Jenny Poon, Ph.D. Candidate; Faculty of Law, Western University, Canada.

I.   Introduction

According to official United Nations High Commissioner for Refugees (UNHCR) data, the total number of forcibly displaced persons in the world today is 65.6 million, while the total number of refugees is 22.5 million. The total number of registered Syrian refugees is 5.3 million.[1] For the Mediterranean Sea route, there were over 100,000 sea arrivals to Italy, while the dead and missing amounted to almost 3,000 in 2017.[2] These statistics show that, as a result of the critical situation that is arising due to the increasing number of refugees and asylum claimants, there is great need now to enhance international protection for these individuals.

This blog post argues that the non-refoulement principle is at risk of being eroded by ‘safe’ third country agreements concluded by the EU or by its Member States, and critically examines the two latest developments in this area, namely: the EU-Turkey Deal and the Italy-Libya Memorandum of Understanding (MOU).

II.   Non-Refoulement and third country agreements

Often described as the cornerstone of international refugee law protection, the principle of non-refoulement prohibits the removal of asylum claimants or refugees to territories where their lives or freedom would be threatened, on account of their race, religion, nationality, membership of a particular social group or political opinion.[3] Under international human rights law, it prohibits the return of anyone to torture or ill-treatment.[4] The right to seek asylum has little meaning without corresponding protection from refoulement. In other words, where an asylum claimant was granted access to territory or to asylum procedures, there must be a corresponding guarantee that the individual will not be returned to persecution, death or torture. The importance of safeguarding the non-refoulement principle is more relevant now than ever before. Both the EU-Turkey Deal and the Libya-Italy MOU examples below illustrate how this principle is currently at risk of becoming eroded.

The EU-Turkey Deal

Under the EU-Turkey Deal, for every Syrian Turkey admits from the Greek islands, the EU has agreed to take back a Syrian from Turkey (the 1:1 scheme).[5] This Deal essentially sends back asylum claimants from the Greek islands to Turkey without first examining the merits of their claims. The aim of the Deal is to tackle irregular migration and smuggling activities into and across Europe.

There are three non-refoulement relevant concerns relating to the EU-Turkey Deal. First, the EU-Turkey Deal violates both international and European law on collective expulsion of asylum claimants and refugees. Under international law, a State violates the prohibition against collective expulsion when it expels aliens lawfully in its territory.[6] Under European law, any State considering expulsion of a group of non-nationals is required to consider, with due diligence and in good faith, the full range of individual circumstances that may prevent against the expulsion of each particular individual in the group.[7] The risk of refoulement is one such consideration among others.[8]

       Second, the deal works on the assumption that Turkey is a ‘safe’ third country within the meaning of Article 38(1) of the Asylum Procedures Directive (recast).[9] However, Turkey is not a member of the EU, and thus is not subjected to the safeguards put into place by EU law, namely the safeguards against refoulement as specified under Article 38(1)(c) of the Asylum Procedures Directive.[10] Therefore, the EU may be in breach of indirect refoulement when it sends an asylum claimant or refugee to a country deemed ‘safe’ but where it knew or ought to have known that proper asylum procedures will not be conducted to process the claimant.[11]

       Third, Turkey is known to lack proper asylum procedures. For example, claimants originating from Syria are accorded only temporary protection under the Turkish Temporary Protection Regulation.[12] This temporary protection regime means that applications for international protection will be suspended so that Syrian refugees under this scheme are precluded from accessing important protections granted under the Refugee Convention, such as the ability to access the labour market, housing and education.[13]

       Both Amnesty International and Human Rights Watch share these concerns. New findings from Amnesty International conclude that asylum claimants and refugees in Turkey are ‘at greater risk of being returned to their countries of origin’.[14] Greece and the EU should not be sending asylum claimants and refugees back to a country where they cannot get effective protection. Human Rights Watch is concerned that Turkey maintains a geographical limitation to its accession to the Refugee Convention that excludes non-Europeans from refugee status.[15] According to Human Rights Watch, non-Syrian asylum claimants in Turkey including Afghans and Iraqis are ineligible for temporary protection or basic state services.[16] These and other concerns illustrate how the EU-Turkey Deal can potentially permit violations of non-refoulement by allowing the EU to send claimants to a third country deemed ‘safe’ where onward refoulement is possible.

The Italy-Libya Memorandum of Understanding

The Italy-Libya Memorandum of Understanding (MOU) was on February 2, 2017.[17] The aim of the MOU was to ‘ensure the reduction of illegal migratory flows, the fight against human trafficking and fuel smuggling’.[18] Libya has a sustained record of violating the rights of migrants, as per the reports of nongovernmental organizations and the United Nations.[19] Academic commentary has also supported the idea that forced returns supported by the MOU may inevitably result in a ‘high record of refoulement or chain-refoulement put in practice by Libyan authorities’.[20]

       The MOU between Libya and Italy therefore raises several serious concerns regarding both countries’ compliance with international human rights law norms including the principle of non-refoulement. As in the case of the EU-Turkey Deal, there are three concerns with regards to the treatment of non-refoulement obligations by both Libya and Italy, which will be examined below.

  1. Collective Expulsion of Aliens

The cooperation between Italy and Libya in border control measures in the MOU may lead to violations of the principle of non-refoulement through collective expulsion of asylum claimants and refugees, where these individuals did not receive adequate examination of their asylum applications. For example, there is a risk that when the merits of asylum applications are not examined before expelling individuals that it creates a heightened risk of sending them to face threats to their lives or freedom.

       Collective expulsion of aliens is prohibited by Article 4 Protocol 4 of the European Convention on Human Rights (ECHR) and Article 19(1) of the EU Charter of Fundamental Rights, as well as relevant international human rights law such as under Article 7(1) of the Draft Articles on Expulsion of Aliens of the International Law Commission.[21] For these reasons, Italy could be held accountable for violations of these provisions through its pushback operations and the transfer of irregular migrants to Libya on the high seas.[22] Hirsi Jamaa demonstrates that non-refoulement is breached indirectly where collective expulsions take place without proper examination of asylum applications, heightening the chances of asylum claimants and refugees being returned to territories where their lives or freedom would be threatened.[23]

  • Reliance on Diplomatic Assurances

Another concern relating to the violation of the non-refoulement principle is the diplomatic assurances from Libya to Italy, that the asylum claimants and refugees received will be accorded access to proper asylum procedures in Libyan territory.

       According to the UNHCR in its guidance note, any diplomatic assurances from Libya must be ‘assessed in light of [the host State’s] obligations under international and regional refugee and human rights law as well as customary international law’.[24] The ECtHR held in Saadi v. United Kingdom that the sending State is required ‘to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time’.[25]

       The Committee Against Torture, in its General Comment No. 4 also reiterated the importance of safeguarding the principle of non-refoulement by not permitting diplomatic assurances to be used as a loophole to circumvent the principle.[26] In combination with UNHCR’s guidance note, therefore, treaty-monitoring bodies have indicated their concerns with the misuse of diplomatic assurances under international law. Reliance upon diplomatic assurances from Libya to Italy could violate non-refoulement where Italy knew or ought to have known of the deficient asylum system in place in Libya.

  • Presumption of Libya as a ‘Safe’ Third Country

A third concern stems from the presumption that Libya is a ‘safe’ third country pursuant to Article 38(1)(c) of the Asylum Procedures Directive.[27] A ‘safe’ third country presumption presupposes the ‘safe’ third country, a non-EU country, is a safe destination for asylum claimants and refugees – locations where EU countries may send these individuals.

       In addition, the ‘safe’ third country presumption has no legal basis under international law.[28] This assertion is also confirmed in a legal briefing paper written by the European Council on Refugees and Exiles, a consortium of European nongovernmental organizations mandated to protect and advance the rights of asylum claimants and refugees.[29] Presuming Libya to be a ‘safe’ third country, while in practice, no proper asylum procedures are in place, would mean a heightened potential of asylum claimants with legitimate claims to be rejected, leading to increased risk of refoulement.[30]

III. Concluding Remarks

The above has highlighted some problems regarding the EU ‘safe’ third country concept, and the potential use of this concept by EU Member States to circumvent their international law obligations including non-refoulement protection. It has been suggested that both the EU-Turkey Deal and the Italy-Libya MOU have the potential to erode the principle of non-refoulement as a result.

While the future of non-refoulement protection in the region may remain uncertain, more needs to be done in order to safeguard the rights and freedoms of vulnerable individuals – especially for those who would risk their lives to make perilous journeys across the Mediterranean Sea in search of refuge.

 [1] United Nations High Commissioner for Refugees, “Figures at a Glance”, 2017, http://www.unhcr.org.

[2] United Nations High Commissioner for Refugees, “Operational Portal: Refugee Situations – Mediterranean Situation”, 2017, http://www.unhcr.org.

[3] Art. 33(1) of the Convention Relating to the Status of Refugees, 189 UNTS 137, http://www.unhcr.org (Refugee Convention).

[4] Art. 3 of the Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, http://www.refworld.org (CAT); Arts 6 and 7 of the International Covenant on Civil and Political Rights, 999 UNTS 171, http://www.refworld.org.

[5] While the General Court of the EU has declared that it lacks jurisdiction to hear and to determine actions brought by asylum claimants against the EU-Turkey statement because the statement is a political one signed between the Member States of the EU and Turkey, rather than one which is signed by the EU as an international organization, this article takes the position that the EU-Turkey statement is indeed a ‘deal’ concluded between the EU, as an international organization, and Turkey. Henceforth, the EU-Turkey statement is legally-binding and by concluding such a deal, the EU is itself responsible or at the very least complicit for any forcible returns of asylum claimants in violation of non-refoulement under the deal. This article proceeds by taking this position; For more on the General Court of EU’s decision, see: General Court of EU, “Order of the General Court”, 27 February 2017, http://www.curia.europa.eu; For more on the debate, see: Gloria Fernández Arribas, “The EU-Turkey Statement, the Treaty-Making Process and Competent Organs. Is the Statement an International Agreement?”(2017) 2(1) European Papers (Forum) 303-309.

[6] In international refugee law, there is a prohibition against expelling refugees lawfully in the territory of a State, see: Art. 32, Refugee Convention; In international human rights law, the International Covenant on Civil and Political Rights does not have an explicit prohibition against collective expulsion, however, the Human Rights Committee has interpreted Art. 13 to mean that the right of an individual to submit reasons against expulsions would make ‘mass or collective expulsions incompatible with article 13’, see: OHCHR Discussion Paper, “Expulsion of Aliens in International Human Rights Law”, 3.1, http://www.ohchr.org.

[7] Intervener Brief filed on behalf of the United Nations High Commissioner for Human Rights (Hirsi et al v. Italy), para 8, http://www.ohchr.org.

[8] ibid.

[9] See: Art. 38(1), Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), OJ L-180/60, 29 June 2013 (Asylum Procedures Directive).

[10] ibid; These procedural safeguards include, inter alia, that ‘a person seeking international protection will be treated in accordance with the following principles in the third country concerned’: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) there is no risk of serious harm as defined in Directive 2011/95/EU; (c) the principle of non-refoulement in accordance with the Geneva Convention is respected; (d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

[11] For more on indirect refoulement and how the EU-Turkey Deal may violate international law, see: Jenny Poon, “EU-Turkey Deal: Violation of, or Consistency with, International Law?”(2016) 3(1) European Papers (Forum) 1195-1203.

[12] National Legislative Bodies of Turkey, “Temporary Protection Regulation”, 22 October 2014, Art. 11, where temporary protection accorded may be terminated, but where there are no provisions that oblige the Turkish official to release reasons for decisions on such termination, http://www.refworld.org.

[13] Arts. 17, 21 and 22, Refugee Convention.

[14] Amnesty International, “Greece: Court decisions pave way for first forcible returns of asylum-seekers under EU-Turkey Deal”, 22 September 2017, http://www.amnesty.org.

[15] ibid.

[16] Human Rights Watch, “Greece: Highest Court Fails Asylum Seekers, 27 September 2017; See also: Human Rights Watch, Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers, 2009”, http://www.hrw.org.

[17] Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic (English translated version), http://www.eumigrationlawblog.eu (MOU).

[18] ibid at recital 11.

[19] See: United Nations, Office of the High Commissioner for Human Rights, “‘Detained and Dehumanized’: Report on Human Rights Abuses Against Migrants in Libya”, December 2016; Amnesty International, “Refugees and Migrants Fleeing Sexual Violence, Abuse and Exploitation in Libya”, July 2016, http://www.amnesty.org; Human Rights Watch, “Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers”, 2009, http://www.hrw.org.

[20] Anja Palm, “The Italy-Libya Memorandum of Understanding: The baseline of a policy approach aimed at closing all doors to Europe?”, 22 October 2017, http://www.eumigrationlawblog.eu.

[21] See: Art. 4 Protocol 4, European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, http://www.refworld.org (ECHR); Art. 19(1), Charter of Fundamental Rights of the European Union, 2012/C-326/02, http://www.refworld.org (EU Charter); Art. 7(1), International Law Commission, Draft Articles on the Expulsion of Aliens, http://www.refworld.org.

[22] For instance, Italy may be held to be internationally responsible for complicity with Libya for gross human rights violations against migrants and for aiding and abetting Libya, see: Giuseppe Pascale, “Is Italy internationally responsible for the gross human rights violations against migrants in Libya?” (2019) 59 Questions of International Law 35-58, 54-58.

[23] Hirsi Jamaa and Others v. Italy, Application No. 27765/09 (ECHR, 23 February 2012), http://www.asylumlawdatabase.eu.

[24] United Nations High Commissioner for Refugees, “UNHCR Note on Diplomatic Assurances and International Refugee Protection”, para 27, http://www.unhcr.org.

[25] Saadi v. United Kingdom, Application No. 13229/03 (ECHR, 29 January 2008), http://www.asylumlawdatabase.eu.

[26] Committee Against Torture, “General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22”(Advance Unedited Version), 9 February 2018, para 20, http://www.ohchr.org.

[27] See: Art.38(1)(c), Asylum Procedures Directive.

[28] For a summary of the debate, see: Violeta Moreno-Lax, “The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties”in Guy S Goodwin-Gill and Philippe Weckel (eds), Migration & Refugee Protection in the 21st Century: Legal Aspects – The Hague Academy of International Law Centre for Research (Martinus Nijhoff, 2015) 665-721.

[29] European Council on Refugees and Exiles, “‘Safe Countries of Origin’: A Safe Concept? AIDA Legal Briefing No. 3”, September 2015, http://www.ecre.org.

[30] For example, Human Rights Watch reported that ‘immigration detention in Libya can be indefinite because the law does not specify a maximum term, providing only that detention be followed by deportation. There are no formal procedures in place allowing detainees access to a lawyer or any opportunity to challenge the decision to detain them’, see: Human Rights Watch, “No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya”, 2018, http://www.hrw.org.