Cir. 2001)(holding the petitioner could not be deemed firmly resettled solely on the basis of a two-year grant of asylum by South Africa); Abdalla v. INS, 43 F.3d 1397, 1399 (10th Cir. 1994)(holding residence/visa permit tantamount to a government offer for permanent residence where after twenty-year stay, petitioner had longstanding and significant family ties in third country prior to arrival in United States).
154 Williams v. S.S.C. F.C.T.D. IMM 4244-94 (Reed, June 30, 1995). While this factor is not as significant when the stay is temporary, it does become more important where the stay is longer and/or when the refugee initiated a claim in a third country and abandoned it to file a claim in Canada.