UNHCR's Position on a Harmonized Approach to Questions Concerning Host Third Countries

UNHCR has taken the view that it is legitimate and useful for states to establish parameters for the purpose of identifying the countries where it would appear reasonable that asylum applicants be called upon to request asylum and which could reasonably be asked to assume responsibilities for the individuals concerned. Hence, the UNHCR Executive Committee has adopted two Conclusions on this issue: Conclusion No. 15 on Refugees without an Asylum Country and Conclusion No. 58 on the Problem of Refugees and Asylum-seekers who move in an irregular manner from a country in which they have already found protection. However, because of the extended scope given by some countries to the basic concept, UNHCR prefers not to refer to the Safe Country, or host third country, notion as a principle. Moreover, the Office discourages unilateral action by states to return asylum-seekers to countries through which they passed without their agreement, both because of the risk of refoulement and orbit situations but also because of the need for international solidarity and burden sharing.

1. & 2. Safe Country Lists and Accelerated Asylum Procedures

The examination of whether an asylum-seeker has, or could have, found protection elsewhere may precede the examination of the substance of the claim. The applicant should be given the possibility of rebutting any presumption that he has found or could have found protection. This can be done in an accelerated procedure. In order for that rebuttal to be effective, the applicant should have the possibility of obtaining a review surrounded by the same procedural safeguards as those recommended for procedures for manifestly unfounded claims, before rejection at the frontier or forcible removal from the territory. The assessment of the applicant's claim may, indeed, in this case be just as complex as the examination of the substance of the claim, and the consequences of an erroneous decision as serious as the return of a refugee to his country of origin where he risks persecution.

This is why the Office considers that no exceptions should be allowed to the principle that decisions should be made by the authority normally competent in asylum matters. In addition, the asylum-seeker should be permitted to remain in the territory until the first instance decision and the decision on the appeal, which he should have the opportunity to launch, have been made.

3.   Treatment According to Basic Human Standards

The term "protection" should be interpreted as involving, at a minimum, protection against return to situations of persecution, serious insecurity or other situations justifying the granting of asylum as well as treatment in accordance with basic human standards. The latter means that refugees must also be able to satisfy basic subsistence needs in the country of asylum, if necessary with assistance from the international community. Where enjoying the benefit of protection is conditional upon a positive decision on the asylum claim, the applicant should also be given access to an eligibility determination procedure with adequate procedural safeguards.

4.   Consent to Readmit

In the interests of avoiding refoulement and orbit situations and promoting international cooperation for the protection of refugees, the return of applicants who have found or who could have found protection in another country, should take place in accordance with arrangements agreed among the states concerned to determine which state is responsible for considering an application for asylum and for granting the protection required. Agreements providing for the return by states of persons who have entered their territory from another contracting state in an unlawful manner (readmission agreements) should not be used for this purpose unless they explicitly provide for the protection of refugees. If nevertheless applied to asylum-seekers, the application should have due regard to the special situation of the asylum-seekers.

In the absence of agreements determining responsibility for examining asylum requests, the explicit or at least implicit prior consent to readmit the applicant, consider the asylum claim in substance and provide effective protection is the only reliable means of ensuring non-refoulement and avoiding orbit situations. In any case, the authorities of the third state should as an absolute minimum be explicitly informed that the asylum claim has not been examined as to substance, in order to avoid that the asylum-seeker is being sent on to yet another country – possibly the country of origin – on the assumption that he has been rejected upon a substantive assessment of his claim to refugee status

5.   Mere Transit

Except where satisfactory arrangements have been made between states to ensure protection elsewhere, states should continue to be encouraged to accept asylum applications from asylum-seekers arriving at their borders provided they have not significantly interrupted their journey or sought or received asylum in another country. They should not be returned to a country where they have been in mere transit. Various periods have been recognized by states for this "mere transit" rule. According to Article 7 of the Dublin Convention mere transit in an airport is not considered to be entry into a country.

Underlying the "mere transit" rule are basic principles of international solidarity and burden sharing and also the idea that asylum should not be refused solely on the ground that it could be sought from another state, but only if it appears fair and reasonable because the asylum-seeker has a connection or close links with that state.

6. Admissibility to Third Countries

Similar considerations underlie the position the Office has taken on sending a person to a country through which he or she has not passed on the way to the country where he is requesting asylum, on the grounds that he could find protection there and would be admissible. The position of the Office is that an asylum-seeker should not be sent onward to a third country, unless he is a national of that country, has permanent residence there or has other relevant links.