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State Discretion in EU Refugee Status Determination Processes:Violation or Adherence to Non-Refoulement?

ABSTRACT: Recent developments in Europe have brought the mass influx of refugees into European Union (EU) member states into sharp relief. The crisis in Syria has led to the displacement of hundreds if not thousands of refugees into and across Europe, resulting in a strain to the domestic systems of various EU member states. These asylum claimants flee from Syria to neighbouring EU member states in order to seek refuge from persecution. The process by which a state determines whether an asylum claimant should be admitted as a refugee in its territory is largely discretionary. The state’s non-refoulement obligations are triggered when its sovereign discretion is exercised to determine whether an asylum claimant is admitted as refugee in its territory. Now more than ever, clarity in the law is needed with regards to what constitutes state discretion and the boundaries with which states may exercise their sovereign prerogative to determine refugee status.

KEY WORDS:Non-refoulement, Dublin System, state discretion, margin of appreciation, asylum claimant

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INTRODUCTION

Recent developments in Europe have brought the mass influx of refugees into European Union (EU) member states into sharp relief. The crisis in Syria has led to the displacement of hundreds if not thousands of refugees into and across Europe, resulting in a strain to the domestic systems of various EU member states. These asylum claimants flee from Syria to neighbouring EU member states in order to seek refuge from persecution. The process by which a state determines whether an asylum claimant should be admitted as a refugee in its territory is largely discretionary. The state’s non-refoulement obligations are triggered when its sovereign discretion is exercised over an asylum claimant to determine whether to admit him or her into its territory, as soon as the state is deemed to have effective authority and control over the asylum claimant.1 Now more than ever, clarity in the law is needed with regards to what constitutes state discretion and the boundaries with which states may exercise their sovereign prerogative to determine refugee status.

The principle of non-refoulement is a central tenet in international refugee law. This principle is not only codified in various international instruments, but has also entered customary international law and is widely regarded as a jus cogens norm.2 This principle is also enshrined in various regional instruments including the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and adopted in domestic legislation such as the EU Directive 2011/95/EU.3 The prohibition of refoulement should ideally guide the state in asylum procedures and refugee status determination by restricting the exercise of state discretion to the extent that the state needs to comply with the principle. However, in reality, the mere prohibition of refoulement without mechanisms of enforcement does not necessarily, in every case, prevent the state from acting ultra vires the margin of appreciation, leading to the lack of consistent safeguards against refoulement.4 Therefore, this

1 United Nations High Commissioner for Refugees, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (2007) para 34 and 35 (UNHCR Advisory Opinion); For effective control see: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986 [105]-[115]; International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No 10 (A/56/10), art 8.2 Such as the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954)189 UNTS 137 art 33 (Refugee Convention); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 art 3 (CAT); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 6 and 7 (ICCPR); Declaration of State Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/MMSP/2001/09 (adopted 12-13 December 2001), 16 January 2002, Preamble, para 4; Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulment: Opinion,’ in Erika Feller, Vulk Turk, and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) 87 (Lauterpacht); Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984 Section III(5); Jean Allain, ‘The Jus Cogens Nature of Non-Refoulement’ (2002) 13(4) IJRL 533, 538.3 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols No. 11 and 14, 4 November 1950, ETS 5 art 3 (ECHR), cited in various European Court of Human Rights case law: Soering v United Kingdom, App No 14038/88 (ECHR, 7 July 1989); Chahal v United Kingdom, App No 22414/93 (ECHR, 15 November 1996) [79]-[80]; Saadi v Italy, App No 37201/06 (ECHR, 28 February 2008) [138]; Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) art 21.4 See s 1.2 on margin of appreciation.

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paper will argue that international courts and tribunals need to play a bigger role in overseeing the process of adherence to the principle against refoulement by clarifying the law on margin of appreciation.

Under international law, state discretion plays a major role in determining whether an asylum claimant is admitted into the state as a result of refugee status determination processes. States exercise their sovereign prerogative when they decide the admission criteria and the protection mechanisms upon which the asylum claimant’s rights will be safeguarded and to fulfill their obligations under international law. This paper will argue that states have used the doctrine of margin of appreciation as an excuse to overstate their sovereign prerogative in their application and interpretation of asylum claims procedure obligations under international law, leading to violation of non-refoulement. While on one hand, states exercise their sovereignty freely when they interpret and act in accordance with their international law obligations, on the other hand, the principle of non-refoulement is widely determined to be a jus cogens norm, is non-derogable, and therefore require states to make way for and show deference to these international standards.

The aim of this paper is to examine whether the principle of non-refoulement has been violated or adhered to when states exercise their discretion in processing asylum claims. This paper argues that the principle of non-refoulement is violated when states act ultra vires their margin of appreciation, by removing procedural safeguards, creating inconsistent interpretations, as well as deferring to state interests when determining refugee status. This paper begins by examining the key definitions of non-refoulement, state discretion, and asylum claims procedure under international law. Next, the paper will discuss how a wide margin of appreciation permits refoulement by removing procedural safeguards, creating inconsistent interpretations, and placing state interests above the interests of asylum claimants. Finally, the paper concludes with some recommendations on how to resolve a wide margin of appreciation including exploring the implications of each recommendation on refoulement.

PART A KEY DEFINITIONS

1.0 KEY DEFINITIONS

The next section explores the key definitions discussed in this paper, including what is non-refoulement, state discretion (or margin of appreciation), and an explanation of refugee status determination under international and EU law.

1.1 Principle of Non-Refoulement

The principle of non-refoulement is a central tenet of international refugee law. There is international human rights law or international refugee law-based non-refoulement. Non-refoulement based on international refugee law is codified in the Convention Relating to the Status of Refugees (Refugee Convention), while non-refoulement based on international human rights law has been extended to cover the right to life (article 6) and the prohibition against torture, or other cruel, inhuman or degrading treatment or punishment (article 7) under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).5 When read in conjunction with General Comment No 31 of the Human Rights Council, non-refoulement based on international human rights law is also found in the 5 Refugee Convention (n 2) art 33; CAT (n 2).

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International Covenant on Civil and Political Rights (ICCPR), which obliges states “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm”.6 This paper will not be discussing non-refoulement based on international human rights law but will instead focus upon international refugee law’s definition of non-refoulement.

The principle of non-refoulement is the right of an asylum claimant not to be returned back to their country of origin where they will face persecution on any of the five Refugee Convention grounds (direct refoulement).7 Returning an asylum claimant back to the first recipient state in the context of the EU Common European Asylum System (CEAS), which is the standards by which EU member states establish and maintain their criteria and procedures when examining asylum applications, where he or she is unlikely to be adequately processed also constitutes indirect refoulement.8 The principle of non-refoulement is non-derogable, and has entered customary international law, which makes the principle binding upon all states and cannot be set aside or suspended, even upon express consent of states.9 Further, non-refoulement is binding on all states regardless of whether they are contracting parties to the Refugee Convention.10

Non-refoulement applies also to those who have not been formally recognized as refugees under domestic implementation of the principle.11 In other words, the principle of non-refoulement applies also to those seeking asylum owing to a “well-founded fear of being persecuted”.12 Further, non-refoulement is applicable not only to deportation, but also to “any form of forcible removal, including […] expulsion, extradition, informal transfer or ‘renditions’, and non-admission at the border”.13 The scope ratione loci of a state’s obligation to non-refoulement is determined by the state’s effective authority and control over the individual being contemplated, and not whether the individual contemplated is within the territory of the state.14 The idea that a state’s non-refoulement obligations do not have territorial restrictions is also evident in various international law instruments.15 The scope and obligations under non-refoulement are especially relevant to a state’s exercise of discretion when processing asylum applications.

6 ICCPR (n 2); United Nations Human Rights Council, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 12. 7 The five grounds of persecution are well-founded fear of persecution on the basis of (a) race, (b) religion, (c) nationality, (d) membership of a social group, and (e) political opinion. The word “persecution” itself is not defined in the Convention, which has been cited by some scholars such as Goodwin-Gill as problematic in Guy S Goodwin-Gill, Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007) (Goodwin-Gill).8 European Commission, ‘Common European Asylum System’ (2015) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/index_en.htm> accessed 15 June 2016; Moira Sy, ‘UNHCR and Preventing Indirect Refoulement in Europe’ (2015) 27:3 IJRL 457, 478. 9 UNHCR Advisory Opinion (n 1) para 12; CAT (n 2) art 3; John H Currie, Public International Law (2nd edn, Irwin Law Inc, 2008).10 United Nations High Commissioner for Refugees, ‘UNHCR Note on Diplomatic Assurances and International Refugee Protection’ (2006) para 15 (UNHCR Note).11 Lauterpacht (n 2) 116.12 ibid; Refugee Convention (n 2) art 1A(2). 13 UNHCR Advisory Opinion (n 1) para 7.14 ibid (n 13) paras 34 and 35.15 See, for example, CAT (n 2).

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1.2 State Discretion

There is no ascertained definition of state discretion. However, state discretion is reflected in the doctrine of margin of appreciation, which remains an unsettled area of the law.16 There are two fundamental principles or elements that comprise the doctrine of margin of appreciation:

a) Judicial Deference – When national authorities are granted deference by the courts when they use their discretion to carry out duties under international law;

b) Normative Flexibility – When national authorities reach different interpretive conclusions on the same international norm in question.17

The doctrine of margin of appreciation is not unlimited.18 Decisions of national authorities of states are still subjected to review by international courts and tribunals, and states are expected to exercise their margin of appreciation out of good faith.19 The doctrine of margin of appreciation is not codified in international instruments, but rather, the source of the doctrine is inherent in the jurisdiction of international courts.20

The idea of state discretion is tied hand-in-hand with state sovereignty and legitimacy. For instance, in the EU context, state sovereignty necessarily entails a particular deference from the European Court of Human Rights (ECtHR) when it comes to adjudication of cases involving national interests. EU member states are given a degree of deference (or a margin of appreciation) by the ECtHR to balance these state interests against individual rights.21 However, it is not the ECtHR’s role to substitute its own views over the views of the EU member state.22 The principle of proportionality is also in place to safeguard against EU member states acting ultra vires to the margin of appreciation accorded, and to ensure that EU member states do not go beyond what is necessary to achieve their objectives in the implementation and enforcement of their measures.23 Further, the principle of proportionality 16 Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16:5 EJIL 907, 909; Wherein international courts and tribunals have issued conflicted decisions on its use, for instance, the ECtHR has applied in its Handyside decision, that the doctrine applies to domestic legislators and to judicial bodies, while World Trade Organization (WTO) Dispute Settlement Body and its Appellate Body has stated in the Asbestos case, that the doctrine applies to WTO members.17 ibid (n 16) 910; The level of deference accorded depends on the particular international court and tribunal adjudicating, the level of expertise of the national authority in question, as well as the factual circumstances surrounding the case in question; International Criminal Tribunal for the Former Yugoslavia, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ (2000) para 50; Donoho, ‘Autonomy, Self-Government, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal Human Rights’ (2001) 15 EILR 391, 457; Greer, ‘Constitutionalising Adjudication under the European convention on Human Rights’ (2003) 23 OJLS 405, 409.18 ibid (n 16) 910.19 ibid (n 16) 910-911; Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 26 (VCLT); Akande and Williams, ‘International Adjudication on National Security Issues: what Role for the WTO?’ (2003) 43 VJIL 365, 389-391.20 Prosecutor v Bobetko, Decision of 29 November 2002 (ICTY, AC) para 15.21 Eleni Fantziou, ‘The margin of appreciation doctrine in European human rights law’ University College London 2.22 ibid.23 ibid; Principle of Proportionality under international human rights law is the idea that: ‘any action by the Community shall not go beyond what is necessary to achieve the objectives of [the] Treaty’ in Treaty Establishing the European Community (Consolidated Version), 25 March 1957 art 5; involves a three-prong

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is a “yardstick” for determining whether the EU member state has overstepped the bounds of its discretion.24 While safeguards such as the principle of proportionality are in place to prevent states from acting ultra vires the margin of appreciation, these safeguards are not sufficient to prevent states from exercising their sovereign prerogative overly wide in a bid to establish legitimacy in the world stage or to protect national interests, often at the expense of asylum claimants being sent back to their country of origin to face persecution.

1.3 Refugee Status Determination under International Law

For the purpose of this paper, refugee status determination is the process by which states exercise their sovereign prerogative to either accept or reject the application of the asylum claimant to be admitted as refugee in the territory of the examining state. The Refugee Convention does not provide for a standard refugee status determination procedure or standards in assessing these claims. Instead, the Refugee Convention codifies persecution, minimum standards of protection which state parties are obliged to follow, and a general standard of treatment expected of state parties on the reception of asylum claimants.25 Article 7 of the Refugee Convention imposes an obligation on state parties to the Refugee Convention to treat refugees equally with “aliens”.26 Further, refugees are to be accorded rights and benefits in accordance with the principle of reciprocity.27

Where the hard, black-letter law does not provide a clear standard for refugee status determination procedures, soft law may assist in interpreting any ambiguities. For instance, the United Nations High Commissioner for Refugees (UNHCR) has published guidelines on the procedures and criteria for determining refugee status (Guidelines), considered “soft law”,

test: (i) test for suitability, (ii) test of necessity, and (iii) test for proportionality in the strict sense (see Yutaka Arai-Takahashi, ‘Part III: Structural Principles, Ch.19 Proportionality’ (2013) Max Planck Encyclopedia of Public International Law, University of Oxford 4.1 (Takashashi).24 ibid, Takashashi (n 23) 3.2.25 Refugee Convention (n 2); see the five grounds of persecution (n 9); Minimum standards of protection include: right of association (article 15), access to courts (article 16), wage-earning employment (article 17), right to rationing (article 20), right to housing (article 21), right to public education (article 22), right to public relief (article 23), right to social security (article 24), freedom of movement (article 26), right not to be expelled to country of origin where they will face persecution on any of the five Convention grounds (non-refoulement)(article 33); United Nations Economic and Social Council, ‘Draft Convention Relating to the Status of Refugees: Decisions of the Working Group Taken on 9 February 1950’ (1950) UN Doc E/AC.32/L.32 art 7; United Nations High Commissioner for Refugees, ‘The Refugee Convention, 1951: The Travaux Preparatories Analysed with a Commentary by Dr Paul Weis’ 41 (Annotated Refugee Convention), where it was stated that: ‘Where rights and favours are accorded to aliens generally, but are made subject to reciprocity, those rights and favours shall not be refused to refugees’.26 ‘Alien’ is defined as: ‘any individual who is not a national of the State in which he or she is present’, in Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they live, 13 December 1985, UN Doc A/RES/40/144 art 1.27 Annotated Refugee Convention (n 25); the Principle of Reciprocity is defined as: ‘the status of a relationship between two or more States under which a certain conduct by one party is in one way or another jurisdically dependent upon that of the other party. Such conduct will in most instances, but not necessarily, amount to identical or equivalent treatment’ in Bruno Simma, ‘Reciprocity’ (2008) Max Planck Encyclopedia of Public International Law, University of Oxford.

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as a source of factors on the definition of “refugee” based on state practice over 25 years.28 Despite being “soft law” the Guidelines have been considered authoritative by states.29

1.4 Refugee Status Determination under EU Law

Under EU law, the Dublin System determines the member state responsible for processing the asylum application.30 The EU acquis applies when the asylum claimant arrives at the border of the EU member state, which includes arriving through EU member state territorial waters or through transit zones.31 In the EU refugee status determination procedure, the asylum official first determines which category the applicant for international protection falls under, such as whether he or she is a minor and / or has family member(s) in another EU member state.32 Next, the asylum official considers whether the applicant has entered the EU irregularly or regularly, if the asylum claimant has no family members or, in the case of minors, no siblings or relatives are present, in other EU member states. Also, in certain EU member states, asylum officials will also determine if the criteria for safe third country pursuant to the Asylum Procedures Directive applies.33 Where the criteria for safe third country does not apply, the asylum official will consider granting subsidiary protection pursuant to the Qualification Directive, and also determine whether humanitarian and compassionate grounds apply, for example, so that the asylum claimant may be brought together with other family members, relatives, or other family relations.34

PART B STATE DISCRETION

The next section explores how a wide margin of appreciation permits refoulement by removing procedural safeguards, creating inconsistent interpretations, and placing state interests above the interests of the asylum claimant.

2.0 WIDE MARGIN OF APPRECIATION PERMITS REFOULEMENT BY REMOVING PROCEDURAL SAFEGUARDS

2.1 Wide margin of appreciation permits bias in processing asylum claims

28 United Nations High Commissioner for Refugees, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ (1992) UN Doc HCR/IP/4/Eng/REV.1 Reedited, Foreword V and VI (Guidelines); John Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (2nd edn, Irwin Law, 2014): “the manuals and guidance notes prepared by expert bodies as diverse as the UN Refugee Agency (UNHCR) and the International Civil Aviation Organization (ICAO) may be considered influential soft law instruments”.29 Marcelle Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Bloomsbury Publishing, 2014), 59.30 European Union, ‘Regulation EU No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)’, OJ L180/31, 29 June 2013 (Dublin III Regulation).31 European Union, ‘Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast)’, OJ L180/60, 29 June 2013, art 3(1) (Asylum Procedures Directive).32 Dublin III Regulation (n 30) art 8, 9, 10. 33 ibid (n 30) art 3(3). 34 ibid (n 30) recital 17.

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States exercise their discretion when they determine which asylum applications to accept and which to reject. In the EU context, EU member states are not only required to act intra vires the margin of appreciation, but are also required by the principle of the right of good administration to safeguard procedural protection for asylum claimants. The principle of the right of good administration encompasses both objective impartiality and subjective impartiality.35 Objective impartiality requires the exclusion of any bias on the part of the institution concerned, whereas subjective impartiality requires that no member of the EU institution concerned may show bias or personal prejudice.36 The EU institution must also conduct an administrative investigation to adequately determine the matter in question.37

EU member states are given deference by courts through the margin of appreciation to enact domestic laws in compliance with their EU and international law obligations. EU member states are also bound by the EU Charter to act impartially and to exclude any biases when they consider asylum applications.38 The problem arises when EU member states permit bias to dictate or inform the exercise of discretion to accept or reject asylum applications. For example, an EU member state can act ultra vires the margin of appreciation accorded to it by the ECtHR when it decides not to process an asylum application and bases that decision solely on prima facie facts, without first conducting a full administrative investigation.39 When processing asylum applications with bias, the asylum official is not properly investigating the merits of the asylum application. Rather, the asylum official is taking into account irrelevant factors when deciding whether to accept or reject the particular asylum claimant. Relying on biased information to inform the decision to process asylum applications has also been held to be in contravention of the duty to act impartially in the case of OS v. Ministry of Interior. 40 In OS, in deciding whether to admit the asylum claimant as refugee in its territory, the Ministry of Interior based its decision on a biased country of origin report.41 Having based its decision on a report that was political and that was not an accurate assessment of Turkey at the time, the Ministry of Interior has exercised bias in its decision-making. As this case shows, having a wide margin of appreciation allows the state to exercise its discretion to process asylum claims at the expense of the asylum claimant. The display of bias in the exercise of discretion when processing asylum applications results in a rejection of the asylum application and the refoulement of the asylum claimant back to persecution.

Another example can be taken from the case of Agiza v. Sweden, which concerns the expulsion of an asylum claimant on the grounds of involvement in suspected terrorist

35 The principle of the right of good administration is defined as: ‘the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’ (article 41(1)), ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’ (article 41(2)(a)), ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’ (article 41(2)(b)), and ‘the obligation of the administration to give reasons for its decisions’ (article 41(2)(c)) in Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02 art 41 (EU Charter); C-439/11 P Ziegler SA v Commission [2013], [155] (Ziegler), this case was cited by C-604/12 P HN v Minister for Justice, Equality and Law Reform, Ireland, Attorney General [2014], [52].36 ibid; see, by analogy: C-342/06 P Chronopost and La Poste v UFEX and Others [2008], [54]; and C-308/07 P Gorostiaga Atxalandabaso v Parliament [2009], [46].37 Ziegler (n 35) para 148.38 EU Charter (n 35) art 41; see ‘the right of good administration’ (n 35).39 ibid.40 OS v Ministry of Interior, Supreme Administrative Court, Regional Court in Prague, Decision No 48 Az 57/2008, 14 August 2008 (Czech Republic).41 ibid.

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activities.42 The Committee Against Torture held that Sweden was in violation of Article 3 of CAT when it unilaterality decided to expel an asylum claimant to Egypt, when it knew or ought to have known of the consistent and widespread use of torture of detainees in Egypt.43 Sending the asylum claimant to Egypt would be a direct violation of his rights against refoulement. The Committee Against Torture also held that Sweden was in breach of its procedural obligations under Article 3 of CAT to provide an effective, independent, and impartial review of the expulsion decision.44 Accordingly, a failure to exercise discretion impartially by a state authority in decision-making may increase the likelihood of refoulement of the asylum claimant back to persecution, which, in some cases, would mean being sent back to torture or cruel, inhuman or degrading treatment or punishment.

2.2 Wide margin of appreciation permits decisions without reasons

Asylum claimants are more likely to be refouled where reasons for decisions that are made in processing their claims were not provided. Not releasing reasons for decisions that are made on asylum claims makes refoulement of the asylum claimant back to persecution more likely when asylum claimants are less likely to have the recourse to appeal the decision not knowing the case against them.45 Further, asylum claimants are less likely to challenge the grounds upon which the decision is based when they do not know what those grounds are. As a result, asylum claimants are left with no recourse, which increases the likelihood of them being refouled back to their country of origin to face persecution, when there is a higher chance of their application being rejected. As an example, an Austrian constitutional court held that the asylum court rejecting the asylum application failed to provide reasons as to why it assumed the claimant lacked credibility.46 This lack of reasoning in its decision to reject the claimant’s application was overturned by the Austrian constitutional court, and the asylum court was held to have acted arbitrarily by failing to provide reasons.47

The Federal Court of Australia have also held that it is the duty of the tribunals to give reasons.48 Further, there is not only a duty to provide reasons, but a duty to provide adequate reasons.49 The inadequacy of reasons can also be a ground for appealing a decision.50 When decisions are made to reject an application and reasons for the decision are not given, the lack of reasons has direct implications on refoulement back to persecution. For instance, asylum 42 Agiza v Sweden, Communication No 233/2003, Committee Against Torture, Thirty-Fourth Session, 20 May 2005, UN Doc CAT/C/34/D/233/2003 (2005).43 ibid (n 42) para 13.3.44 ibid (n 42) para 14; cited in Case of Othman (Abu Qatada) v The United Kingdom App No 8139/09 (ECHR, 17 January 2012) [149].45 SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 (Australia) [19] (SZKLO); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430: ‘the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law’ (Beale).46 Austria Constitutional Court (VfGH), Decision No U1268/2013, 16 September 2013.47 ibid.48 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 (Australia) [16], where it was stated that failure to provide reasons for decisions is an error of law.49 Beale (n 45), where the test for adequate reasons is three-prong: (i) the content of adequate reasons at first instance provides adequate ‘touchstones’ as to matters which need to be addressed at subsequent proceedings; (ii) the reasons in fact adequately explain the decision reached; and (iii) should there be deficiencies in the reasoning, the appellate court should be allowed to exercise its discretion whether to support the reasoning of the court at first instance.50 SZKLO (n 45) para 37.

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claimants who are rejected will not be allowed to remain in the recipient country, and will more likely be refouled back to their country of origin to face persecution. If states are allowed to exercise their discretion in a way that is ultra vires the margin of appreciation by not releasing reasons for decisions, asylum claimants will not have a recourse from refoulement. Thus, a wide margin of appreciation leads to refoulement where states act ultra vires the margin of appreciation by not releasing reasons when processing asylum claims.

Another example can be found in the case of AE v. Greece, where Alevi Kurd was ordered for detention by Greek authorities for a period of six to twelve months. Kurd’s detention led to a violation of his right to effective remedy in that he was denied the ability to challenge the decision to detain him when Greece did not release any reasons for the detention.51 The ECtHR held that the combination of the lack of due diligence in conducting eviction proceedings leading to prolonged detention in appalling conditions as well as the lack of specific reasons for the detention resulted in a violation of Article 5 paragraph 1(f) of the ECHR.52 In Mohamad v. Greece, the asylum claimant was detained on the basis of irregular entry into Greece and was ordered to be expelled to Turkey.53 The asylum claimant was a minor at the time but, despite being so, was kept in detention and was not given information as to reasons for this detention in Greece. Further, no information was given in his native language to explain his rights or the procedure involved.54 In order for detention to be justified, the ECtHR held that a specific test needs to be met, which involves the following considerations, where detention must be:

(i) Made in good faith;(ii) Directly linked to a ground of detention;(iii) Appropriate conditions; and(iv) Not exceeding what is reasonably necessary to meet the aim of detention.55

Applying the test to the case, the ECtHR found that the asylum claimant was not held in a centre tailored to his needs as an unaccompanied minor.56 Further, the claimant was kept in detention even after he reached the age of majority without any attempt by the Greek authorities to deport him.57 The ECtHR held that Greece was in violation of Articles 3, 13, and 5(1)(f) of the ECHR due to the arbitrary detention and the lack of due process accorded to the asylum claimant.58 As this case shows, the decision-making authority must ensure that reasons for decisions are released to the asylum claimant to prevent a violation of international or regional law. Where the exercise of discretion is done arbitrarily and ultra vires the margin of appreciation, it may increase the likelihood of the asylum claimant being refouled back to his or her country of origin to face persecution.

2.3 Wide margin of appreciation permits no appeal mechanisms

51 AE v Greece App No 46673/10 (ECHR, 27 February 2015).52 ibid (n 51); Article 5 paragraph 1f) of the ECHR states that “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition” in ECHR (n 3) art 5(1)(f).53 Mohamad v Greece App No 70586/11 (ECHR, 11 December 2014) (Mohamad). 54 ibid (n 53). 55 Mahmundi and Others v Greece App No 14902/10 (ECHR, 31 July 2012).56 Mohamad (n 53).57 ibid (n 53).58 ibid.

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States exercise their discretion when they examine asylum claims. States determine whether or not asylum claimants are accepted or rejected based on set criteria.59 Although the UNHCR provides guidance on applying the refugee definition, such guidance is considered “soft law” and therefore not binding on states.60 When states exercise their discretion, and the exercise of that discretion is ultra vires the margin of appreciation, states may decide not to have an appeal mechanism in place, resulting in a lack of effective remedy for the asylum claimant. For instance, a rejection at first instance without an effective appeal mechanism would mean that asylum claimants are stuck with a rejection at the state level as the last resort. In the EU context, it was held in MSS v. Belgium and Greece that a lack of an effective remedy is a contravention of the ECHR. 61 In MSS, the applicant faced a risk of refoulement back to persecution if returned to his country of origin without having his application considered seriously by Greek asylum officials.62 As MSS shows, a lack of effective remedy is a direct violation of international law when it leads to refoulement of the asylum claimant back to persecution. Therefore, where a state exercises its discretion ultra vires the margin of appreciation by not having an appeal mechanism in place, refoulement of the asylum claimant back to persecution will more likely occur.

Another example can be taken from the case of Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’immigration, where the asylum claimant was fleeing from slavery in Mauritania and applied for asylum in Luxembourg.63 The asylum claimant’s application was rejected and his deportation was ordered but he was not given a chance to appeal.64 The CJEU held that the Luxembourg government’s decision not to accord the asylum claimant a right to appeal its decision to refoule him was in direct contravention of EU council directive 2005/85/EC, which provided for an appeal mechanism.65 Accordingly, a decision-making authority must, in exercising its discretion, accord the asylum claimant an appeal mechanism to ensure that he or she is not refouled back to the country of origin to face persecution.

The Refugee Convention also provides that minimum safeguards must be given to refugees, which includes the right to appeal against expulsion orders.66 This position is also supported by the UNHCR in its commentary.67 The decision of the sending EU member state to transfer an asylum claimant to another member state should be reviewable by the asylum claimant. Further, reasonable notice of such decision, including reasons, should be made available to the asylum claimant before the transfer takes place.

59 United Nations High Commissioner for Refugees, ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (2011) UN Doc HCR/1P/4/ENG/Rev.3 (UNHCR Handbook).60 See (n 28).61 MSS v Belgium and Greece App No 30696/09 (ECHR, 21 January 2011) (MSS); ECHR (n 3) art 13.62 MSS (n 61).63 C-69/10 Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’immigration [2011] (Brahim).64 ibid.65 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, Official Journal of European Union, L 326/13, 13 December 2005 art 39(3)(c), where it was stated that “Member States shall, where appropriate, provide for rulesin accordance with their international obligations dealing with: the grounds for challenging a decision”; Brahim (n 63).66 Refugee Convention (n 2) art 32(3).67 UNHCR Note (n 10) para 14.

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3.0 WIDE MARGIN OF APPRECIATION PERMITS REFOULEMENT BY CREATING INCONSISTENT INTERPRETATIONS

3.1 Wide margin of appreciation permits multiple interpretations

Another problem of having a wide margin of appreciation is that the interpretation of provisions in international instruments may vary drastically from state to state. For instance, while the UNHCR Handbook provides guidance on the refugee status determination criteria for states to examine asylum claims, it is considered “soft law”, and therefore non-binding, and is not always followed. Moreover, both the regional and domestic courts have their own interpretations on what the law should be, thus creating an even more complex system, when states unilaterally, without input from asylum claimants, determine which of the interpretations to follow. Sometimes, unilaterally determining which of the interpretations to follow may mean states create their own procedures, which may lead to states acting ultra vires the margin of appreciation, resulting in either extremely narrow or extremely broad interpretations on who should be admitted as refugee. Where the interpretation is narrow, only asylum claimants who fit stringent, specific criteria are accepted as refugees, while an interpretation that is too wide may create a floodgates problem.68 Those who do not fit the stringent, specific criteria may experience a higher likelihood of being refouled back to their country of origin to face persecution.

In the EU context, the case of Hirsi Jamaa and Others v. Italy illustrates the variation on interpretation by states in determining their duties under international law.69 The ECtHR held that varying levels of interpretation can result where there are bilateral treaties between the first and subsequent recipient EU member states. Confusion arises when states do not know whether to follow their obligations under the Dublin Convention or the bilateral treaty.70 Having multiple interpretations may also result at the expense of asylum claimants, whose application may be successful at one EU member state, while rejected in another. Multiple interpretations also result in additional deficiencies in the Dublin System, polarizing asylum claims standards from one EU member state to the next, and encouraging asylum claimants to forum-shop, causing additional strain on the domestic systems of those member states.71

Multiple and inconsistent interpretations undoubtedly come at the expense of asylum claimants, who, without adequate knowledge of the rights to which they are entitled or the process involved in submitting an application, fail to properly substantiate their claims, increasing the likelihood of being rejected and, increase the likelihood for them to be refouled back to their country of origin where they face persecution.

3.2 Wide margin of appreciation permits removal of the right to be heard

68 Where too many asylum claimants are admitted as refugees into state territory, straining resources of that state, while not having a legitimate asylum claim in the first place. Nonetheless, these asylum claimants are admitted as refugees because the state’s interpretation of the provision is overly broad, so that almost everyone who applies is admitted.69 Hirsi Jamaa and Others v Italy App No 27765/09 (ECHR, 23 February 2012).70 Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities [1990] OJ C 254 (Dublin Convention).71 The false conception that by submitting the same application multiple times at multiple EU member states, the chances of success may increase.

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When states exercise their discretion to process asylum applications, they are given a wide margin of appreciation. This exercise of the margin of appreciation, when interpreted ultra vires, often means that states implement laws to fit their political agenda, rather than addressing real, practical needs.72 Many procedural safeguards are removed when states exercise their discretion in a way that is ultra vires the margin of appreciation. For instance, when states act ultra vires the margin of appreciation by processing asylum applications, the state undermines the effectiveness or completely eliminates appeal mechanisms. Other procedural safeguards that may be undermined as a result of states exercising a wide margin of appreciation include not releasing reasons for decisions when states rejects applications, and when states exercise bias when examining applications.

When states act ultra vires the margin of appreciation, the right to be heard is often not accorded to the asylum claimant. This is evident in contexts outside of the EU, such as the appeal of a United States Supreme Court (USSC) decision of Sale v. Haitian Ctr. Council, Inc. to the Inter-American Commission on Human Rights (IACHR).73 The USSC held that the move to return Haitians interdicted on the high seas back to their country of origin to face persecution was not a violation of the United States’ (US) obligation of non-refoulement when the Haitians were not within US territory during the removal.74 However, on appeal, the IACHR held that the US did violate the obligation of non-refoulement when the petitioners’ rights to seek asylum as well as their right to life, liberty, and security of the person were violated upon removal from the high seas without a meaningful opportunity to be heard.75 In this example, it is evident that refoulement back to persecution is deemed to have occurred when a state violates the fundamental human rights of the asylum claimants, and when the state does not have procedural safeguards in place to ensure proper and fair treatment of asylum claimants such as according them an opportunity to be heard. The Haitians were sent back to their country of origin where they undoubtedly faced persecution as a result of the unilateral actions by the US in exercising its discretion in a way that is ultra vires the margin of appreciation, to not process asylum claims in a proper manner. Accordingly, a wide margin of appreciation, exercised ultra vires, may involve the removal of the right to be heard in asylum claims procedure, leading to refoulement of the asylum claimant back to persecution.

In Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques, Boudjlida, an Algerian national, was asked to leave French territory within the period of a month after his application for residence permit in France was refused.76 Boudjlida was not given the opportunity to be heard in order to make his case against having his residence permit rejected by French authorities.77 The CJEU held that the right to be heard is part of the principle of the right of good administration, the purpose of which was to provide procedural safeguards for the asylum claimant. It was held in Boudjlida that even though the EU council directive did not specify under what conditions the right to be heard for a third country national must be given, the

72 See Organisation Mondiale Contre la Torture v Rwanda, African Commission on Human and Peoples’ Rights, Communication No 27/89, 46/91, 49/91, 99/93, 1996 (Organisation), where the government of Rwanda unilaterally declared Burundi refugees in its territory as a ‘national security risk’ in order to justify expelling them, to prevent massive influx of refugees, and to protect state interests. 73 Sale v Haitian Ctr Council, Inc, 509 US 155 (1993).74 ibid.75 Haitian Centre for Human Rights, Report No 51/96, Case 10.675, Inter-American Court of Human Rights (13 March 1997). 76 C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques [2014] (Boudjlida).77 ibid.

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right itself is a fundamental principle of EU law and therefore must be accorded.78 Further, the right to be heard must include allowing the individual to express his or her point of view on the legality of his stay.79 This case shows that the asylum official, or the residence permit granting authority, must afford the asylum claimant a right to be heard when deciding whether to accept or reject the application. In Boudjlida, the applicant was required to leave France without having the opportunity to challenge the decision to reject his permit application. If procedural safeguards such as the right to be heard are not accorded to asylum claimants similar to Boudjlida, there is an increased likelihood that they will be refouled back to their country of origin to face persecution.

The right to be heard as a minimum safeguard for the asylum claimant is also supported by the UNHCR in its commentary and is also codified in the Refugee Convention.80 The right to be heard is part of the due process which a state must exercise in making the decision to accept or deny the asylum claimant as a refugee in its territory.81 The duty to base state discretion on due process is necessary to ensure that the Refugee Convention state party does not arbitrarily expel a refugee who should be lawfully entitled to remain in its territory where a well-founded fear of persecution has been established.82 The danger of a lack of right to be heard is that the asylum claimant not only lacks the ability to make his or her case heard, but also cannot challenge the unilateral decision of the officer to remove him or her from the state’s territory, and cannot answer to any allegations against him or her.

3.3 Wide margin of appreciation permits lack of proper examination

A wide margin of appreciation enables a state to exercise its discretion in contravention against the discretion that should be accorded to the state under international law. For instance, states acting ultra vires the margin of appreciation may not properly investigate persecution claims alleged by asylum claimants. Where due process is not accorded the asylum claimant, the asylum claimant is not receiving fair and proper treatment, and therefore, legitimate applications are sometimes treated as illegitimate. For asylum claimants whose applications are not properly assessed for its truth and accuracy, their applications are more likely rejected, leading ultimately to refoulement back to persecution. In the case of Mohammad v. Austria, the ECtHR held that Hungary was responsible for systemic maltreatment of asylum detainees.83 The court pointed to the real risk of refoulement back to persecution as a result of failure to examine the merits of the asylum claimant’s applications. The emphasis is on the merits of the application, so that on one hand, where state discretion has been exercised too widely through improper examination of asylum claims, refoulement back to persecution of the asylum claimant may occur. On the other hand, if properly

78 See (n 35); EU Charter (n 35) art 41(2); Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98;A Third Country National is defined as: ‘any person who is not a citizen of the EU within the meaning of Article 10(1) of the Treaty on the Functioning of the European Union’ in European Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions’ (2011) Brussels, COM(2011) 847 Final, 3; Boudjlida (n 76).79 ibid.80 UNHCR Note (n 10) para 14; Refugee Convention (n 2) art 32(2) in the context of an expulsion order.81 UNHCR Note (n 10) para 32.82 ibid.83 Mohammad v Austria App No 2283/12 (ECHR, 6 June 2013).

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exercised with due process for the asylum claimant, refoulement back to persecution may be prevented.

Proper investigation of the merits of the application also involves an assessment by the sending EU member state on whether the recipient member state of the asylum claimant has sufficient resources and proper procedural safeguards to receive the asylum claimant without violating indirect refoulement. For instance, it has been emphasized by the International Commission of Jurists that Belgian authorities knew or ought to have known of the risk of ill-treatment in Greece when deciding whether to send asylum claimants to Greece as a “safe” third country in the case of MSS.84 In MSS, Belgium was held to be responsible for violation of Article 3 of the ECHR by sending the asylum claimant back to Greece and exposing him to a real risk of indirect refoulement, knowing that the asylum claimant would not be properly processed in Greece.85

The lack of proper investigation resulting in violation of non-refoulement is repeatedly emphasized in the ECtHR’s jurisprudence, particularly in Tarakhel v. Switzerland, where an Afghan couple and their six children were refouled back to Italy from Switzerland.86 In Tarakhel v. Switzerland, the ECtHR held that a thorough and individualised examination is necessary to ensure that the asylum claimant would not be arbitrarily removed from the state’s territory to face risk of torture or cruel, inhuman or degrading treatment or punishment.87 Accordingly, it is clear that, where states act ultra vires the margin of appreciation in their failure to properly investigate the merits of the asylum application, refoulement of the asylum claimant back to persecution will likely result.

The duty to properly examine an asylum application also involves the obligation to protect. When a state exercises its discretion to determine whether to accept or reject an asylum claimant in its territory as a refugee, the state must comply with its obligation to protect, by proper examination of the merits of the application, thereby ensuring that the asylum claimant is not refouled back to mass atrocities.

4.0 WIDE MARGIN OF APPRECIATION PERMITS REFOULEMENT BY PLACING STATE INTERESTS ABOVE THE INTERESTS OF ASYLUM CLAIMANTS

4.1 Wide margin of appreciation permits acceptance of asylum claims based on political reasons rather than on merits

States exercise their discretion when they process asylum applications and base their decisions on political agendas rather than on the merits of the application. For instance, in order to establish legitimacy, some states interpret their duty under international law to process asylum applications broadly. A broad interpretation will, on the political front, create the false impression that the state is in compliance with international law on the processing of

84 International Commission of Jurists, ‘Non-refoulement in Europe after MSS v. Belgium and Greece’ (2011) 2; MSS (n 61), where ECtHR held that the general country situation rather than individual circumstances of the asylum claimant is more significant when considering whether Belgian authorities “knew or ought to have known” of the risk of ill-treatment in Greece.85 MSS (n 61).86 Tarakhel v Switzerland App No 29217/12, (ECHR, 4 November 2014) (Tarakhel); Salvatore Fabio Nicolosi, ‘Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law’ (2015) 4 IHRLR 303-332, 319.87 Tarakhel (n 86).

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asylum applications. In reality, however, the state’s political self-interest in establishing legitimacy before the rest of the world often comes at the expense of asylum claimants. An example can be taken from the case of Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refuges in Guinea) v. Guinea.88 The African Commission on Human and Peoples’ Rights (African Commission) held that the Republic of Guinea was in violation of the African Charter and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa because of massive and systemic discrimination of Sierra Leonean refugees in Guinea.89 Guinean President Lansana Conté’s speech represented the state’s political self-interest to incite mass discrimination against Sierra Leonean refugees in order to re-establish legitimacy amidst the mass influx of rebel fighters and refugees across its borders from Sierra Leone and Liberia.

While it can be said that having a broader interpretation of a state’s duty to process asylum applications enable more asylum claimants to be accepted, at the same time, where these applications are accepted on the basis of political agendas rather than on the merits, the process becomes increasingly unpredictable for future claimants. For example, depending on the political agenda at the time, the state may choose to interpret its duty to process asylum applications either narrowly or broadly, leading to uncertainty and unpredictability for asylum claimants. In fact, the problem of ad hoc and varied state practice in implementing non-refoulement obligations within domestic laws has been cited by the UNHCR as problematic and thus limiting the predictability of the law.90 This uncertainly and unpredictability creates a real risk of refoulement of the asylum claimant back to persecution where the state rejects the application due to political reasons instead of on the merits.

4.2 Wide margin of appreciation permits bias in processing asylum claims due to failing to consider relevant factors and considering irrelevant factors

Another problem with having a wide margin of appreciation is that states do not restrict their discretion when considering asylum applications. When exercising their discretion on processing asylum applications, states acting ultra vires the margin of appreciation will inevitably consider factors that are irrelevant to the asylum application. Irrelevant factors that may be considered by an asylum official in making a decision may include consideration of the demeanour of the asylum seeker at the interview.91 Consideration of irrelevant factors not only detract the asylum officer from making a decision based solely on merits of the application, but may also prevent the officer from considering relevant factors. In M70/2011 and M106/2011 v. Minister of Immigration and Citizenship & Anor, the Minister of Immigration and Citizenship considered irrelevant factors when making its decision to

88 Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refuges in Guinea) v Guinea, African Commission on Human and Peoples’ Rights, Communication No 240/02, December 2004 (Guinea).89 African Charter on Human and Peoples’ Rights, OAU Doc CAB/LEG/67/3 rev.5 ILM 58 (1982) (adopted 27 June 1981, entered into force 21 October 1986) art 2, 4, 5, 12(5), 14 (African Charter); OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, UNTS 14691, OAU Doc CAB/LEG/24.3 (adopted 10 September 1969, entered into force 20 June 1974) (OAU Convention); Guinea (n 88) para 72-74.90 Guy S Goodwin-Gill (n 7) 285; Nicole Dicker, Joanna Mansfield, ‘Filing the Protection Gap: Current Trends in Complementary Protection in Canada, Mexico and Australia’ (2012) United Nations High Commissioner for Refugees, Policy Development and Evaluation Service, Geneva, 4.91 For instance, whether the claimant appears to be tearful, nervous, stressed or calm and collected at an interview has been cited as irrelevant when making decisions on asylum applications in United Kingdom Home Office, ‘Asylum Policy Instruction: Assessing Credibility and Refugee Status’, Version 9.0, 6 January 2015, 5.6.4.

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process an Afghan adult and minor intercepted on the high seas.92 Despite assessment from Australia’s Department of Foreign Affairs & Trade (DFAT) showing that Malaysia is not a party to the Refugee Convention, access to health care is beyond the means of refugees, and standards were inadequate in immigration detention centres, the Minister unilaterally considered Malaysia a “safe” third country to send the asylum claimants.93 The failure of the Minister to consider relevant factors, including the assessment made by DFAT, may eventually lead to indirect refoulement of the asylum claimants back to persecution where they cannot be properly processed in Malaysia. The Minister also considered irrelevant factors, including the asylum claimant’s Shi’a religion, and basing its decision on sending the claimant to Malaysia by suggesting that the claimant “would [not] be more at risk of harm than any other Shi’a Muslim in Malaysia”.94 When an officer fetters his or her discretion in arriving at a decision to reject the asylum claimant by failing to consider relevant factors and / or considering irrelevant factors, the asylum claimant is more likely to be removed from the jurisdiction of the state and refouled back to his or her country of origin to face persecution.

The travaux préparatoires of the Refugee Convention has also confirmed that an omission to act by the state party to the Convention leading to “the effect of returning a refugee to territories where he or she is likely to face persecution or danger to life or freedom” is a direct violation of refoulement.95 This conclusion is supported by the UNHCR.96 Where an asylum officer fails to consider relevant factors when deciding to reject an application, he or she has omitted to act in violation of non-refoulement. An omission to act is as severe as the act of returning the asylum claimant back to persecution itself.97 Accordingly, an asylum official must consider the merits of the application by considering relevant factors and ignoring irrelevant factors when making his or her decision.

4.3 Wide margin of appreciation permits biased decisions based on political labelling as “national security risk”

When states unilaterally decide to expel aliens in the name of a “national security risk”, they have exercised their sovereign prerogative to determine what constitutes “national security risk”. The labelling of any asylum claimant as a “national security risk” is labelling that is often based upon the political agenda of the state and not always on the merits of the application. When the domestic law that determines what constitutes a “national security risk” includes asylum claimants or refugees, international law is implicated. In the instances where states determine an asylum claimant or refugee is a “national security risk” and 92 M70/2011 and M106/2011 v Minister of Immigration and Citizenship & Anor, [2011] HCA 32 (Australia) para 3 and 5 (Decision of French CJ).93 ibid (n 92) paras 28, 39 and 40; art 33.1 of the Refugee Convention permits the removal of a refugee to a “safe” third country where there is no danger that the refugee might be sent from the “safe” third country back to persecution; Lauterpacht (n 2) 122, cited in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 (Australia) 172.94 ibid (n 92) para 39.95 VCLT (n 19) art 32; where it was stated that recourse to the preparatory works of a treaty is a supplementary means of treaty interpretation where the meaning of the treaty language is ambiguous or obscure; UNHCR Advisory Opinion (n 1) para 30; Refugee Convention (n 2) art 33(1).96 ibid.97 Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons, Memorandum by the Secretary-General, ‘Comments on Article 24 of the Preliminary Draft’ (1950) UN Doc E/AC.32/2 para 3: ‘turning a refugee back to the frontier of the country where his life or liberty is threatened [as a result of an omission to act] would be tantamount to delivering him into the hands of his persecutors’.

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therefore decide to expel the individual back to his or her country of origin to face persecution, it will be a direct violation of non-refoulement and a violation of international law. While Article 33(2) of the Refugee Convention provides for exceptions to non-refoulement obligations where asylum claimants are determined as “a danger to the community”, it is argued that what domestic law constitutes a “national security risk” should be carefully examined without resort to the political agenda of the state. Further, where the state unilaterally expels the individual without according the individual an opportunity to be heard, the state has acted ultra vires its margin of appreciation in breach of international law.98 In the example of Organisation Mondiale Contre la Torture v. Rwanda, the African Commission held that the government of Rwanda was in violation of the African Charter when it unilaterally decided to expel refugees in the name of “national security risk” without according them an opportunity to be heard.99 When asylum claimants are not given an opportunity to be heard, they are unable to defend themselves against allegations such as being labelled as a “national security risk”. If asylum claimants are unable to challenge the government’s decision to reject their application, they are more likely to be refouled back to their country of origin to face persecution. Accordingly, a wide margin of appreciation leading to the removal of the opportunity to be heard will increase the likelihood of refoulement of the asylum claimant back to persecution.

Another example may be taken from the case of HT v. Land Baden-Württemberg, which concerns the revocation of a residence permit granted to a refugee.100 The residence permit was revoked on the grounds of “compelling reasons of national security or public order” in Article 24(1) of EU Council Directive 2004/83/EC.101 It was held that before an asylum claimant (or refugee) can be considered a “national security risk”, he or she must be assessed individually based on specific facts, where the following elements must be present:

(i) The refugee’s own precise actions;(ii) The actions of the organization he or she is deemed to have supported; and(iii) Whether there are further elements or circumstances that create an enhanced

likelihood of threat to national security or public order.102

National security risk is an exception listed under the Refugee Convention from the obligation to observe non-refoulement.103 However, due to the need to protect the asylum claimant from persecution, the exceptions to non-refoulement must be interpreted restrictively and applied with caution.104 While states generally possess a margin of appreciation on interpreting what constitutes “national security risk”, there must be reasonable grounds for 98 Refugee Convention (n 2) art 32(2).99 Organisation (n 72) paras 1 and 34; African Charter (n 89) art 7.1: ‘every individual shall have the right to have his case heard’.100 C-373/13 HT v Land Baden-Württemberg [2015] (HT).101 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12 art 24(1).102 HT (n 100).103 Refugee Convention (n 2) art 33(2): ‘The benefit of the present provision [prohibiting refoulement] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country’ ‘(emphasis added)’; The application of this exception is, however, subject to ‘the caveat that they will not apply in the circumstances which the threat constitutes as a danger of torture or cruel, inhuman or degrading treatment or punishment or would come within the scope of other non-derogable human rights principles’ in Lauterpacht (n 2) 133.

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triggering the exception. Further, the state authority must “specifically address the question of whether there is a future risk; and [its] conclusion on the matter must be supported by evidence”.105 There must be a balancing between national security and state interests against the right of the individual asylum claimant from being refouled back to his or her country of origin to face persecution. Some academics such as Professor Atle Grahl-Madsen have given examples of what has in the past been regarded as “national security risk” activities.106 As indicated by the UNHCR and as the examples of Professor Grahl-Madsen show, labelling an asylum claimant as a “national security risk” requires a high threshold and evidence to substantiate such a claim. Accordingly, when exercising state discretion to determine what constitutes “national security risk”, the state should be careful not to act ultra vires, which will increase the likelihood of rejecting an application for asylum, and also increasing the likelihood of refoulement of the asylum claimant back to persecution.

PART C IMPLICATIONS & CONCLUSION

To end, this final section will examine the implications on non-refoulement of several recommendations to resolving the problems of having a wide margin of appreciation.

5.0 IMPLICATIONS ON REFOULEMENT

5.1 Curtailing State Sovereignty

As emphasized throughout this paper, having a wide margin of appreciation means that states can act ultra vires the margin of appreciation accorded to them by international courts and tribunals. In some cases, states exercising their discretion ultra vires the margin of appreciation by removing procedural safeguards, creating multiple and inconsistent interpretations, and placing state interests above the interests of asylum claimants. While it may be true that a wide margin of appreciation should be accorded to states based on the principle of state sovereignty, the margin of appreciation accorded should not allow the state to act ultra vires the doctrine to the extent of violating international law and non-refoulement obligations.107 Some may argue that states should be allowed to exercise their own discretion on matters of national interest and international courts and tribunals should not interfere with state sovereignty. However, state sovereignty should be curtailed where the exercise of the state’s sovereign prerogative leads to direct or indirect violation of international law and the absolute prohibition of refoulement, except national security exceptions found under Article

104 United Nations High Commissioner for Refugees, ‘UNHCR Note on the Principle of Non-Refoulement’ (1997) F: ‘in view of the serious consequences to a refugee of being returned to a country where he or she is in danger of persecution, the exception provided for in Article 33(2) should be applied with the greatest caution. It is necessary to take fully into account all the circumstances of the case and, where the refugee has been convicted of a serious criminal offence, any mitigating factors and the possibilities of rehabilitation and reintegration within society’ ‘(emphasis added)’ in Lauterpacht (n 2) 134.105 Lauterpacht (n 2) 135.106 Atle Grahl-Madsen, ‘Commentary on the Refugee Convention 1951, Articles 2-11, 13-37’ (1997) United Nations High Commissioner for Refugees, Division of International Protection, Geneva, 235-236: ‘[working] for the overthrow of the Government of his country of residence by force or other illegal means (e.g. falsification of election results, coercion of voters, etc.), or if [the asylum claimant] engages in activities which are directed against a foreign Government, which as a result threaten the Government of the country of residence with repercussions of a serious nature. Espionage, sabotage of military installations and terrorist activities are among acts which customarily are labelled as threats to national security’.107 The idea that states are sovereign equals and should have the discretion to act as they wish. The idea that states are sovereign equals is found in Charter of the United Nations (24 October 1945) 1 UNTS XVI art 2(1).

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33(2) of the Refugee Convention. To enforce absolute prohibition of refoulement, it may be necessary, in some circumstances, to curtail a state’s sovereignty in order to force the state into compliance with international law. In these instances, international courts and tribunals should interfere with a state’s sovereignty in order to safeguard individual rights. While historically, international courts and tribunals have been reluctant to impede on domestic implementation of international law, it may be necessary for the international courts and tribunals to intervene in order to safeguard the rights of asylum claimants who may otherwise be facing a combination of mass atrocities, violation of human rights, torture, or cruel, inhuman or degrading treatment or punishment if sent back to their country of origin.

5.2 Dichotomy between International Law Obligations and Domestic Implementation

The double standards which exist between international law obligations and domestic implementation of international law must also be addressed through a reform of the way in which states exercise their discretion when processing asylum applications. First, a refined definition of margin of appreciation is necessary in order to address what is intra vires and what is ultra vires the margin of appreciation. Second, the dichotomy that exists between the international and / or regional standard of asylum claims processing and the implementation of that regional standard into domestic legislation must be adequately addressed. By properly addressing the dichotomy between international standards and domestic implementation, the asylum claims procedures are standardized and more predictable, increasing the likelihood of successful applications, reducing the instances of rejected applications, and preventing refoulement of asylum claimants back to persecution. Finally, this mechanism must be put in place to limit the way states exercise their discretion to the extent necessary to ensure adherence to international law and non-refoulement obligations.

5.3 Incorporation of Margin of Appreciation into Dublin System

In the EU context, the margin of appreciation needs to be incorporated into the Dublin System.108 Regional harmonization including cooperation from all EU member states is necessary in order to ensure adherence to the principle of non-refoulement by limiting the exercise of state discretion to the extent that it does not violate the prohibition. While it is difficult to ensure perfect compliance to the prohibition or perfect cooperation among EU member states, the codification of the doctrine of margin of appreciation into the EU acquis will no doubt promote awareness of the doctrine and increase likelihood of EU member state compliance.109 Some may also argue that the deficiencies within the CEAS is intrinsic and systemic, however, codification of the doctrine of margin of appreciation into the EU acquis will give more room for the ECtHR and CJEU to incorporate the doctrine to review decisions of domestic courts.110 The decision of a sending EU member state to transfer an asylum claimant to a receiving EU member state should also be made considering the doctrine of

108 See (n 30).109 Vaughne Miller, ‘The EU’s Acquis Communautaire’ (2011) United Kingdom House of Commons Library, SN/IA/5944, 1 (Miller); The EU acquis is defined as: ‘the accumulated body of European Union law and obligations from 1958 to the present day. It comprises all the EU’s treaties and laws (directives, regulations, decisions), declarations and resolutions, international agreements and the judgments of the Court of Justice. It also includes action that EU governments take together in the Area of Freedom, Security, and Justice and under the Common Foreign and Security Policy’.110 See (n 8); System by which the EU attempts to harmonize the criteria, mechanisms and standards on asylum claims processing among EU member states.

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margin of appreciation so that the decision is not made arbitrarily or ultra vires to prevent indirect refoulement of the asylum claimant. Structural problems inherent in the Dublin System must also be addressed in order to prevent refoulement of asylum claimants back to persecution.

6.0 CONCLUSION

A large part of a state’s decision on processing asylum applications, including deciding whether to grant refugee status, is discretionary. A state’s discretion is governed by the doctrine of margin of appreciation under EU law. The margin of appreciation accorded to a state is limited, in that the state must act in good faith when making decisions, and such decision is reviewable by international courts and tribunals. Where the state acts ultra vires the margin of appreciation when deciding whether to admit an asylum claimant as refugee, it inevitably removes procedural safeguards while doing so, preventing the asylum claimant from having proper recourse against the unilateral actions of the state. Multiple and inconsistent interpretations also result when states act ultra vires the margin of appreciation in deciding whether to admit the claimant as refugee, creating additional problems for asylum claimants who do not know the proper procedure to follow or their rights under the law. A wide margin of appreciation also enables states to base their decisions on political agendas rather than on the merit of the applications, leading to bias in decision-making. A wide margin of appreciation therefore increases the likelihood of rejected applications, leading to eventual refoulement of the asylum claimant back to his or her country of origin to face persecution.

The problem of states having a discretion that is too wide needs to be addressed properly so that asylum claimants are not refouled back to persecution. In addressing this problem, the solution must be context-specific, giving consideration to legal system differences and geo-political circumstance of the state. Evidently, this problem cannot be addressed overnight. However, it is suggested that international courts and tribunals should play a bigger role in ensuring that the states do not exercise their discretion in an overly wide manner to the extent that they are unable to comply with non-refoulement, at the expense of the asylum claimants. International courts and tribunals have a duty of oversight and a duty to penalise states that act ultra vires the margin of appreciation in contravention of international law. In reviewing the decisions of domestic courts, international courts and tribunals should set the standard by which states must adhere to when exercising the margin of appreciation, including setting a standard for a well-defined margin of appreciation specific to the context of the state being reviewed. Although the process of refining what constitutes the margin of appreciation takes time, clarifying this area of the law will no doubt be beneficial to states trying to fulfill their international law obligations and to asylum claimants whose rights against refoulement must be protected.

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