Any time you say something like “asylum seekers should seek in their first safe country” you get referred to this Full Fact piece. Which is a masterpiece of not quite being clear. It’s necessary to read between the lines more than a little to pick out the real story here.
Do refugees have to stay in the first safe country they reach?
The answer to that is, of course, no. Anyone can, of course, go to any country that will have them.
The trick being performed here is in this phrase:
Incorrect. The UN Refugee Convention does not make this requirement of refugees, and UK case law supports this interpretation. Refugees can legitimately make a claim for asylum in the UK after passing through other “safe” countries.
Sure, anyone can make a claim anywhere.
But there’s a huge difference between who *must* grant a claim and who *may* grant a claim if they should so wish.
The asylum seeker, refugee thing, is a right in international law. Rights are things which must be granted. They are not privileges which may or may not be, they are rights which are due simply as being a human being in this specific situation.
If you are at risk in your own country then you have a right to seek safe haven.
However, that *right* extends only to that first safe haven you reach. It’s not the one next door, it’s the first your reach. That first safe haven *must* grant you that asylum, that safe haven. That’s what the right is.
Now, other places might well be willing to grant you safe haven. But they don’t have to. Those after your first safe lace might well do so – and just to be clear I’ve no problem with the UK doing so for all sorts of people in large quantity too – but that is a privilege at their discretion, not a right to be had a of, umm, right under international law.
Which is why people do get denied asylum in the UK as they are deemed to have that right elsewhere – in, perhaps the previous place they were before the UK.
Which is why I say that asylum seekers *should* – please note, not have to – claim in that first safe haven. Because that’s where that asylum is a right to which they have an absolute claim under international law. Claiming anywhere else is a privilege which they may or may not get granted.
As the Guardian says:
There is no obligation under the refugee convention or any other instrument of international law that requires refugees to seek asylum in any particular country. There has, however, been a longstanding “first country of asylum” principle in international law by which countries are expected to take refugees fleeing from persecution in a neighbouring state. This principle has developed so that, in practice, an asylum seeker who had the opportunity to claim asylum in another country is liable to be returned there in order for his or her claim to be determined.
But what happens if they have passed through a safe country on their way to the UK?
There is a general principle observed by many countries that asylum seekers who have passed through a safe third country where they could have claimed asylum can be sent back there in order to make their claim.
All of those waiting in Calais to cross the Channel fit into this category. They are in a safe country but few will have reached France without having crossed another EU border beforehand.
However, asylum-seekers may be returned to a country that is deemed safe based on reliable, objective and up-to-date information, and where they could have sought asylum provided that a fair process is available to them, there are proper standards of reception and their rights under the Convention will be respected in practice.
Me, I’d say this is all a fair enough basis for saying asylum seekers *should* apply in first safe haven because that’s where they’ve got that legal right to it. Anywhere else it’s a privilege which they may or may not be granted.
And I’ve got the Guardian, the BBC and UNHCR on my side in this too. And, as it happens, international law on asylum seeking.
Plus the law:
7.3 However, as currently drafted, they allow claims to be treated as inadmissible only if
the asylum applicant is accepted for readmission by the third country through which
they have travelled or have a connection. A stronger approach to disincentivise
individuals is needed to deter claimants leaving safe third countries such as EU
Member States, from making unnecessary and dangerous journeys to the UK.
7.4 The changes separate the readmission requirement from the inadmissibility decision,
allowing us to treat applicants as inadmissible based solely on whether they have
passed through one or more safe countries in order to come to the UK as a matter of
choice. They will allow us to pursue avenues for their removal not only to the
particular third countries through which the applicant has travelled, but to any safe
third country that may agree to receive them.
Note the point being made there. The first safe haven point always existed. The change in the law (Dec 2020) doesn’t change that first safe country thing either. It changes the ability to deport to, but not that general ability to refuse an application if this is not first safe country.
Or, The Guardian:
Ministers have quietly changed immigration rules to prevent people fleeing war or persecution from claiming asylum in the UK if they have passed through a “safe” third country, prompting accusations of a breach of international law.
From 1 January, claims of asylum from a person who has travelled through or has a connection to a safe third country, including people coming from EU member states, will be treated as inadmissible.
As you can see that’s slightly garbled from what the law says but that same distinction about safe countries is still made.
In the first two quarters of 2021, 7 cases were deemed to be inadmissible, meaning there was sufficient evidence that the asylum applicant had travelled via, or has connections to, another safe third country, and that country will take responsibility for the asylum application. The UK is preparing the return of these applicants.
First safe haven might be something the UK government can ignore if it wishes. It might be of minor relevance to the vast majority of cases. It could be that it’s a distinction that *shouldn’t* be made on moral or other grounds. But there’s absolutely no doubt that it’s a concept that does exist in the relevant law.
As to the other country being willing to accept them. This is rather “Hmm, so, does the concept of first safe haven exists” “Err, yes” “So, what do we do about it?”” “Ahh, that’s difficult”. OK, it is difficult, but we have established that the concept exists, haven’t we?