Safeguarding the Principle of Non-Refoulement in Europe: Counteracting Containment Policies in the Common European Asylum System
Abstract
This thesis examines the interpretation and application of the principle of non-refoulement within the Common European Asylum System (CEAS), a system designed to enhance the fair-sharing of responsibilities among European Union (EU) Member States and to enhance harmonizatio*n on the application of EU law. It argues that the laws and policies of the CEAS have led to an increased potential to violate non-refoulement. While the norm of non-refoulement itself is defined in a robust manner in both international and European law, the actual practice of that law is far from compliant with minimal standards.
The thesis begins by explaining the norm of non-refoulement and situates it within both international and European law. It then discusses how, through the lens of containment theory, the EU is effectively using the laws and policies of the CEAS to deter, deflect, and contain asylum claimants and refugees away from the EU and to other third countries.
Containment is a type of control theory which is derived from spatial and human geography and applied to law in the migration context. Defined as the EU’s use of legal measures to restrict, regulate, and control the mobility and immobility of migrants, the ‘containment’ of asylum claimants and refugees within the CEAS is demonstrated through the case studies of the United Kingdom (UK) and Germany. These containment policies are designed to shift the EU’s responsibility for processing asylum applications elsewhere - outside of the EU, to third countries deemed ‘safe’ and, in other instances, to another Member State that is assumed to be in compliance with relevant international and European law obligations.
In the case study examples, both the UK and Germany’s practices of ‘safe’ third country and Dublin transfers evidence containment policies, which heighten the potential of breaching non-refoulement. In the UK example, the use of ‘safe’ third country concepts demonstrate that the UK does not examine the individualized risks to asylum applications before sending claimants back to third countries through which they have passed and that are deemed ‘safe’. The use of ‘safe’ third country lists further heightens the potential for the principle of non-refoulement to be breached when a blanket presumption of safety and mutual trust is applied to countries on the list. In the Germany example, combining Dublin transfer procedures with the admissibility procedure has the effect of accelerating the process of determining asylum claims to the detriment of claimants whose claims are not adequately examined for their substance.
As conflicts and other situations around the world continue to produce large flows of asylum claimants and refugees, now more than ever, the effects of containment policies must be counteracted while maintaining due respect for the principle of non-refoulement.