The Law and Practice of the Refugee Deals in Europe and Abroad

https://doi.org/10.63189/MSFV3459

1. Introduction

The aim of this blog post is to highlight the fact that refugee deals based on the transfer of refugees to a third country are not effective tools for dealing with the migration crisis, which has never stopped and is unlikely to. Since the dawn of humankind, the people of various countries have been migrating as a result of searching for better living conditions, and it cannot be assumed that this will ever change. Moreover, we are currently facing many of the consequences of climate change, which make some parts of the earth uninhabitable.

The ineffectiveness of migration agreements is confirmed by the fact that almost every refugee deal to date has been terminated. This may be due to unfavourable rights and obligations on one or both sides of the deal (e.g. the EU–Turkey deal). Another reason may be the financial difficulty of maintaining relations between the parties of the deal and the social pressures due to widespread human rights violations caused by processes based on refugee deals. Alternatively, the transfer of refugees may not even take place at all due to conflicts between the provisions of a refugee deal and the obligations of the transferring state as declared by an international judicial body (e.g. the UK–Rwanda deal).

2. The phenomenon of migration

To understand migration, we need to first understand the push and pull factors. A push factor is a reason why people leave their country of origin and a pull factor is a reason why they move to a particular country.[1] It is also important to perceive the interconnection of the two factors. When the push factor is represented by persecution or war, the pull factor would be the proximity of the first safe country where the person may find protection. When the push factor consists of poor economic conditions and no employment opportunities in the country of origin, the pull factor would be a higher wage, better employment, or educational opportunities, as well as the migration policy of the host country. It is natural that if the push factor consists of natural disasters or uninhabitability of the living location in country of origin, the pull factor would be well-being in particular country where a migrant may find good living conditions.

3. Migration crises

Notwithstanding the reasons of migration, if migration is at a low scale, states, as host countries for migrants, are often willing to accept migrants and help them adapt to the new environment. However, high migration flows are the sign of migration crises. Based on history, the biggest waves of migration were caused by armed conflicts and political instability, such as the millions of refugees caused by World War II (1933–1945), the armed conflict in Syria (around 5 million), or the armed conflict in Ukraine (2021–present) with more than 6 million refugees.[2] Migration flows may challenge the balance between the host country’s security and the protection of migrants, especially when a group of migrants consists not only of economic migrants, but also refugees. Every state dealing with the crossing of its borders by migrants has to be aware of its own international legal commitments, mainly in relation to refugees. Refugees are looking for any form of international protection based on the legal system of refugees and asylum law. Refugees are forced to flee their country of origin as it is not able or not willing to protect the refugee from any form of persecution in the light of the UN Convention relating to the Status of Refugees (1951), also known as the Refugee Convention. The refugee has no choice but to leave the country of origin to protect their own life. However, economic migrants do not enjoy such broad protection, as they voluntarily decided to leave their country of origin in search of better living conditions, jobs etc. After they cross the borders of the host country, national rules for the entrance and residence of the foreigners will be applied to them. Somewhere in between migrants and refugees are climate refugees, which cannot enjoy the protection awarded to refugees, as the Refugee Convention does not apply to them. Bad climate conditions caused by rising sea levels, droughts, or lack of drinking water do not fall within the reasons of persecution under the Refugee Convention necessary for granting any form of international protection. Although international law does not grant any form of protection to climate refugees, their number is on the rise.

4. Are migration crisis solved by the refugee deals?

As migration flows may be too intense and the regime on state borders comes under serious pressure, states are trying to deal with this pressure by various forms of cooperative asylum arrangements by shifting the asylum responsibility to third countries; these are known as refugee deals. The refugee deal term is not legally correct, it is helping us unify the terminology in the area of the abovementioned arrangements negotiated under several legal forms.

First, we can mention the US–Canada deal adopted in 2002 in the form of a bilateral agreement.[3] Its aim is to ensure that the refugee claimants have access to a refugee status determination system and, just after the final determination of the refugee status, the country of last present may be required to accept the return of the refugee status to the claimant. This system may be compared to the Dublin System of EU law, whose main goal is to determine the state responsible for examining the asylum application. For fulfilling US and Canada international obligations, it is important that every applicant/asylum seeker has access to an effective system of judicial review of the final decision, not only in relation to the asylum application, but also to transfer to the state of last present. 

Second, another refugee deal, special to us as Europeans, is the EU–Turkey deal. It was adopted in 2015 in the form of a statement of the European Council, EU Member States, and Turkey.[4] The statement implied Turkey’s main commitment to re-admit every irregular migrant from Greece based on the rules of the international and EU law and Greece’s commitment to ensure that every migrant arriving to Greece would be duly registered and every asylum application would be processed individually by the Greek authorities. The basic idea was that, for every Syrian migrant returned from Greece to Turkey, another Syrian would be resettled from Turkey to the EU based on the UN Vulnerability Criteria. After several proceeding before the Court of Justice of European Union,[5] the form of the EU–Turkey deal was determined as a just political agreement. The Court refused to examine its content and focused only on form. Individuals affected by the EU–Turkey deal have no possibility to contest its legal consequences before EU institutions and benefit only from the possibility of the judicial review of the Greek and Turkish authorities’ actions before the European Court of Human Rights (ECtHR). As the experience of the EU–Turkey deal shows, states need to pay attention to the fundamental principles of asylum law when negotiating any arrangement shifting the asylum responsibility to a third country. Especially in relation to the EU–Turkey deal, there where accusations of the breach of the principle of non-discrimination, as it was designed mainly in relation to Syrian refugees (although it was positive discrimination); the principle of non-penalisation, as refugees were concentrated in facilities in inhuman conditions and under military control; and the principle of non-refoulement according to forced returns to the countries with the ongoing armed conflict.[6]

The newest deal is the UK–Rwanda deal, adopted in 2022 in the form of a Memorandum of Understanding between the UK and Rwanda as part of the Migrations and Economic Development Partnership with Rwanda. Its goal is the relocation of asylum-seekers arriving in the UK to Rwanda, where their asylum claims will be processed. The relocation would happen when the asylum seeker is considered as inadmissible to the asylum system as an individual who has passed through or has a connection with a safe country. If the claim for international protection is rejected, the asylum seeker could stay in Rwanda or return to his/her country of origin. Before the first relocation, the ECtHR has granted an urgent interim measure[7] focused on the national (UK) legal review process of transfer decisions. Specifically, the ECtHR has expressed concerns that the asylum seekers will not have access to fair and efficient procedures for the determination of their refugee status and Rwanda’s status as a safe third country.

In all forms of such arrangements, states need to pay attention to the concept of protection elsewhere based on the UNHCR[8] and Michigan Guidelines on Protection Elsewhere.[9] This concept is based on two basic preconditions. The first is the requirement of the compatibility of such arrangement with the Refugee Convention, mainly the respect for refugee rights in the receiving country. The second are the safeguard requirements, meaning that states need to ensure the right to independent judicial review and challenge the validity of the transfer decision. The above examples show us that states are not aware or not willing to fulfil such requirements. The closest to fulfilment is the US–Canada deal, mainly because its form is very similar to the Dublin Regulations and has the same goal of determining the state responsible for examining the asylum application. The legal form of such an arrangement is very important for the legal review of particular cases. States seem to intentionally choose the forms (political statements, memorandums of understanding etc.) without the possibility of the legal review. Based on the reactions in relation to the UKRwanda deal, individuals and judicial organs (ECtHR) are ready to contest such arrangements under the abovementioned requirements, which may be a good sign for fulfilment obligations owing to the legal review mechanism.            

[1] Exploring migration causes: why people migrate (2.5.2023) [Online]. Available at: https://www.europarl.europa.eu/news/en/headlines/world/20200624STO81906/exploring-migration-causes-why-people-migrate (Accessed: 30 January 2024).

[2] UNHCR: Data and statistics: Global Trends [Online]. Available at: https://www.unhcr.org/global-trends (Accessed: 30 January 2024).

[3] Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, known as the Safe Third Country Agreement (STCA) [Online]. Available at: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html (Accessed: 30 January 2024).

[4] EU–Turkey statement, 18 March 2016 [Online]. Available at: http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/ (Accessed: 30 January 2024).

[5] See Order of the Court of 12 September, NF and Others vs. European Council, Joint cases C-208/17 P to C-210/17 P (ECLI:EU:C:2018:705).

[6] For details, see Duarte, M. EU–Turkey Refugee Deal: Buck-Passing and Bargaining on Human Lives at Risk? [Online]. Available at: https://www.academia.edu/99257368/EU_Turkey_Refugee_Deal_Buck_Passing_and_Bargaining_on_Human_Lives_at_Risk (Accessed: 30 January 2024).

[7] ECtHR, N.S.K. v. the United Kingdom (application no. 28774/22 of 14 June 2022, formerly K.N. v. the United Kingdom).  

[8] UNHCR: Agenda for Protection: Summary Conclusions on the Concept of „Effective Protection” in Context of Secondary Movements of refugees and Asylum- Seekers, Lisbon Expert Roundtable, 9 and 10 December 2002. [Online]. Available at: https://www.unhcr.org/sites/default/files/legacy-pdf/3e5f323d7.pdf (Accessed: 24  January 2024).

[9] Colloquium on Challenges in International Refugee Law: The Michigan Guidelines on Protection Elsewhere. In: Michigan Journal of International law, vol. 28, issue 2, 2007, pp. 207–221.