Exodus after Conflict

Chapter 4
Exodus after Conflict

Satvinder Juss

Introduction

A decade ago world leaders at the 2005 UN World Summit endorsed the idea of ‘Responsibility to Protect’ as a restraint on state sovereignty. This was intended to curb a country’s tendency to mistreat its citizens. A state’s sovereignty was thus declared to be inseparable from its ‘responsibility to protect’ those on its territory. Sovereignty was not merely a form of control. There was a duty to protect those over whom sovereignty was exercised. But what about a state’s responsibility to others? What about its responsibility towards those, who although not on its territory, look to that state for protection? At first blush, a state would not have ‘responsibility’ for such people. They have no jurisdiction on them. But is this necessarily correct? If sovereignty can be exercised to exclude individuals, in need of protection, does it necessarily follow that such sovereignty can be exercised irresponsibly with all due disregard for human suffering? Surely not. And, if a state has contributed to a particular calamity (regional or international), such as by waging war, or by destabilizing another state such that the other state’s citizens were then forced to leave, what then? Surely, the principle of ‘responsibility to protect’ falls to be applied even more forcefully on the offending state. Further, if the international community has been culpably involved in such action then its ‘responsibility to protect’ is even more pronounced in such a situation.

To suggest otherwise is to suggest that they are rogue nations, not prepared to live in a community of nations, where each may act irresponsibly towards the other. The idea that a state cannot escape responsibility in these circumstances has recently been propounded by James Souter.¹ Two objectives of refugee law are already particularly well-known, namely, ‘as a response to a fundamental humanitarian imperative’ and ‘as an expression of moral condemnation of the persecutory or otherwise illegitimate actions of refugee-producing states’, which enjoyed its heyday during the Cold War. He argues for a third objective which also has an ‘important moral function: as a form of reparation for past injustice’. In his view, this ‘stems from a special obligation on the part of states to provide asylum to refugees for whose lack of state protection they are responsible, whether through their military interventions, support for oppressive regimes or imposition of damaging economic policies’. In this way, the institution of asylum can be used ‘as potentially providing a means by which states can rectify the harm they caused to individuals by turning them into refugees’.²

It is accordingly a paradox that while we are yet again readily prepared to go to war in Syria and Iraq, we are not prepared to admit refugees from those areas. Our pretext in Britain is that we are facing a battle of Britain,³ It is a truism, all too often overlooked, that wars produce refugees. We may watch dictatorships tumble, revolutions simmer, and the unfortunate ‘Arab Spring’ cruelly morph⁴ into something altogether more sinister as the rise of ISIS marches on unabated.⁵ Yet our refugee law is helplessly trapped, unable in this morass to provide any effective protection to those who most need it. Powerless to make sense of what unfolds before it, the Canadian government even more helplessly announces a closed door policy for Syrian refugees, so that ‘after three and a half years of bloody civil war in Syria, Canadian reaction to the conflict’s refugee crisis remains virtually inaudible, despite increasingly desperate pleas for help and a growing sense of urgency’.⁶ This is a denial of the humanitarian foundations of refugee law.⁷

The Preamble of the 1951 Refugee Convention is a sobering reminder of this reality when it states that the United Nations High Commissioner for Refugees (UNHCR) ‘is charged with the task of supervising international conventions providing for the protection of refugees’.⁸ That gives the Refugee Convention a clear ‘protection’ basis. It is significant too that the evident desire at the time, of preventing human rights violations, included also the objective of protecting the rights of refugees.⁹ The person who feared persecution based on one of the listed grounds in the Refugee Convention had the right to leave her country and find safety elsewhere under the adopted definitions.¹⁰ Yet, in the twenty-first century today there must be clear concerns about the extent to which the ‘protection’ basis of the Refugee Convention can be properly met. The situation in the Middle East today is a telling case in point.

In mid-2014, the United Nations Refugee Agency, the UNHCR, announced how ‘Syrians are now the world’s largest refugee population under UNHCR care, second only in number to the decades-long Palestinian crisis’. Indeed, ‘the Syria operation is now the largest in UNHCR’s 64-year history’. It is a catastrophe on an epic scale. According to the UN High Commissioner for Refugees, António Guterres, the Syrian crisis ‘has become the biggest humanitarian emergency of our era, yet the world is failing to meet the needs of refugees and the countries hosting them’. Whilst there was some international response, ‘the bitter truth is that it falls far short of what’s needed’. Why is this? One would have thought that recent developments in twentieth-century refugee law which recognize the persecution of those fleeing the barbarism of FGM,¹¹ the pursuit of gay and lesbian communities,¹² and the discrimination of women in societies world-wide,¹³ heralded the advent of a new age for refugee law. Such eye-catching forays, encapsulating as they do a fragment of the world’s refugee population, conveniently leave the vast swathe of oppressed humanity untouched. Real progress is delusional and refugee law today is an exercise in crisis management. Those fleeing war, famine, population control polices and environmental disasters, remain lost in the weft and warp of refugee law. Twentieth-century refugee law is very firmly grounded on self-interest pure and simple.

In his article, ‘Millions Uprooted: Saving Refugees and the Displaced’ the UN High Commissioner for Refugees, Antonio Guterres, had some years earlier argued for the establishment of a ‘co-operative legal and policy framework based on humanitarian principles that will ensure that people who have fled serious economic, social, or environmental crises in their own countries are not subsequently deported from the countries to which they have fled’.¹⁴ He had advocated, ‘temporary forms of protection and material assistance, at the least, should be provided to the most vulnerable among them’ and that ‘[p]eople who need international protection must have access to the territory of other states and be allowed to make their cases in fair and effective asylum procedures’. In his view, ‘[b]order controls should be designed to be sensitive to the rights and safety of refugees’. Antonio Guterres, when he wrote, was all too aware himself that ‘[t]he twenty-first century will be characterized by the mass movement of people being pushed and pulled within and beyond their borders by conflict, calamity, or opportunity’. He was aware that ‘[w]ar and human rights violations are already scattering millions across the world in search of safety’. He could see that ‘unresolved poverty, and enduring insecurity, is prompting many people to leave their homes’ and that ‘[a]t few times in history have so many people been on the move’.

In Syria, an already desperate situation was by mid-2014 progressively getting worse following recent upsurges in fighting. The front lines were shifting. New areas were emptying out. But refugee law was silent. One example was the recent arrivals to Jordan, who were running from attacks in the areas of Raqaa and Aleppo. It is in this context that the UNHCR reported how Syria’s intensifying refugee crisis had passed a record 3 million people. Conditions inside that country had reached horrifying levels. So, why shouldn’t any sane rational person seek to flee from such mayhem? And, why shouldn’t international law provide a mechanism for them to be able to do so legitimately? After all, the evidence showed that there were cities where populations had been surrounded. The people were going hungry. Civilians were being indiscriminately killed. In the words of the UNHCR,

Almost half of all Syrians have now been forced to abandon their homes and flee for their lives. One in every eight Syrians has fled across the border, fully a million more than a year ago. A further 6.5 million are displaced within Syria. Over half of those uprooted are children.¹⁵

Aid agencies were remarking on how increasing numbers of families were arriving in a shocking state, exhausted, scared and with their savings depleted. Most of them had been on the run for a year or more. This is a fact that most observers also forget, that when refugees flee they have been on the move for months, and sometimes even years. Only a couple years earlier in 2012,¹⁶ the UK reported on the plight of Afghan children and young males who had trekked bare foot through ice and snow – from Kabul through to Iran, Turkey, Greece, Macedonia, Serbia, Croatia, Slovenia and Italy – before arriving in France, before making their desperate claims for asylum.¹⁷ Many went onto the United Kingdom from there.¹⁸ These were, ‘among the world’s most vulnerable migrants. … in flight from violence or the aftershocks of violence that affect children in particularly harsh ways’ and it was noted how ‘those who turn up in Paris have spent up to a year on the road, on the same clandestine routes as adults, but at far greater risk’, and that ‘no one quite knows how many unaccompanied Afghan children have made it to Europe’ although in Paris they were the biggest nationality among the 1700 lone foreign minors in the care of the authorities.

In the Syrian case, refugees had been fleeing from village to village before taking the final decision to leave. Yet, precisely because of this, there were, according to the UNHCR, ‘worrying signs … that the journey out of Syria is becoming tougher, with many people forced to pay bribes at armed checkpoints proliferating along the borders’.¹⁹ Human smugglers were getting involved because ‘refugees crossing the desert into eastern Jordan are being forced to pay smugglers’ hefty sums (US$100/£60 a head or more) to take them to safety’.²⁰ Yet, the majority did not manage to venture far so that ‘most of the refugees remain in countries neighbouring Syria, with the highest concentrations in Lebanon (1.14 million), Jordan (608,000) and Turkey (815,000)’. The inevitable effect of this ‘led to an enormous strain on their economies, infrastructure and resources’. The victims of this scourge themselves did not fare any better because, ‘more than four in five refugees are struggling to make a living in urban areas, with 38 per cent living in sub-standard shelter’. It is unsurprising then that, ‘many newly arriving refugees say they only left Syria as a last resort’ and that ‘a growing number, including more than half of those coming to Lebanon, have moved at least once before fleeing, and one in 10 have moved more than three times’. In fact, from 19 September 2014, the Syrian refugee crisis worsened, with an unprecedented influx of more than 144,000 refugees²¹ crossing into Turkey,²² mainly ethnic Kurds fleeing militant threats to towns and villages in northern Syria. The UN Secretary-General called for a swift election of a new Lebanese president, underlining the urgent need to support Lebanon to cope with the overwhelming number of Syrian refugees.²³

What explains the lack of action by Western states to the unfolding refugee crisis in our midst? The answer lies in the very words used to justify the latest thrust to war in the Middle East in the words of Secretary of State for Defence, Michael Fallon, namely, that we are facing ‘a new Battle of Britain’. The conventional wisdom today is that we face decades of terror from an obscure, shapeless, omnipresent and fiendish force. There is no doubt, as Karen Armstrong has explained, that ‘IS [Islamic State] uses violence to achieve a single, limited and clearly defined objective that would be impossible without such slaughter’ so that given that ‘mass killing is a thoroughly modern phenomenon’ what we are witnessing ‘is another expression of the dark side of modernity’.²⁴ Yet, to view this carnage as a simple act of terrorism is reductionist. What is really happening in the Middle East is battle for the soul of Islam. Various warring Islamic groups are involved. This is the narrative of all normal historical conflicts in the world. Insurrections, political assassinations and civil wars all add up to make a new historical epoch.

For Secretary of State Michael Fallon to suggest that simply to wage war in a ‘new battle of Britain’ will eliminate the evil of IS is delusional. Yet, its implications are far-ranging for such policy sentiments impact on the true interpretation of international refugee law today: who should Western governments admit, and who should they exclude from sanctuary, as they continue their ‘war on terror’? Since Syria is a source of perceived terrorism, in much the same way as Afghanistan has been, refugee law is used as a tool of counter-insurgency to exclude as many people from that region as possible – not to admit them – on the assumption that their admission is a security risk to the receiving states. If this is so, it brings into question the principle of ‘Responsibility to Protect’ as a restraint on the sovereign state right to exclude refugees.

War Refugees in Conflict Situations

Wars create refugees. In 2012, two years before the UNHCR report on Syria in 2014, when the war in Afghanistan was at its high-point, it was Afghanistan which was ‘the largest producer of refugees in the world, both in absolute numbers and as a proportion of the national population’ largely because of ‘the general lack of security’ in that country’.²⁵ This was a situation exacerbated after 9/11, by the invasion of that country by NATO forces in a US-led alliance to preserve the USA as a hegemon state. When in the first major case regarding Afghan refugees in the UK, GS (Afghanistan),²⁶ the Upper Tribunal of the Immigration and Asylum Chamber, an administrative appellate tribunal determining immigration appeals, set out ‘to put this determination into context’,²⁷ it did so by its blunt assessment of how ‘[t]he current conflict was triggered by the US led invasion of Afghanistan in late 2001’ such that the present ‘phase of internal armed conflict has been ongoing since 2002’, wherein ‘Afghanistan has endured almost constant warfare since the Soviet invasion in 1979’. Another decision of the Upper Tribunal in 2012, AK (Afghanistan),²⁸ explained how,²⁹ ‘Afghanistan is not only war-stricken; it is riven by ethnic frictions, political factionalism, high levels of poverty, impunity, serious abuses of human rights by both state and non-state actors …’ and that it was trapped in a morass of, ‘ineffective governance, high levels of corruption, weak rule of law, an anaemic legal system, and a high risk of infiltration, corruption or subversion by insurgents, warlords and criminal groups’.³⁰ The same, as it now appears, is becoming the situation in Syria. Yet, under the Refugee Convention 1951, a person seeking to escape from this state of affairs is generally unable to claim refugee status. This is because he or she may not be able to show that they are individually at risk on account of what is a condition of generalized violence that is not specifically directed at him or her.

The United Nations High Commissioner for Refugees (UNHCR) officially refers to them as ‘war refugees’. Yet, despite the direct and unmistakable link between wars and refugees, the UNHCR itself recognizes that there is an uphill struggle in their recognition as ‘refugees’ in these circumstances. The UNHCR Handbook deals with such ‘War Refugees’ under the heading of ‘Special Cases’,³¹ thus indicating their inherent conceptual difficulty for refugee lawyers. The general position is confirmed in paragraph 164, which explains that, ‘Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol’.³² This is immediately then qualified by paragraph 165 of the Handbook which follows on to say:

However, foreign invasion or occupation of all or part of a country can result – and occasionally has resulted – in persecution for one or more of the reasons enumerated in the 1951 Convention. In such cases, refugee status will depend upon whether the applicant is able to show that he has a ‘well-founded fear of being persecuted’ in the occupied territory and, in addition upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during armed conflict, and whether such protection can be considered to be effective. (Emphases added.)

This came in the form of ‘subsidiary’ protection pursuant to Article 2 of Directive 2004/83/EC (the Qualification Directive),³³ which acts as a surrogate to refugee status. To be eligible for ‘subsidiary’ protection, such a person will have to demonstrate a plausible risk of ‘serious harm’ to him or her in a certain particularized context. Article 15 defines the context of the serious harm in a way that is particularly relevant to the plight of ‘war refugees’ as, ‘Serious and individual threat to a civilian life or person by reason of indiscriminate violence in situations of international or internal armed conflict’.³⁴In QD (Iraq), Sedley LJ explained the importance of such a law in that, ‘the Directive brings together classical Geneva refugee status with what it calls subsidiary protection status’. Both the ‘non-refoulement’ obligations with respect to those who cannot establish an affirmative right to asylum, ‘assumed by all EU member states as part of the Council of Europe’ as well as ‘the humanitarian practices adopted by many EU states, towards individuals who manifestly need protection’ would be safeguarded, because they are ‘imperilled by endemic violence’.³⁵ The result is that such persons are required to be granted subsidiary protection status,³⁶ unless an internal relocation alternative is open to them,³⁷ or until the risk in the country of origin ceases.³⁸

The reality is that the application of Article 15(c) has proved quite challenging. The powerful interests of states – especially those that have waged war – are not easy to reconcile with the meagre interests of an individual, who may count for little or nothing in the grand order of things. So, to qualify for protection an applicant has to show a risk that was ‘individual’ to him or her. Ironically, however, the ‘risk’ has to be from an ‘indiscriminate’ source that is not individuated. In the words of Jean-Francois Durieux, ‘the nonsensical wording of Article 15(c)’³⁹ makes it hard to conceive of ‘any rational way of resolving the contradictions inherent in the wording of Article 15(c)’ thereby making it practicably impossible to make sense of ‘this bizarre provision’.⁴⁰ Eminent judges have echoed these sentiments. In the rueful remarks of Sedley LJ in QD (Iraq), Article 15(c): ‘both on its own and even more so when married with article 2(e), is highly problematical – in large part, … because of poor drafting’. There are three immediate reasons for this, namely, ‘(1) the ostensibly cumulative but logically intractable test of “real risk” of a “threat”; (2) the contradictory postulation of an “individual threat” to life or safety from “indiscriminate violence”; (3) the requirement of “armed conflict” when there may well be only one source of indiscriminate violence’.⁴¹ Durieux said of Article 15(c), that the way around this conundrum is to focus on: ‘the reality of contemporary refugee flows – civilians fleeing the indiscriminate effects of generalised violence’. This should make it clear to us precisely ‘which threatened rights and interests participants in the regime feel duty-bound to protect in the face of such situations and which threats are serious enough to warrant, at a minimum, non-refoulement’,⁴² This author argued that the terminology of Article 15(c) with respect to the concept of ‘armed conflict’ should be considered sui generis with its own meaning.⁴³ This has fortunately recently been confirmed by the European Court of Justice when it observed:

the answer to the question referred is that, on a proper construction of Article 15(c) of Directive 2004/83, it must be acknowledged that an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.⁴⁴

It remains to be seen how effectively this will be applied in future cases. But it is surely helpful that for the time being the court has explained that, ‘it is not necessary, when considering an application for subsidiary protection, to carry out a specific assessment of the intensity of such confrontations in order to determine, separately from the appraisal of the resulting level of violence, whether the condition relating to armed conflict has been met’.⁴⁵ In fact, ‘the finding that there is an armed conflict must not be made conditional upon the armed forces involved having a certain level of organisation or upon the conflict lasting for a specific length of time’.⁴⁶ What the court has done is to explain how those fleeing indiscriminate violence may find sanctuary. It has not set out to provide a legal definition of ‘armed conflict’. That concept remains sui generis to the framework that provides for it.

So, what threatened rights should the international community protect under Article 15(c)? The answer to this question has been provided by the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 17 December 2010.⁴⁷ One recent case on Afghanistan said of the Guidelines that, ‘[t]hey include references to a considerable body of empirical data about conditions in Afghanistan, as well as UNHCR’s evaluation of it in the form of guidelines’,⁴⁸ which a court or a tribunal of inquiry will not ordinarily have access to. The kinds of risks that emanate in Afghanistan, according to the Guidelines, are of two types. The first deals with persons who have a specific risk profile. The position of the UNHCR here is that they ‘require a particularly careful examination of possible risks’. It is not difficult to see why. They include all the usual suspect classes of women, ethnic groups and people suspected of supporting the wrong side.⁴⁹ A more recent UNHCR report, Safe at Last: Law and Practice in Selected EU Member States with respect to Asylum Seekers Fleeing Indiscriminate Violence (UNHCR, July 2011),⁵⁰ is also one where the authors note in relation to Afghanistan, that, ‘… it was UNHCR’s view at the time of the research in 2010 that there was a worsening security situation in certain parts of the country’ so that, ‘[t]he violence continued to cause significant population displacement and high numbers of civilian casualties, in particular due to suicide attacks and the use of improvised explosive devises’.⁵¹

In fact, the tribunal in AK (Afghanistan),⁵² in 2012 described that country as ‘war stricken’.⁵³ Indeed, the situation there had so escalated that, ‘by virtue of the involvement since November 2001 of U.S. and other international forces, what is now known as “the Long War” also has an international dimension’.⁵⁴ The Upper Tribunal recognized now ‘the global resonance of this conflict’. Yet, despite this, it declined to take these clear findings of fact to their logical conclusion and to hold that anyone having to flee from the conditions of ‘indiscriminate violence’ now appertaining in Afghanistan can plausibly be regarded as falling within the protection mechanisms of Article 15(c). Instead, the Upper Tribunal held that, ‘it is as well that we emphasise at the outset that our task as judges in this case is a limited one’.⁵⁵ It focused on the fact that, ‘there are return and reintegration packages available’ to Kabul, and whereas, ‘[i]t would be unwise to exaggerate the importance of such packages: they are chiefly designed to cushion against immediate travails on return’ so that, ‘by assisting with skills training and inquiries related to employment opportunities, they clearly do help position returnees advantageously …’.⁵⁶

This was despite the fact that the appellant was, ‘considered as a single young male returning on his own without any family support’, and yet it was held that ‘he would be able to live in Kabul in safety and without undue hardship’.⁵⁷ Once again, the interests of hegemonic states was being preserved. Yet, the Guidelines here specifically set out to endorse and elaborate upon the difficult concept of ‘War Refugees’ as specially set out in the UNHCR Handbook at paragraphs 164 and 165. In fact, in another decision by the Upper Tribunal, HM and Others⁵⁸ it was even said that, ‘[t]hough very considerable weight is almost always to be attached to UNHCR guidelines on risk categories in particular countries, it is not accepted that departure from the guidelines should only take place for a cogent and identified reason’. This is remarkable given that the Guidelines very often alone help to put flesh on the bare-bones of the hapless and ill-drafted provisions of Article 15 of the Qualification Directive.

Burden-Sharing and Dublin II

We often forget that everyone has the right to claim asylum, wherever that may be, and this principle which was first enshrined in the United Nations Convention Relating to the Status of Refugees 1951,⁵⁹ created to guarantee people in Europe those rights after the atrocities of the Second World War, and extended thereafter by the 1967 Protocol to people in other countries around the world, has been replicated in one international instrument after another since then. Until conflict and persecution no longer exist, those rights must be upheld. Those fleeing to the borders of Europe from war-torn and strife-ridden countries of Afghanistan, Iraq, Syria and the regions of the Middle East and Africa are often fleeing conditions of real persecution and ill-treatment. They are in search of a ‘safe country’. Not all the countries of Europe are safe for all purposes and for all people. Burdens between the states of Europe have to be shared because potential asylum-seekers cannot all go to one region or one country so as to impose a disproportionate burden there. So what they are required to do through international arrangements between European states is to apply for asylum at the first ‘safe country’ they come to, and all countries of Europe are deemed to be safe, whether or not they are. Yet the ‘safe country’ notion is a legal fiction. It is nothing more than a legal mantra adopted in the Common European Asylum System. The effect is often to deny sanctuary to those who are clearly in need of it. So, how does the system work?

We may begin by recognizing that international cooperation has long been recognized as a necessary prerequisite for the satisfactory solution to the plight of refugees. This is clear from the Preamble to the 1951 Refugee Convention.⁶⁰Yet, its actual implementation remains one of the most controversial issues in refugee protection. The difficulties in implementation arise from managing ‘burden-sharing’ in a fair and sensitive way. The Dublin II system attempts to do this. This was explained by Mr Justice Cranston in Saeedi, in terms that, ‘[t]he Dublin Regulation (EC) No 343/2003 is the cornerstone of the Common European Asylum System. It establishes a system of determining responsibility, according to specific criteria, for examining an asylum claim lodged in a Member State or in Iceland, Norway or Switzerland, which all participate in the Dublin system’. As he explained,

[t]he Regulation aims at ensuring that each claim is examined by one Member State as ‘on the one hand, to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum application and, on the other, to prevent abuse of asylum procedure in the form of multiple applications for asylum submitted by the same person in several Member States with the sole aim of extending his/her stay in the Member States’.⁶¹

It remains the case nevertheless that the most sophisticated mechanism developed by states to embody this principle is currently contained in the so-called Dublin II Regulation and remains the same under Dublin III which came into force on 19 July 2013,⁶² though the cases discussed in this chapter naturally are all concerned with the Dublin II Regulation.⁶³ However, from its inception this system has been subject to scrutiny by domestic as well as international courts. Nadine El-Nany⁶⁴ has offered a powerful critique of Dublin II. She has explained how the central, binding EU instrument for the implementation of the ‘safe country’ concept is the Dublin Regulation,⁶⁵ incorporating the Dublin Convention,⁶⁶ agreed at Schengen, into EU legislation, and it is the pivotal binding EU instrument. The Dublin Convention states that responsibility lies with the first Member State with which the asylum applicant establishes contact. This may be by the issue of a transit visa, the legal presence of a close family member, or in the absence of these, the first physical contact with the territory.⁶⁷ States Parties are required to readmit individuals transferred on the basis of the Dublin regime, whilst respecting the principle of mutual recognition with regard to the application of its rules. But as Lavenex has concluded, European cooperation is founded on ‘the assumption of common standards of refugee protection’⁶⁸ and Costello has referred to ‘the most worrying’ element of the application of the ‘safe country of origin’ concept being the ensuing decline in procedural safeguards.⁶⁹ As we have seen confirmed in the cases discussed above, claims originating from countries designated as ‘safe’ are treated as ‘manifestly unfounded’ or inadmissible.⁷⁰ The only consensus among all actors involved seems to be its unsatisfactory performance and its continuous need for reform.

There is recognition of the failure of the ‘safe country’ notion in that the EU has now successfully negotiated a recast Dublin II Regulation that needs to provide an appropriate response to Member States’ obligations of protection in the context of international cooperation, as interpreted by the European Court of Human Rights in the M.S.S. v. Belgium and Greece case (judgment of 21 January 2011) and by the Court of Justice of the European Union in the N.S. v Secretary of State for the Home Department (C-411/10) case (judgment of 21 December 2011), which are discussed below.

Nevertheless, problems have arisen in relation to refoulement of refugees from Italy, Greece and Hungary. The treatment of Dublin returnees in Hungary gives rise to serious concerns (the non-refoulement principle is not duly observed, returnees are immediately issued an expulsion order and routinely detained without considering their individual circumstances and so on). The Hungarian Helsinki Committee has prepared a short information note in order to raise awareness about the seriousness of the situation and to urge national Dublin units and courts to examine carefully the conditions returnees would face in Hungary before actually deciding on the return.⁷¹ The current situation leads to an improper application of the Dublin Regulation and to the serious violation of asylum-seekers’ human rights.

It is of course right that in an ideal world, people would be able to access protection in any country of their choosing. But the reality, as enshrined in Dublin II, is far removed from this (and remains the same under Dublin III which came into force on 19 July 2013⁷²). What is needed therefore is a common European asylum system, which (i) does not define adequate protection by reference to those countries that have managed no more than reach minimum standards, but (ii) ensure that adequate protection is defined in terms of where people can access fair, humane and effective asylum systems, and (iii) are able to do so in whichever European country they choose to access protection. Until such time, however, what the courts should do is ensure that the relatively few that do manage to get to a country in Europe, where they can secure safety and security, are given an impartial and fair hearing on the merits of their claim, so that those who need protection are allowed to stay and are not subject to refoulement. The need for this principle is clear from the cases arising before the courts.

Nasseri,⁷³ concerned an Afghan national who crossed into Greece in December 2004 and claimed asylum, but when that application was rejected on 1 April 2005, he entered the UK on 5 September 2005 concealed under a lorry. When detected he again claimed asylum.⁷⁴ Greece agreed to take him back, following a request from the UK government, for his asylum claim to be determined there. The applicant resisted on grounds that there was a real risk that, if sent to Greece, he would be returned to Afghanistan to face inhuman or degrading treatment, contrary to Article 3 ECHR.⁷⁵ Lord Hoffmann highlighted that the duty to investigate possible claims of human rights infringements is part and parcel of the protection of a person’s rights and that the Court will conduct an investigation which amounts to ‘a rigorous scrutiny of the claim’ such that ‘unless a Member State has done so, it runs the risk of being held in breach’.⁷⁶ Despite that there is, however, no guidance at the moment as to when or if the duty arises, and the nature of the duty, where the subject is the potential breach of fundamental EU law rights; this is a matter in issue between the parties. This is the main question that will be discussed in this chapter.

In EM