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

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Today's refugees are rarely able to travel directly from their of origin to their intended ultimate destinations. They are much more likely to stop in one or more countries along the way, for varying lengths of time and under varying conditions. Many of those third are developing states that lack the resources to provide internationally acceptable levels of protection. In other cases, either the third is able but unwilling to do so, or the refugee is eager to rebuild his or her life elsewhere, for any of a great number of reasons. At the same time that of origin spawn millions of new refugees, third and ultimate destination alike are increasingly prone to devise new restrictions. In particular, destination have steadily erected procedural barriers to their asylum determination systems. Among those barriers is the practice of returning certain asylum-seekers to third without deciding the substance of the claims - either on the ground that the third was a third country and that the person therefore should have requested protection there, or on the ground that the third was a of having already granted protection. These restrictions might be adopted unilaterally or they might be part of a bilateral or multilateral agreement. Under any of those circumstances, the returns give rise to a host of serious problems for the refugees themselves, for the third countries, and for regional stability. The broad question is how much legal freedom refugees have to choose the that will decide their asylum claims. This paper proposes criteria for determining when international law, and when sound policy, permit a to return an asylum seeker to a third without deciding the substance of his or her claim. It is argued, contrary to conventional wisdom, that the criteria for returning asylum-seekers to third countries are precisely the same as the criteria for returning them to of asylum. In the course of constructing these criteria, the paper argues that various developments in international law now add up to a general principle: No may send any person to another country, that the latter will violate rights which the sending is itself obligated to respect. That assertion is qualified: For purposes of the complicity principle, the degree of certainty encompassed by the word knowing may vary inversely with the importance of the right. Section I supplies the necessary background information. It describes the concepts of safe third country, readmission agreements, agreements to allocate responsibility for determining asylum claims, and first of asylum, and it outlines the practical problems associated with each. Sections II and III make normative claims. Section II is general in scope. It first examines the third question in the broader perspective of other important strategies for addressing the root causes of irregular secondary movements and for protecting refugees after the fact. It then develops the essential policy premises for the specific criteria formulated in the next section. Drawing on those premises, section III examines in detail a number of possible specific criteria for the permissibility of returns to third countries. It concludes with two lists - a list of proposed minimum requirements of international law and a list of proposed best practice criteria.