Violating the Prohibition on Refoulement: How The US and Europe Fail Treaty Obligations in the Wake of Mass Migration

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Refugees on a boat in Sicily. Photo by Vito Manzari, Italy.

By Rosemary Laughton

In French, refoulement means to drive back or reject. In law, refoulement is defined as the expulsion of someone who has the right to be recognized as a refugee. It is considered an offense so grave that international bodies expressly have prohibited it through treaties. In the wake of displacement after World War II, the United Nations sought to remedy the horrors of refoulement, when it came to light that many countries had returned Jews to certain persecution or death by refusing to recognize them as refugees. The United Nations 1951 Convention & 1967 Protocol Relating to the Status of Refugees set the precedent for the international community in its pursuit in upholding human rights and expressly prohibit refoulement. Unfortunately, a contradiction exists for signatory countries that proclaim to uphold human rights when the interests of nations securing their borders and protecting their own citizens outweigh the needs of refugee populations participating in mass migration.

In 2013 the European Union saw 40,000 asylum seekers arrive from North Africa and enter various member states. Specifically, Italy saw a massive influx of Syrian refugees, with roughly 7,000 individuals arriving in 2013, up from 350 in 2012. Earlier this year the United Kingdom and France faced a migration “crisis” as the Eurotunnel company reported it had blocked more than 37,000 migrants attempting to cross into Britain from Calais. Britain is now focusing on increasing enforcement with little discussion to set up screening processes to identify individuals with refugee status. Britain’s enforcement focus ignores its treaty obligations to address claims of asylum for individuals fleeing persecution.

In an attempt to curb its migrant population, Italy sent immigrants back to Libya in 2009 through a Treaty of Friendship, without assessing asylum claims. Though this curbed the flow of immigrants from Libya, it was a direct violation of the refoulement provision of the Convention as it did not adequately screen asylum applicants. Austria was also criticized for deporting some asylum seekers prior to the determination of their appeals or extending detention for some individuals who had re-applied for asylum. Human rights lawyer, Dr. Marat Kengerlinsky criticized the European Union member states for their “third-country” practices. Under this practice, states avoid violating refoulement provisions by sending individuals to a third country to seek protection. However, critics cite this practice as a method of circumventing obligations under the Convention and Protocol. Though this practice is not expressly prohibited by the Convention, Kengerlinsky notes that it seriously undermines the principals of it.

The United Stated is also under intense scrutiny for its treatment of asylum seekers in response to the border surge. Expedited proceedings required women to explain fears of persecution, including fear of sexual violence and domestic violence, in front of their young children. Moreover, immigrants rights groups have filed multiple lawsuits against Customs and Border Patrol for ignoring claims of asylum and deporting individuals without proper screening. Given the complexities of the current asylum system in the United States, it is vital that asylum seekers have counsel and the majority of those seeking asylum in the absence of legal assistance are denied their claims.

Human Rights Watch (HRW) criticizes the expedited screening process for failing to properly identify individuals with legitimate claims to asylum. Specifically, the report on page 8 notes that 80% of individuals from Honduras were placed in the fast-track expedited removal proceedings. The process entails first meeting with a Customs and Border Patrol Agent who screens individuals for a credible fear of violence or death.  If they are determined to have a credible fear, they are referred to an asylum officer who will then determine the legitimacy of their fears and evaluate their potential for success in immigration court. Using data obtained from Customs and Border Patrol, HRW discovered of the 80% of Hondurans going through the expedited proceedings, only 1.9% moved on to the next process compared to the overall referral of 21% of individuals not emigrating from Central America. This disproportionality could reflect general ineligibility for asylum, but could also be a result of discriminatory screenings.

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Returned migrants board a bus in San Pedro Sula, Honduras. Photo by Stephen Ferry for Human Rights Watch.

Persons interviewed for the HRW report claimed their fears of persecution and desperate pleas to not be returned to Honduras for fear of death were ignored by the Border Patrol and Customs officials. The eventual result was refoulement for some individuals who never saw a judge or asylum agent. Conversely, individuals apprehended in-country are always heard by a judge and are not subject to the decision making power of the individual border patrol agent. In typical proceedings, preliminary assessments last forty-five minutes on average, and take place two to three days after detention. However, in wake of the crisis, Border Patrol agents assessments are much shorter, lack confidentiality, occur sometimes within hours of apprehension, and with armed agents. One person reported:

“When he informed a Border Patrol officer of the threats to his life in Honduras, “He told me there was nothing I could do and I didn’t have a case so there was no reason to dispute the deportation…. I told him he was violating my right to life and he said, ‘You don’t have rights here.’”

Expedited processes and enforcement focused border policies in Europe and the United States violate the Convention Relating to the Status of Refugees on many fronts. Most disturbing, the expedited processes result in deportation to death of individuals who had valid asylum claims. Returning them to their country of origin expressly violates the purpose of the treaty in the first place: safeguarding asylum seekers from certain persecution or death.

Instead of the enforcement-only approach, the member states of the European Union and signatory countries to the Convention and Protocol need to craft a strategy that comprehensively addresses the problem. They should consider setting up in-country screening processes for qualifying asylees prior to their migration, collaborating with member states to ensure certain countries do not become overwhelmed and creating a targeted visa process for refugees fleeing war and state-sponsored violence.

Rosemary Laughton is a 2016 J.D. Candidate at Creighton University School of Law in Omaha, Nebraska.

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