Not a Refugee: Safe Country Nationals and the Withholding of International Protection
When we think about asylum-seekers and the countries that are unable or unwilling to protect them, our thoughts may turn to Shia Hazara families fleeing Taliban violence in Afghanistan. We may think about the arbitrary detention of activists in Damascus by the Syrian Democratic Forces. As we think about what drives a decision to flee one’s country, the Eritrean government’s barbaric acts of torture and its imprisonment of Asmara residents, and the Midgan clans use of female genital mutilation as a political tool to control women in Somalia may also spring to mind.
We may turn to lawyers and human rights experts to gain a better understanding of why militant organizations seeking to establish an Islamic state may arouse fear in political activists. Academic journals, country reports, and case law may also highlight how the inundation of terrorist propaganda in rogue nations can grow to be dangerous for the average national.
As we journey away from the transgressions above, imagine that an individual fled their country because members of a criminal organization seek to extort and harm them. Are they entitled to international protection? What if authorities in a country fail to arrest the suspects who repeatedly assault and threaten a member of the LGBTI community? Suppose a student activist fled their country after police racially profiled and assaulted them, and the courts refuse to prosecute. Is this a legitimate claim for international protection? What if a whistleblower wrote an academic piece about the human rights conditions in their country, because they felt disclosure was in the public’s interest; however, had their act of fearless speech — that stands testimony to wrong — chilled by media in their country? Let’s assume mainstream did it to conceal from the public, serious government wrongdoing that ought to be known and deliberated about. Are they entitled to international protection? If the answer is yes, would it still be if we learned the individual fled Oceania, Europe, or North America? Some jurisdictions would argue no, as these nations have a democratic style of leadership. When there is a system of checks and balances, and “constitutional guarantees” of due process in place, a country is considered a safe country of origin. To be sure, the European Union’s Directive 2013/32/EU (Annex I) states:
“A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of directive 2011/95/EU, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.”
One cannot possibly accept this definition, as “consistently” indicates that in every democratic regime case, there is no persecution, torture, inhuman, degrading treatment or punishment, nor is there indiscriminate violence in situations of international or internal armed conflict on any occasion. That is a heavy burden for a country to meet, even those with a democratic style of leadership. If a country contends that its behavior is consistent with every citizen, and there are absolutely no forms of persecution on its soil, can we really trust it? Moreover, can we trust the international bodies that believe it too? It is a question that figures prominently in terms of the principle of non-refoulement — the practice of not forcing asylum-seekers and refugees to return to a country in which they are liable to be subjected to persecution.
Not a Refugee: Safe Country Nationals and the Withholding of International Protection – Are States Complicit?
Another question of huge significance is whether the country of asylum participates in wrongdoing committed by the agent of persecution when it imposes an irrebuttable presumption on the claimant not to qualify as a refugee under the Refugee Convention. Miles Jackson explores the idea of attribution in Complicity in International Law, and asserts that countries “cooperate with each other and with non-state actors all the time, often virtuously but sometimes wrongfully.” Indeed, in Goldstein v. Sweden, an American asylum-seeker was subjected to systematic police persecution and surveilled after he actively worked to reveal police brutality and other misconduct by the police in the United States. Non-state actors destroyed Goldstein’s property and attacked him with chemical substances. Even though Goldstein’s reports to the police authorities had been to no avail, the Swedish Migration Board decided there was no evidence to show that the United States police authorities had persecuted Goldstein and found him “not in need of protection in Sweden.” Goldstein appealed the decision to the European Court of Human Rights (ECtHR). Although Sweden breached its international obligation to offer protection, the ECtHR decided the United States could obviate the risk of non-state actors by providing appropriate protection.
The Immigration and Refugee Board of Canada (IRB) reached a similar conclusion in X (Re), 2014 CanLII 88897. In that case, applicants of Roma ethnicity in Hungary asserted Commandos forced themselves into their home and assaulted them. Their children were also assaulted on numerous occasions at school and on the bus. Although the applicants emphasized these attacks were racially motivated, the IRB rejected the appeal on grounds that Hungarian “police are being held accountable for their actions if they fail to take Roma complaints seriously or become agents of persecution of Roma citizens themselves.” While the European Commission against Racism and Intolerance encouraged Hungary to make further changes to continue its fight against racism, a recent report shows extensive discriminatory and abusive police practices against Roma still exist. What is more, many of the police officers interviewed in the report admitted to ethnic profiling. If the rule of attribution were applied, Hungary’s inaction would constitute a breach of its positive obligations to take measures to prevent violations committed by non-state actors, an obligation conditioned by a due diligence standard. With regard to Canada, Jackson suggests imposing a correlative duty of non-participation, as it would hold Canada responsible for its own contribution to the wrongdoing.
In both cases, the asylum-seekers laid out a plausible claim for international protection, and had it withheld because they were from countries that were considered “safe.” The appeals of asylum-seekers from “safe countries” are often not suspensive. In other words, these asylum-seekers will be deported to their country of origin pending the appeal decision, which The European Association for the Defence of Human Rights (AEDH), the International Federation for Human Rights (FIDH) and EuroMed Rights argues, renders the right to recourse ineffective in practice. Others have also argued that the concept reduces safeguards on procedural standards, places an extra burden on applicants, and reduces their chance to be granted protection.
The presumption that a country is “safe” for all of its citizens has been criticized by NGOs and scholars. EuroMed Rights, AEDH, and FIDH also opposes the notion of “safe countries of origin,” and points to members of minority groups who can face specific discrimination in countries where the rest of the population is generally “safe.” Although the UNHCR likened the presumption to a form of discrimination, when its committees and councils disregard violations committed by state and non-state actors in democratic regimes, and fail to hold these regimes responsible for positive obligation breaches, it acquiesces to such violations.
It is not argued here that an applicant who cannot substantiate a risk regarding the lack of state protection should be bestowed Convention Refugee status. The contention is this: when a country of asylum connivingly uses an irrebuttable presumption to withhold international protection — believing a low rate of convictions before human rights tribunals is proof that there are few rights violations in that country — it should be held accountable for its role in the toleration of the private human rights violations. To be sure, Jackson suggests where complicity is found in an international law matter, accomplices must be held responsible for their own acts of contribution to the principal’s wrong.
Take, for example, the case of A. v. Migrationsverket. In that case, the Swedish authorities relied on the rebuttable presumption in the recast Asylum Procedures Directive for procedures based on the safe country of origin concept to withhold international protection from a Serbian national, despite the fact it did not fully implement the concept in legislation. The Court of Justice for the European Union held when a Member State has not implemented the concept of a safe country of origin into relevant laws, regulations, and administrative provisions, it cannot reject an asylum application as manifestly unfounded on the grounds that the applicant is from a safe country of origin.
Lastly, there is a widely circulated claim that asylum-seekers from democratic regimes are not “real refugees” but are “economic migrants.” However, this is a charge launched against genuine applicants to degrade them and undermine the rights that emerge from obtaining Convention Refugee status. Many of these asylum-seekers bear some of the most powerful passports in the world that enables them to enter countries that have cordially recognized free migration and emigration for purposes of curiosity, trade, or to remain as permanent residents. This observation should demystify the specious argument that asylum-seekers from democratic regimes are leveraging incriminating country of origin evidence and fabricated stories so as to enter and remain in a foreign country.
Immigration and refugee law makes clear that the right to asylum is not a right to abreaction. It is a right to have an application for international protection carried out on an individual basis. The most effective way to exercise this right is for the persecuted to leave their country, and to provide evidence that outweighs a general presumption that their country is safe. The country of asylum must adequately examine and consider such evidence. When countries of asylum adopt and enforce administrative edicts based on nationality, they not only suspend this fundamental right, but they also breach their obligation not to discriminate — a precept widely recognized under international anti-discrimination law. In the words of the late Desmond Tutu, to remain neutral in situations of injustice is to be complicit in that injustice.
Not a Refugee: Safe Country Nationals and the Withholding of International Protection was originally published on 5th January 2022.
