Asylum Legislation (Safe Third Countries)

Summary: The facts:The first complainant was an Iraqi national who had travelled by car to Turkey and then by train to Athens where, after a two-hour wait, she had flown directly to Frankfurt. On arrival she applied to the Federal Refugee Office for asylum on the grounds that she had been forced to flee her home country following an attack on her home, in which her parents had died, carried out as a reprisal for her refusal to spy on colleagues. Her asylum claim was dismissed as manifestly unfounded on the ground that she had come from Greece, a safe third country where she could have sought asylum, and she should therefore be returned there. This decision was confirmed by the Administrative Court. The first complainant filed a constitutional complaint arguing that she would be unable to lodge an asylum claim in Greece and would be returned to Turkey, from where she would be returned to Iraq and be at risk of persecution.

The second complainant was an Iranian national who had travelled overland to Austria, entering that country illegally via Hungary. The day after his arrival in Austria he had entered Germany and applied for asylum. The Federal Refugee Office rejected his claim on the ground that he had come from a safe third country. He was deported to Austria from where he filed a constitutional complaint arguing that Austria should not have been certified by the German legislature as a safe third country since Austrian practice was to return asylum seekers to Hungary as a safe third country, notwithstanding the fact that the latter's accession to the Geneva Refugee Convention was subject to a Europe only reservation.

Held:The constitutional complaints were unfounded. The designations of Greece and Austria as safe third countries were compatible with the Federal Basic Law (Grundgesetz: GG) and did not infringe the requirement of non-refoulement enshrined in Article 33 of the Refugee Convention.

(1) In 1993 new Articles 16a(2)(5) GG had been inserted into the Federal Basic Law so as to reformulate the basic constitutional right of asylum, thereby laying the foundation for a common European system of refugee protection based on international agreements establishing responsibility for examination of asylum requests and mutual recognition of asylum decisions. The new system was intended to share the burden amongst the participating States by moving away from the previous approach of solving problems relating to the admission of political refugees solely on the basis of national law. Whilst continuing to accept the need for protection from political persecution, the new rules directed asylum seekers away from Germany towards the protection available to them in so-called safe third countries (p. 669).

(2) Whilst the basic right of asylum continued to be guaranteed as before by Article 16a(1) GG, the safe third country approach restricted the personal scope of that right. Under the new rules, the route taken by an asylum seeker out of his country of origin had legal consequences in relation to his need for protection. Any person arriving from a safe third country within the meaning of Article 16a(2) would not be regarded as requiring the protection in Germany of the basic right of asylum because he could have found protection from political persecution in that safe third country. His exclusion from the basic right was not, however, dependent on whether he was actually to be returned to the safe third country. In such circumstances there were no asylum proceedings and the provisional right to remain that normally applied as soon as a basic right was invoked likewise disappeared (pp. 6701).

(3) Pursuant to Article 16a(2) GG, Member States of the European Community were automatically designated as safe third countries, a constitutional status which they derived directly from the Federal Basic Law. The same provision laid down that other third countries could be designated as safe by legislation so long as they were required by their domestic law to apply the Geneva Refugee Convention and the European Convention on Human Rights (ECHR). Such countries should also have submitted themselves to the control procedures provided for in those Conventions to ensure compliance, including the duty under Article 35 of the Refugee Convention to cooperate with the Office of the United Nations High Commissioner for Refugees (UNHCR) and the right for individuals to lay a complaint before the European Human Rights Commission pursuant to Article 25ECHR. In addition, the domestic law of the country in question should not allow it to deport a foreign national to an alleged persecuting State without having first examined whether he would be at risk there of persecution within the meaning of Article 33 of the Refugee Convention, or of torture or inhuman or degrading treatment within the meaning of Article 3ECHR (pp. 6713).

(4) In determining whether the application of the Refugee Convention was assured in a particular country, it was necessary to ascertain that it was guided by the principle of non-refoulement enshrined in Article 33 and the definition of refugee set out in Article 1 (A)(2). This would not be the case where, under its domestic law or as a result of political factors, particular groups of persons were per se excluded from consideration for refugee status, for example where there was a geographical reservation to the Convention's application or where refugees from certain States were generally not granted asylum. There were no procedures for the determination of refugee status laid down in the Convention and minimum procedural standards agreed by the Executive Committee of the UNHCR in 1977 had no binding force in international law. But some kind of formal procedure was required to determine whether a proposed deportation violated the principle of non-refoulement. That principle prohibited not just the direct return of a refugee to the persecuting State but also his deportation to other States where he would be at risk of onward deportation to that State (pp. 6735).

(5) The right to asylum could not be invoked under Article 16a(2) GG if a foreign national had entered the Federal Republic from a safe third country where he could have found protection. This depended on the course of his journey. Simply passing through another country by public transport without breaking the journey, or stopping for a limited time, was not sufficient unless the person had the opportunity to claim protection available in that third State in accordance with the Refugee Convention. However, all third countries having a common frontier with the Federal Republic had now been certified by legislation as safe and consequently it was no longer possible for a foreign national entering the Federal Republic overland to invoke the right to asylum. This was based on the assumption that protection would be available to an asylum seeker in any safe third country through which he passed (pp. 6767).

(6) The system instituted by Article 16a(2) GG introduced normative certification in relation to safe third countries. Member States of the European Community were automatically designated as safe and other States could be designated as safe by legislation. Such normative certification signified that the third country in question could offer a person entering its territory as a refugee the protection of both the Geneva Refugee Convention and the ECHR against political persecution and other serious threats to his life, person or freedom in his country of origin. As a result there was no longer any need for him to be offered protection in Germany. The safety of third countries was thereby established generally and there was no provision for any examination by the courts of the safety of foreign nationals in those countries on an individual case-by-case basis, where they were threatened with deportation to such a country. This was in contrast to the position where it was proposed to deport a foreign national to his country of origin, or a State not certified as a safe third country. Such cases were unaffected by normative certification and should always require an examination to ensure that the...