Can the Law Still Protect Access to Asylum?

Can the Law Still Protect Access to Asylum?

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A Comparative Look at the Fight to Preserve Access to Asylum in the United States and the United Kingdom

Susan M. Akram ^*

Abstract: The Refugee Convention and Protocol protect refugees and asylum seekers only once they are under a state's legal jurisdiction. States of asylum have increasingly resorted to a range of measures to block access to asylum in order to avoid triggering jurisdiction over asylum claims. Among such measures are bars to asylum on the basis that asylum seekers could receive protection in another "safe country"—whether a "first country of asylum," or a "safe third country" where they could be sent. The paper looks at recent litigation challenging the denial of refugee or asylum protection on "safe country" grounds in the United Kingdom and the United States. The paper assesses whether there are common elements on which courts on both sides of the Atlantic agree in analyzing whether a first or third country is "safe" that correlate to fundamental norms of asylum and refugee law.

Introduction

There is a recognized gap in refugee protection between the right to seek and enjoy asylum, enshrined in the UDHR, and the lack of a corresponding right to access a country of asylum. The Refugee Convention and Protocol protect refugees (and, by necessary implication, asylum seekers) only once they are under a state's legal jurisdiction. Over the past several decades, states of asylum have implemented a range of measures that operate to prevent that jurisdiction from arising. These include physical interceptions and pushbacks; ¹ carrier sanctions, visa regimes, and other forms of pre-departure screening designed to prevent people at risk of persecution from leaving their own countries; ² pre-arrival application procedures, which may be illusory; ³ the creation of extra-legal border zones; ⁴ and escalating criminalization of the act of seeking asylum or assisting asylum seekers at risk. ⁵ The lawfulness of many of these tactics has been challenged through litigation, with varying success. ⁶

More recently, some states of asylum have also sought to avoid offering protection to refugees and asylum seekers who are within their jurisdiction

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by arguing that protection is available elsewhere, in another "safe country." There are three distinct ways in which the "safe country" concept is applied. Under the "first country of asylum" concept, refugees and asylum seekers can be returned to countries where they have enjoyed or could have reasonably sought protection; the most prominent example of such a policy is the European "Dublin system." ⁷ Under "safe third country" policies, asylum seekers and refugees are transferred from the state where they are seeking protection to a "safe" third country for the consideration of their asylum claim. If found to be refugees, they may be readmitted to the country in which they initially sought asylum (as in the Trump administration's Remain in Mexico policy), resettled in a third country (as in the Australian Pacific Solution program), or offered protection in the country that has processed their claim (as in the UK-Rwanda Migration and Economic Development Partnership). Finally, in a new policy recently introduced by the United Kingdom, asylum seekers who have passed through a first "safe country" are permanently excluded from protection in the host state, even if protection is not available elsewhere. The previous opportunity to have avoided persecution elsewhere becomes, in essence, a new ground of exclusion.

This paper will look at recent litigation challenging the denial of refugee protection on "safe country" grounds in the United Kingdom and in the United States. The aim is to identify issues where that litigation has succeeded, and where it has failed. It will argue that the litigation has succeeded in reaffirming the fundamental importance of non-refoulement, including chain refoulement. It has not yet been able to vindicate a right of access to a form of effective protection that would, in the words of the preamble to the Refugee Convention, ensure refugees the widest possible exercise of fundamental rights and freedoms.

The History of Inadmissibility in the United Kingdom

From the late 1990s until December 31, 2020, the United Kingdom participated in the Common European Asylum System. Within that system, responsibility for asylum claims could in theory be determined according to a series of "Dublin" regulations agreed between member states of the European Union, Iceland, Liechtenstein, Norway, and Switzerland. Although the best interests of children and family reunification are important pillars of the "Dublin system," first safe country principles also play a significant role, and asylum seekers can in certain circumstances be returned to states that had issued them a visa or residence permit, or where they had initially entered a member state irregularly. ⁸ The United Kingdom also participated in the EU Procedures Directive, which allowed states to enact domestic laws treating an asylum claim as inadmissible if another country that was not a member state was considered a "first country of asylum" or a "safe third country." ⁹ Although

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the United Kingdom incorporated these principles into its asylum rules, they were almost never used in practice. ¹⁰

For the two decades that the United Kingdom was part of the Dublin system, litigation challenging exclusion from the UK's asylum system on "safe first country" grounds therefore focused almost exclusively on transfers pursuant to the Dublin system. These drew on three distinct but overlapping bodies of law: UK domestic law (including common law); the European Convention on Human Rights (ECHR), as interpreted both by the European Court of Human Rights and (following the incorporation of the European Convention on Human Rights into UK law by the Human Rights Act 1998) by domestic courts; and the EU Procedures Directive, as interpreted by the Court of Justice of the European Union. As has been argued elsewhere, several key principles emerged:

1. Although membership of the European Union and adoption of international and human rights treaties could raise a presumption that another country was generally "safe" for asylum seekers and refugees, that presumption must always be rebuttable.
2. Individuals must have the right to show that a country that is in general safe is not safe for them, especially due to their particular vulnerabilities. There is no need to show that the asylum or reception system in the receiving country is "systemically" unfair or unsafe.
3. Challenges to transfers succeeded primarily on one of two grounds: that reception conditions were inhuman or degrading, or that there was a risk of chain refoulement. Lack of effective access to the positive rights associated with refugee status—such as the right to work, access to housing and public relief, or family reunion—was not clearly recognized as sufficient to prevent a Dublin transfer. ¹¹

EU law ceased to apply in the United Kingdom at the end of the post-Brexit "transition period" on December 31, 2020. Since then, the United Kingdom has enacted a series of new measures aimed at deterring asylum seekers from coming to the United Kingdom, pursuant to a program the government calls the New Plan for Immigration. The aim of the New Plan for Immigration is said to be threefold: "to increase the fairness and efficacy of our system so that we can better protect and support those in genuine need of asylum"; "to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger"; and "to remove more easily from the UK those with no right to be here." ¹² Among the many changes that have been enacted pursuant to this "plan" are a higher standard of proof for refugee claims, restrictions on rights of appeal, the criminalization of formerly lawful routes to claiming asylum in

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the United Kingdom, increased criminal penalties for immigration offenses (including assisting asylum seekers to come to the United Kingdom) and the removal of protections for victims of trafficking. There is also a commitment to greater integration support for refugees in the United Kingdom and more "safe and legal routes" for those "genuinely" in need of protection, but these have not yet been introduced. ¹³

The measures preventing access to the asylum system in the United Kingdom have taken three forms:

1. administrative rules on inadmissibility and transfers to safe third countries, which apply to claims made between January 1, 2021 and June 27, 2022;
2. legislative inadmissibility and safe third-country provisions, set out in the Nationality and Borders Act (NABA) 2022, which for the most part came into effect on June 28, 2022; and
3. the Illegal Migration Act 2023, which prohibits the consideration of an asylum or "human rights claim" or the grant of leave to enter or remain or British nationality for anyone who comes to the United Kingdom irregularly, unless they come "directly from a country where their life or liberty was threatened" on a Refugee Convention ground. The prohibition on the grant of British nationality is already in effect for anyone who arrived on or after March 7, 2023, but the Home Secretary has delayed implementing the prohibitions on considering an asylum or human rights claim and on granting leave to remain.

The New Inadmissibility Rules

The inadmissibility rules of December 31, 2020, and the inadmissibility provisions of the NABA 2022 combined first safe country and safe third country concepts. They provide that an asylum claim may be treated as inadmissible and not considered in the United Kingdom if an applicant:

1. has been recognized as a refugee or otherwise enjoyed "protection" in a safe third country; or
2. they ¹⁴ "could enjoy" protection in a safe third country because they either had