Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection

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Abstract
Refugees, while en route from their countries of origin to their ultimate destinations, typically pass through one or more ‘third countries’. When they reach their intended final destinations and apply for asylum, they are often returned to one of the third countries without substantive determinations of their claims. The destination country might reason either that the third country was a ‘safe third country’ from which the claimant should have requested protection, or that the third country was a ‘first country of asylum’, having already granted adequate protection. Either way, the returns have caused serious problems for the refugees, for the third countries, and for regional stability. The broad question is how much legal freedom refugees have to choose the countries that will decide their asylum claims. This article — a revised version of a UNHCR consultant's report — proposes criteria for determining when international law and sound policy permit returns to third countries. It argues, contrary to conventional wisdom, that the criteria for returning asylum-seekers to ‘safe third countries’ and to ‘first countries of asylum’ should be the same. In constructing these criteria, the article argues that various developments in international law now add up to a general ‘complicity principle’: no country may send any person to another country, knowing that the latter will violate rights which the sending country is itself obligated to respect. For purposes of that principle, the degree of certainty encompassed by the word ‘knowing’ may vary inversely with the importance of the right. After providing essential background information and examining secondary refugee movements in broader perspective, the article proposes two lists of ‘effective protection’ requirements for the return of refugee claimants to third countries — a list of minimum requirements of international law and a list of recommended best practice criteria.

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