HOW IT
WORKS IN
PRACTICE
131. In 1951 it may have been expected that someone fleeing
persecution in their own country would seek refuge in the first
safe country in which he arrived. The 1951 Convention does recognise
that people may travel to more distant countries, perhaps on the
grounds of family links, before seeking asylum. It is open to
a country to return an asylum seeker to a safe country through
which they have travelled. The Convention only protects people
from prosecution for illegal entry if they have come directly
from their country of origin - so illegal entry from a safe country
is not protected. Charts J to M show the origins and destinations
of asylum applicants in Europe in 1999 (after paragraphs 138 and
140).
132. The Government's interpretation of the 1951 Convention's
provisions have been subject to legal challenges. In the cases
of Adan and Aitseguer, the decision to return asylum applicants
respectively to Germany and to France was successfully challenged
in the Court of Appeal, which ruled that the interpretation of
the Convention in those countries was such that the applicants
might subsequently be returned to their countries of origin.[102]
The Government contends that the individuals have been given absolute
protection from return to their country (known as "refoulement")
under another instrument, article 3 of the European Convention
on Human Rights. The House of Lords upheld the decision of the
Court of Appeal on 19 December 2000.[103]
These cases related to events before the enactment of the Immigration
and Asylum Act 1999.
| "The basic principle [of the Dublin Convention] is to identify the country which initially admitted those people to the EU area." Home Office Q484
|
133. Section 11 of the Immigration and Asylum Act 1999, which
entered into force on 2 October 2000, now provides that all other
EU Member States are "safe third countries of asylum".[104]
Section 11 "does not allow immigration officers at Dover
to send people straight back if they have made an asylum claim,
but what it does is to say that other EU Member States are safe
third countries whose authorities and courts can be trusted to
deal with things in a manner that meets our standards here".[105]
| "We then have to apply to the country under the Dublin Convention rule with which that relationship arises, be that Italy or France. If that country then says, yes, they accept that Dublin does apply to that person, they can then be sent back to that country. It requires communication with that country, it is not simply putting them back on the ferry." Home Office Q 480
|
134. In the case of Adimi, three asylum claimants had
been prosecuted for arriving in the UK on false documents even
though they had intended to claim asylum. The court ruled that
in prosecuting the claimants the Home Secretary and the Crown
Prosecution Service had not honoured the UK's obligations under
the 1951 Convention.[106]
Section 31 of the Immigration and Asylum Act has subsequently
enabled asylum claimants to offer a defence against prosecution
for use of false documents.
135. The Home Secretary told us:
"we have not been helped as a country by differing
interpretations of some aspects of the 1951 Convention, not least
in the issue of nonstate persecution, but there are aspects
which do, the interrelationship between the 1951 Convention
obligations and those under the European Convention of Human Rights.
This is an area where I am convinced that we would benefit by
a greater degree of cooperation with our EU partners and
by there being a greater degree of commonality between the approach
which each EU partner adopts, because at the moment I think you
do get what has been called "asylum shopping", where
slightly different interpretation in different countries leads
to people being attracted to one country or another".[107]
136. The proportion of asylum seekers who eventually satisfy
the criteria for refugees has varied since 1986 between 4% and
36% but UNHCR figures show that over the past ten years the UK
has accepted 12.1% of applicants as genuine refugees - slightly
above the rate of 11.1% for all EU countries and below the world
rate of 15%.
137. It is clear to us that other countries do operate their
border policy differently from the UK. Illegal entrants into Germany
across the border from the Czech Republic are returned there directly
without the issue of asylum being raised - they are deemed to
have come from a "safe third country" and so have no
need to seek asylum in Germany. We saw the same principle applied
by Spain in relation to illegal entrants from Morocco. Prior to
the Dublin Convention - agreed in 1990 and implemented in 1997
- there was 'a gentleman's agreement' between the UK and France
which enabled the UK authorities to return illegal entrants directly
to France.[108]
138. The experience of Kosovo illustrates what can be done
to assist refugees. Many European countries accepted refugees
temporarily, but the neighbouring state of Macedonia was the principal
refuge for most Kosovans. In 1999, former Yugoslavia was the country
of origin of by far the most asylum applicants in the EU as a
whole. The 1951 Convention would not distinguish between the UK's
responsibility for refugees from Kosovo and those from Rwanda.
We understand that some other EU countries admitted refugees from
Kosovo on the basis that they would not apply for asylum. The
Home Secretary told us:
"The legal advice to England, very strongly, was that
if I had sought to do that and some people subsequently made applications
for asylum, they would claim that they had given up their right
to claim asylum under duress, ie, on leaving the country".[109]
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