Electronic Thesis and Dissertation Repository

Thesis Format

Monograph

Degree

Doctor of Philosophy

Program

Law

Collaborative Specialization

Transitional Justice and Post-Conflict Reconstruction

Supervisor

Oosterveld, Valerie L.

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.

Summary for Lay Audience

This thesis examines an individual’s right not to be returned to places where they may be in danger of serious human rights violations (termed ‘non-refoulement’). The thesis argues that EU asylum practices can lead to a failure to observe this important right. As dire consequences can result if individuals are returned to places where they may face death, torture, or other cruel treatment, the European asylum system must comply with non-refoulement.

However, EU countries use various tactics including legal measures to ‘contain’ asylum claimants and refugees to other countries, and to evade their responsibilities to observe non-refoulement under international and European law.

These ‘containment’ strategies are demonstrated in two case study examples: the United Kingdom and Germany. In the first example, the United Kingdom returns asylum claimants and refugees back to transit countries where they did not claim asylum. This method of ‘containing’ asylum claimants and refugees effectively increases the chances of them being indirectly returned to face violations of human rights.

In the second example, Germany returns these claimants and refugees through transfer processes back to another EU country by relying solely on guarantees from national governments. This effectively ‘contains’ the claimants and refugees outside of Germany, again increasing the risks of human rights violations.

As violence and conflicts persist, this thesis contributes to existing literature by providing human rights law analysis with a unique lens of ‘containment’. Now more than ever, the human rights of those seeking refuge must be safeguarded against erosion.

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