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State Discretion in EU Refugee Status Determination Processes:
Violation or Adherence to Non-Refoulement?
ABSTRACT: Recent developments in Europe have brought the mass influx of refugees into European Union (EU) member states into sharp relief. The crisis in Syria has led to the displacement of hundreds if not thousands of refugees into and across Europe, resulting in a strain to the domestic systems of various EU member states. These asylum claimants flee from Syria to neighbouring EU member states in order to seek refuge from persecution. The process by which a state determines whether an asylum claimant should be admitted as a refugee in its territory is largely discretionary. The state’s non-refoulement obligations are triggered when its sovereign discretion is exercised to determine whether an asylum claimant is admitted as refugee in its territory. Now more than ever, clarity in the law is needed with regards to what constitutes state discretion and the boundaries with which states may exercise their sovereign prerogative to determine refugee status.
KEY WORDS:
Non-refoulement, Dublin System, state discretion, margin of appreciation, asylum claimant
Word Count: 11,979
INTRODUCTION
Recent developments in Europe have brought the mass influx of refugees into European Union (EU) member states into sharp relief. The crisis in Syria has led to the displacement of hundreds if not thousands of refugeesinto and across Europe, resulting in a strain to the domestic systems of various EU member states. These asylum claimants flee from Syria to neighbouring EU member states in order to seek refuge from persecution. The process by which a state determines whether an asylum claimant should be admitted as a refugee in its territory is largely discretionary. The state’s non-refoulement obligations are triggered when its sovereign discretion is exercised over an asylum claimant to determine whether to admit him or her into its territory, as soon as the state is deemed to have effective authority and control over the asylum claimant.[1] Now more than ever, clarity in the law is needed with regards to what constitutes state discretion and the boundaries with which states may exercise their sovereign prerogative to determine refugee status.
The principle of non-refoulement is a central tenet in international refugee law. This principle is not only codified in various international instruments, but has also entered customary international law and is widelyregarded as a jus cogens norm.[2] This principle is also enshrined in various regional instruments including theEuropean Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and adopted in domestic legislation such as the EU Directive 2011/95/EU.[3]The prohibition of refoulement should ideally guide the state in asylum procedures and refugee status determination by restricting the exercise of state discretion to the extent that the state needs to comply with the principle. However, in reality, the mere prohibition of refoulement without mechanisms of enforcement does not necessarily, in every case, prevent the state from acting ultra vires the margin of appreciation, leading to the lack of consistent safeguards against refoulement.[4]Therefore, this paper will argue that international courts and tribunals need to play a bigger role in overseeing the process of adherence to the principle against refoulementby clarifying the law on margin of appreciation.
Under international law, state discretion plays a major role in determining whether an asylum claimant is admitted into the state as a result of refugee status determination processes. States exercise their sovereign prerogative when they decide the admission criteria and the protection mechanisms upon which the asylum claimant’s rights will be safeguarded and to fulfill their obligations under international law.This paper will argue that states have used the doctrine of margin of appreciation as an excuse to overstate their sovereign prerogative in their application and interpretation of asylum claims procedure obligations under international law, leading to violation of non-refoulement. While on one hand, states exercise their sovereignty freely when they interpret and act in accordance with their international law obligations, on the other hand, the principle of non-refoulement is widely determined to be a jus cogens norm, is non-derogable, and therefore require states to make way for and show deference to these international standards.
The aim of this paper is to examine whether the principle of non-refoulement has been violated or adhered to when states exercise their discretion in processing asylum claims. This paper argues that the principle of non-refoulement is violated when states actultra vires their margin of appreciation, by removing procedural safeguards, creating inconsistent interpretations, as well as deferring to state interests when determining refugee status. This paper begins by examining the key definitions of non-refoulement, state discretion, and asylum claims procedure under international law. Next, the paper will discuss how a wide margin of appreciation permits refoulement by removing procedural safeguards, creating inconsistent interpretations, and placing state interests above the interests of asylum claimants. Finally, the paper concludes with some recommendations on how to resolve a wide margin of appreciation including exploring the implications of each recommendation on refoulement.
PART A KEY DEFINITIONS
1.0KEY DEFINITIONS
The next section explores the key definitions discussed in this paper, including what is non-refoulement, state discretion (or margin of appreciation), and an explanation of refugee status determination under international and EU law.
1.1Principle of Non-Refoulement
The principle of non-refoulement is a central tenet of international refugee law. There is international human rights law or international refugee law-based non-refoulement. Non-refoulement based on international refugee law is codified in the Convention Relating to the Status of Refugees(Refugee Convention), while non-refoulement based on international human rights law has been extended to cover the right to life (article 6) and the prohibition against torture, or other cruel, inhuman or degrading treatment or punishment (article 7) underthe Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT).[5]When read in conjunction with General Comment No 31 of the Human Rights Council, non-refoulement based on international human rights law is also found in the International Covenant on Civil and Political Rights(ICCPR),which obliges states “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm”.[6]This paper will not be discussing non-refoulement based on international human rights law but will instead focus upon international refugee law’s definition of non-refoulement.
The principle of non-refoulement is the right of an asylum claimant not to be returned back to their country of origin where they will face persecution on any of the five Refugee Convention grounds (direct refoulement).[7]Returning an asylum claimant back to the first recipient state in the context of the EU Common European Asylum System (CEAS), which is the standards by which EU member states establish and maintain their criteria and procedures when examining asylum applications,where he or she is unlikely to be adequately processed also constitutes indirect refoulement.[8] The principle of non-refoulement is non-derogable,and has entered customary international law, which makes the principle binding upon all states and cannot be set aside or suspended, even upon express consent of states.[9] Further, non-refoulement is binding on all states regardless of whether they are contracting parties to the Refugee Convention.[10]
Non-refoulement applies also to those who have not been formally recognized as refugees under domestic implementation of the principle.[11] In other words, the principle of non-refoulement applies also to those seeking asylum owing to a “well-founded fear of being persecuted”.[12]Further,non-refoulement is applicable not only to deportation, but also to “any form of forcible removal, including […] expulsion, extradition, informal transfer or ‘renditions’, and non-admission at the border”.[13]The scope ratione loci of a state’s obligation to non-refoulement is determined by the state’s effective authority and control over the individual being contemplated, and not whether the individual contemplated is within the territory of the state.[14] The idea that a state’s non-refoulement obligations do not have territorial restrictions is also evident in various international law instruments.[15]The scope and obligations under non-refoulement are especially relevant to a state’s exercise of discretion when processing asylum applications.
1.2State Discretion
There is no ascertained definition of state discretion. However, state discretion is reflected in the doctrine of margin of appreciation, which remains an unsettled area of the law.[16]There are two fundamental principles or elements that comprise the doctrine of margin of appreciation:
a)Judicial Deference –When national authorities are granted deferenceby the courts when they use their discretion to carry out duties under international law;
b)Normative Flexibility – When national authorities reach different interpretive conclusions on the same international norm in question.[17]
The doctrine of margin of appreciation is not unlimited.[18] Decisions of national authorities of states are still subjected to review by international courts and tribunals, and states are expected to exercise their margin of appreciation out of good faith.[19]The doctrine of margin of appreciation is not codified in international instruments, but rather, the source of the doctrine is inherent in the jurisdiction of international courts.[20]
The idea of state discretion is tied hand-in-hand with state sovereignty and legitimacy. For instance, in the EU context, state sovereignty necessarily entails a particular deference from the European Court of Human Rights (ECtHR) when it comes to adjudication of cases involving national interests. EU member states are given a degree of deference (or a margin of appreciation) by the ECtHR to balance these state interests against individual rights.[21]However, it is not the ECtHR’s role to substitute its own views over the views of the EU member state.[22]The principle of proportionality is also in place to safeguard against EU member states acting ultra vires to the margin of appreciation accorded, and to ensure that EU member states do not go beyond what is necessary to achieve their objectives in the implementation and enforcement of their measures.[23]Further, the principle of proportionality is a “yardstick” for determining whether the EU member state has overstepped the bounds of its discretion.[24] While safeguards such as the principle of proportionality are in place to prevent states from acting ultra vires the margin of appreciation, these safeguards are not sufficient to prevent states from exercising their sovereign prerogative overly wide in a bid to establish legitimacy in the world stage or to protect national interests, often at the expense of asylum claimants being sent back to their country of origin to face persecution.
1.3Refugee Status Determination under International Law
For the purpose of this paper, refugee status determination is the process by which states exercise their sovereign prerogative to either accept or reject the application of the asylum claimant to be admitted as refugee in the territory of the examining state. The Refugee Convention does not provide for a standard refugee status determination procedure or standards in assessing these claims. Instead, theRefugee Convention codifies persecution,minimum standards of protection which state parties are obliged to follow, and a general standard of treatment expected of state parties onthe reception of asylum claimants.[25] Article 7 of the Refugee Convention imposes an obligation on state parties to the Refugee Convention to treat refugees equally with “aliens”.[26] Further, refugees are to be accorded rights and benefits in accordance with the principle of reciprocity.[27]
Where the hard, black-letter law does not provide a clear standard for refugee status determination procedures, soft law may assist in interpreting any ambiguities. For instance, the United Nations High Commissioner for Refugees (UNHCR) has published guidelines on the procedures and criteria for determining refugee status (Guidelines),considered “soft law”,asa source of factors on the definition of “refugee” based on state practice over 25 years.[28]Despite being “soft law” the Guidelines have been considered authoritative by states.[29]
1.4Refugee Status Determination under EU Law
Under EU law, the Dublin System determines the member state responsible for processing the asylum application.[30] The EU acquis applies when the asylum claimant arrives at the border of the EU member state, which includes arriving through EU member state territorial waters or through transit zones.[31]In the EU refugee status determination procedure, the asylum official first determines which category the applicant for international protection falls under, such as whether he or she is a minor and / or has family member(s) in another EU member state.[32] Next, the asylum official considers whether the applicant has entered the EU irregularly or regularly, if the asylum claimant has no family members or, in the case of minors, no siblings or relatives are present, in other EU member states. Also, in certain EU member states, asylum officials will also determine if the criteria for safe third country pursuant to the Asylum Procedures Directive applies.[33] Where the criteria for safe third country does not apply, the asylum official will consider granting subsidiary protection pursuant to the Qualification Directive, and also determine whether humanitarian and compassionate grounds apply, for example, so that the asylum claimant may be brought together with other family members, relatives, or other family relations.[34]
PART BSTATE DISCRETION
The next section explores how a wide margin of appreciation permits refoulement by removing procedural safeguards, creating inconsistent interpretations, and placing state interests above the interests of the asylum claimant.
2.0WIDE MARGIN OF APPRECIATION PERMITSREFOULEMENTBY REMOVING PROCEDURAL SAFEGUARDS
2.1Wide margin of appreciation permits bias in processing asylum claims
States exercise their discretion when they determine which asylum applications to accept and which to reject. In the EU context, EU member states are not only required to actintra vires the margin of appreciation, but are also required by the principle of the right of good administrationto safeguard procedural protection for asylum claimants.The principle of the right of good administration encompasses both objective impartiality and subjective impartiality.[35]Objective impartiality requires the exclusion of any bias on the part of the institution concerned,whereas subjective impartiality requires that no member of the EU institution concerned may show bias or personal prejudice.[36]The EU institution must also conduct an administrative investigation to adequately determine the matter in question.[37]
EU member states are given deference by courts through the margin of appreciation to enact domestic laws in compliance with their EU and international law obligations. EU member states are also bound by the EU Charter to act impartially and to exclude any biases when they consider asylum applications.[38]The problem arises when EU member states permit bias to dictate or inform the exercise of discretion to accept or reject asylum applications. For example, an EU member state can act ultra vires the margin of appreciation accorded to it by the ECtHR when it decides not to process an asylum application and bases that decision solely on prima facie facts, without first conducting a full administrative investigation.[39]When processing asylum applications with bias, the asylum official is not properly investigating the merits of the asylum application. Rather, the asylum official is taking into account irrelevant factors when deciding whether to accept or reject the particular asylum claimant. Relying on biased information to inform the decision to process asylum applications has also been held to be in contravention of the duty to act impartially in the case of OS v. Ministry of Interior.[40]In OS, in deciding whether to admit the asylum claimant as refugee in its territory, the Ministry of Interior based its decision on a biased country of origin report.[41] Having based its decision on a report that was political and that was not an accurate assessment of Turkey at the time, the Ministry of Interior has exercised bias in its decision-making. As this case shows, having a wide margin of appreciation allows the state to exercise its discretion to process asylum claims at the expense of the asylum claimant. The display of bias in the exercise of discretion when processing asylum applications results in a rejection of the asylum application and the refoulement of the asylum claimant back to persecution.
Another example can be taken from the case of Agiza v. Sweden,which concerns the expulsion of an asylum claimant on the grounds of involvement in suspected terrorist activities.[42] The Committee Against Torture held that Sweden was in violation of Article 3 of CAT when it unilaterality decided to expel an asylum claimant to Egypt, when it knew or ought to have known of the consistent and widespread use of torture of detainees in Egypt.[43] Sending the asylum claimant to Egypt would be a direct violation of his rights against refoulement. The Committee Against Torture also held that Sweden was in breach of its procedural obligations under Article 3 of CAT to provide an effective, independent, and impartial review of the expulsion decision.[44]Accordingly, a failure to exercise discretion impartially by a state authority in decision-making may increase the likelihood of refoulement of the asylum claimant back to persecution, which, in some cases, would mean being sent back to torture or cruel, inhuman or degrading treatment or punishment.
2.2Wide margin of appreciation permits decisions without reasons
Asylum claimants are more likely to be refouled where reasons for decisions that are made in processing their claims were not provided. Not releasing reasons for decisions that are made on asylum claims makesrefoulement of the asylum claimantback to persecutionmore likely when asylum claimants are less likely to have the recourse to appeal the decision not knowing the case against them.[45] Further, asylum claimants are less likely to challenge the grounds upon which the decision is based when they do not know what those grounds are. As a result, asylum claimants are left with no recourse, which increases the likelihood of them being refouled back to their country of origin to face persecution, when there is a higher chance of their application being rejected. As an example, an Austrian constitutional court held that the asylum court rejecting the asylum application failed to provide reasons as to why it assumed the claimant lacked credibility.[46] This lack of reasoning in its decision to reject the claimant’s application was overturned by the Austrian constitutional court, and the asylum court was held to have acted arbitrarily by failing to provide reasons.[47]