Prof. Goodwin-Gill: ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’

On 16 February Professor Guy S. Goodwin-Gill presented the inaugural lecture of the Fondation Philippe Wiener – Maurice Anspach, Chaire W. J. Ganshof van der Meersch.  The lecture was entitled ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’.  The complete text of the lecture is available at this link: Goodwin-Gill: The Right to Seek Asylum-Interception at Sea and the Principle of Non-Refoulement.  The complete text also contains a helpful reference list.

I have reproduced several excerpts below:

“Looking at the interception and return measures adopted in the Mediterranean and off the west coast of Africa … one may rightly wonder what has happened to the values and principles considered fundamental to the Member States of the European Union….  [***]

… [I]t is all the more surprising when [European] governments, ministers and officials either pretend that the rules [- including Article 78(1) of the TFEU which requires the Union to develop a common asylum policy with regard to ‘any third country national requiring international protection and ensuring compliance with the principle of non-refoulement’ – policy which ‘must be in accordance with the Geneva Convention… and other relevant treaties’-] do not apply, or seek ways to avoid their being triggered.

In my view, the problems begin at the beginning, just as they commonly do also at the national level. A policy or goal is identified – in this case, reducing the number of irregular migrants, including asylum seekers, leaving the north African coast and heading for Europe – and then belatedly some attempt is made to bend implementation of the policy to fit in with principle and rule. A better approach, in my view, would be to begin with a clear understanding of the applicable law – the prohibition of discrimination, of refoulement, of inhuman or degrading treatment – and then to see what can be done by working within the rules.

Of course, this approach is premised on the assumption that States generally seek to work within the rule of law. It will not likely influence the State determined to deal with the migrant and the asylum seeker arbitrarily, and without reference to principle. Such cases must be confronted head-on, by way of judicial and political mechanisms of control.  [***]

… The problem, though, lies not in formal recognition of protection principles but, as ever, in operationalising the rules – in making protection a reality at the point of enforcement. On the plus side stands a substantial body of legislation: the Frontex regulation itself; the RABIT amendment, with its express insistence on compliance with fundamental rights and conformity with Member States’ protection and non-refoulement obligations; and the Schengen Borders Code, Article 3 of which requires the Code to be applied, ‘without prejudice to the rights of refugees… in particular as regards non-refoulement’. Add to this the April 2010 Council Decision supplementing the Code and dealing specifically with the surveillance of maritime borders and Frontex operations; it is currently being challenged by the Parliament on vires grounds, and it was also objected to by Malta and Italy, mainly for its proposal that in the last resort, rescue cases should be disembarked in the State hosting the Frontex operation. The Decision’s formulation of the applicable law in the matter of protection, however, is unremarkable, restating the principle of non-refoulement and the need to avoid indirect breach, but also providing for those intercepted to have an opportunity to set out reasons why they might be at risk of such a violation of their rights….  [***]

What do we know about either unilateral or Frontex-led interception operations so far? Not as much as we might expect as citizens of a democratic Union bounded by the rule of law and basic principles of good governance, such as transparency and accountability….  [***]

Exactly what Frontex does in an interception context has been questioned. Human Rights Watch has claimed that Frontex has been involved in facilitating interception, though this has been denied. Amnesty International and ECRE note that Frontex has stated that it does not know whether any asylum applications were submitted during interception operations, as it does not collect the data. How, then, should we approach what appears to be wilful ignorance? In the Roma Rights Case in 2004, discrimination on racial grounds was alleged in the conduct of immigration procedures by British officials at Prague Airport, which were intended to prevent potential asylum seekers leaving for the United Kingdom. There, too, the authorities did not keep any records of the ethnic origin of those they interviewed. Finding on the evidence that the government had acted in violation of relevant legislation, the House of Lords called attention to the importance of gathering information, ‘which might have helped ensure that this high-risk operation was not being conducted in a discriminatory manner…’

Given the secrecy attaching to interception operations, and the fact that no data are gathered or retained, it is reasonable to infer that some level of Frontex involvement has occurred, and that, absent evidence to the contrary, the relevant principles of international and EU law have not been observed.  [***]

… The object and purpose of EU operations in maritime areas, therefore, should be first and foremost to ensure protection, and secondarily to manage and prevent irregular migration….

In the absence of effective and verifiable procedures and protection in countries of proposed return, the responsibility to ensure protection remains that of the EU agency or Member State. In practice, this will require that they identify all those intercepted, and keep records regarding nationality, age, personal circumstances and reasons for passage. Given protection as the object and purpose of interception operations, an effective opportunity must be given for objections and fears to be expressed; these must then be subject to rational consideration, leading to the formulation of written reasons in explanation of the next steps. Where this entails return to or disembarkation in a non-EU State, a form of judicial control is required as a necessary safeguard against ill-treatment and the abuse of power – exactly what form of judicial control calls for an exercise of juristic imagination. In the nature of things, such oversight should be prompt, automatic, impartial and independent, extending ideally to the monitoring of interception operations overall….”

Click here or on the following link for complete text: Guy S. Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’

I thank Prof. Goodwin-Gill for permitting me to post the text of his lecture.