Blog post by Dr Nafees Ahmad (South Asian University)*
Ever since the Taliban captured power in Afghanistan in August 2021, people from all sections of the Afghan society started fleeing the country. Initially, European Union (EU) countries have been sympathetic. Still, the recent wave of Afghan refugees posed new challenges to the EU border control mechanism and its ability to deal with the fresh exodus of refugees at its borders. French President, Emmanuel Macron, stated that ‘the destabilization of Afghanistan also risks irregular migratory flows towards Europe. We must anticipate and safeguard ourselves against major irregular migratory flows that jeopardize those who exploit them and feed trafficking of all kinds. Europe alone cannot bear the consequences of the current situation (sic).’ Whereas the ex-German Chancellor, Angela Merkel, who was the architect of the 2015 open-doors policy that allowed around 1 million asylum-seekers in Europe, cautioned that ‘we cannot solve all of these problems by taking everyone in (sic)’ and advocated the political negotiations to settle the ‘people can live as peacefully as possible in the country (sic).’ On the other hand, the Greece Minister of Immigration and Asylum, Notis Mitarakis, inaugurated the facilities for the accommodation of immigrants in Samos’ and other camps and warned about plans to bring tougher measures on ‘migration, with closed camps, new asylum laws and tighter border controls. But he refuted the allegations of migrant pushbacks, stating that Greece has acted within the law (sic)’ and Minister vowed to stop the new wave of Afghan refugees. Turkish President has also endorsed the policy statement of Mitarakis while expressing Turkey’s inability to accommodate additional refugee exodus and tightened entry restrictions at the border for the potential Afghan asylum-seekers. The instant piece tries to examine the future of non-refoulement in Europe in the wake of emerging asylum restrictionism for refugees.
In the latter half of the 20th Century, an individual emerged as a subject of international law and achieved inviolability of dignity, integrity, and ubiquity under the International Human Rights Law (IHRL) framework. In this context, the principle of non-refoulement has also emerged as an independent, inalienable, and indispensable framework juxtaposed with customary international law (CIL). This framework guarantees a safety valve to shield vulnerabilities of refugees and their persecution in the countries of origin. Over the years, the principle of non-refoulement has established itself as the human rights Charter of Protection of RAMS (Refugees, Asylum-seekers, Migrants, Stateless).
Therefore, such unilateral declarations precipitate worries about imminent violations of States’ international human rights law obligations to allow future asylum-seekers in Europe. However, the majority of States perceived the principle of non-refoulement obligation as a violation of their sovereignty contrary to Article 14 of the Universal Declaration of Human Rights (UDHR), Article 33 (1) of the 1951 UN Convention relating to the Status of Refugees (UNCSR) and Article 3 of UN Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Nevertheless, the principle of non-refoulement has been unequivocally recognized in refugee jurisprudence of municipal legal systems and States’ practices under international law.
Consequently, the interpretation and construction of non-refoulement provisions indicate that all geopolitical entities should extend shelter to RAMS in their territories pending the conclusive disposal of their asylum applications and refugee status determination (RSD) claims. Precisely speaking, States’ human rights obligation to provide asylum comes from the principle of non-refoulement framework. Further, the liberal construction of Article 33 (1) of the UNCSR and its inherent semantics recognize that the asylum restrictionism policy at the border violates the ambit of non-refoulement framework. In the same way, the Inter-American System of Human Rights emphasized that the principle of non-refoulement mandates that refugees or RAMS cannot be expelled, denied, or deprived of their right to asylum without duly vetting and supplying the appropriate and sufficient grounds of rejection of their individual and group RSD claims. The Committee on the Child’s Rights categorically established the relationship between protection under non-refoulement and access to the territory.
Likewise, the European Court of Human Rights (ECtHR), in the case of Sharifi and Others v. Italy and Greece (21 October 2014), indicated that the provisions, of EU law along with the Schengen Borders Code and Directive (2013/32/EU), obviously hold onto the principle of non-refoulement, as envisioned by the European Convention of Human Rights (ECHR), and is also applicable to people who are subjected to border checks before being admitted to the territory of one of the EU Member States. Further, such provisions primarily provide RAMS pragmatic access to genuine processes to review their applications for RSD claims and international protection. Consequently, the ECtHR in the case of MK and Others v. Poland (14 December 2020) has observed that the principle of non-refoulement gives rise to a human rights obligation incommensurate with Article 3 of the ECHR that allows entry to refugees into EU jurisdictions and ECtHR further held the repeated refusal to accept asylum applications amounted to collective expulsion.
Asylum Restrictionism Policy
The human rights obligations of EU States to allow potential asylum-seekers have been deep-rooted through the principle of non-refoulement jurisprudence stemming from ECtHR adjudications. However, EU States advocate copious and capricious restrictions regarding the field of non-refoulement and its implementation at the EU borders. Some EU leaders defend asylum restrictionism policy while contesting the admission claims of Afghan refugees and beleaguering Afghanistan as it is not one of the neighbouring countries of EU States. Such imperceptive and insensitive advocacy stems from the literal interpretation of the UNCSR provisions, which prevented States from pushing back RAMS to their homelands of persecution. Moreover, it is a misleading argument that RAMS must seek refuge first in the countries adjacent to their homelands. The administrative measures applied to borders (land, territorial waters, airports, transit areas, and high seas) of neighbouring countries must allow entry and refuge to RAMS while complying with the non-refoulement framework obligation. Despite everything, if the UNCSR has imposed asylum restrictions, EU countries must admit potential RAMS to their territories under the IHRL provisions involving non-refoulement protections. Moreover, the UNCSR does not prescribe geographical closeness, political propinquity, or racial contiguity, or any other categorizations for sheltering and protecting refugees. It envisioned only the refugee protection without distinction, and denial of the same will amount to persecution, torture, inhuman or degrading treatment of RAMS.
Recently, many EU states have opposed the new admission of asylum-seekers from Afghanistan to their territories despite having already admitted many asylum-seekers in past years. Turkey has constructed a border wall with Iran to stop the new refugee influx fleeing the Taliban regime. Such restrictionism policy and futile EU measures cannot be justified on the anvil of IHRL provisions, non-refoulement framework, CIL, and international law. Therefore, the ECtHR has observed in the case of MSS v. Belgium and Greece (21 January 2011) that ‘the states that form the international borders of the EU are currently enduring significant problems in dealing with the mounting influx of asylum-seekers and migrants. The Court does not underrate the liability and stresses this situation cast upon the concerned EU States, which are greater in the current context of economic crisis. It is specifically aware of the problems involved in the admission of asylum-seekers and migrants upon their arrival at prominent European international airports and of the disproportionate influx of asylum-seekers when measured up to the volumes of some of those EU states. However, considering the unqualified character of Article 3 of the European Convention on Human Rights, a State cannot liberate itself from its non-refoulement obligations. Thus, this adjudication stipulates that the geographical location of the EU States and their inadequate economic resources are not the tangible grounds for denying protection to Afghan refugees. However, some EU leaders advocate the invocation of exception clauses of non-refoulement under Article 33 (2) of the UNCSR to exclude terrorists from the States’ obligation to provide sanctuary to all refugees. A book called accessing asylum in Europe examined the efficacy of extraterritorial border controls and refugee rights under EU Law and underscored the reasonable grounds necessary to ensure the safety of RAMS and the security of the refugee-hosting State.
It is evidently put forward that Inter-state cooperation could be an efficient method to enforce the non-refoulement obligations of the EU States. To achieve inter-state cooperation, I perceive refugee protection rationality under Article 31 (1) of the UNCSR that requires a pragmatic interpretation of the text while appreciating the UNCSR’s drafters’ holistic intentions in the light of and its travaux préparatoires. Fundamentally, the UNCSR’s drafters intended to avoid a situation of legal oscillation between RAMS to seek international protection and their incapacity to depart to their homeland due to persecution. Therefore, the EU States have to evolve a balance between the non-penalisation clause and non-refoulement obligations as both are inherently interconnected consistent with UNCSR’s travaux préparatoires. Even the ECtHR rightly underscored that refugees do not qualify for refugee protection in Europe by claiming the risk of mistreatment in the country of origin. To deal with such types of risk, the refugee sending state must examine the credentials of individual refugees for his accessibility to appropriate RSD procedures in the State of return upon non-admission. Further, protections against forced deportation and inhuman or degrading treatment present in that State must also be vetted. If such conditions are satisfied, then non-admission shall be legal under the non-refoulement framework. Therefore, EU States have to increase the threshold of their commitment of responsibility-sharing beyond the 2015 stipulations for potential asylum-seekers from Afghanistan. At the same time, the rejection of Afghan refugees must be consistent with non-derogable principles of non-refoulement framework. However, I perceive that inter-state cooperation backed by responsibility sharing as envisaged under the 2018 UN Global Compact could be a viable way ahead.
* Ph.D. (International Refugee Law and Human Right), LL.M. (International Law), Author is an Associate Professor at the Faculty of Legal Studies, South Asian University, New Delhi. Contact at: firstname.lastname@example.org Dr. Nafees Ahmad https://orcid.org/0000-0003-1791-3060
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