Kara Sears
There is no legal obligation for refugees to claim asylum in the first safe country they enter, nor is there a requirement for them to remain there. This is supported by the UN Refugee Convention, which gives refugees a degree of choice regarding where they seek asylum. However, certain countries, such as the UK, have domestic laws that allow them to refuse asylum applications if it is deemed that the applicant could have claimed asylum elsewhere. This is known as the safe third country concept, where asylum seekers can be returned to a designated safe country where their safety would not be jeopardized. The EU's Dublin Regulation is an example of this, allowing the return of refugees to the first EU country they entered.
| Characteristics | Values |
|---|---|
| Country with Safe Third Country laws | Canada, France, Germany, Spain, South Africa, Albania, North Macedonia, Switzerland, Greece, EU member states |
| Country designated as a safe third country | The US, Lebanon, Morocco |
| Treaties signed | 1951 Refugee Convention, 1967 Protocol, 1984 Convention Against Torture, Dublin Regulation (1990), Geneva Convention |
| Organisations | Amnesty International, Canadian Civil Liberties Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, UNHCR |
| Courts | Federal Court of Canada, Federal Court of Appeal, Supreme Court of Canada, Audiencia Nacional |
| Other | Asylum seekers, refugees, refugee claimants, asylum shopping, human rights |
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What You'll Learn
- There is no legal obligation for refugees to claim asylum in the first safe country they reach
- The UK is no longer part of the Common European Asylum System, which allows EU countries to return asylum seekers to another EU country
- The UK can refuse to consider an asylum application if it is judged that the person could have claimed asylum elsewhere
- The US has excluded refugee applications where the safe third country concept applies
- The safe third country concept was first developed in 1989 and is defined under the UNHCR Executive Committee Conclusion
There is no legal obligation for refugees to claim asylum in the first safe country they reach
Seeking asylum is a fundamental human right. However, there is a common misconception that refugees are legally obliged to claim asylum in the first safe country they reach. This is incorrect. There is no legal obligation for refugees to claim asylum in the first safe country they enter. The UN Refugee Convention (also known as the 1951 Refugee Convention or the Geneva Convention) does not require this of refugees, and UK case law supports this interpretation.
The Refugee Convention defines a refugee as someone who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion", has fled their country or country of usual residence and is unable or unwilling to return. The Convention gives refugees a degree of choice as to where they seek asylum. It is all about the refugee's relationship with their country of nationality, not other countries through which the refugee may have passed.
While there is no international legal obligation for refugees to claim asylum in the first safe country, there are domestic laws in the UK that allow the government to refuse to consider an asylum application if it is judged that the person could have claimed asylum elsewhere. Refugees who arrive in the UK after passing through another EU country can, under certain circumstances, be returned to the first EU country they entered under the Dublin Regulation. The UK Government's position is that refugees should claim asylum in the first safe country they reach. People who have passed through a safe country can be denied access to the UK asylum system, with the Home Secretary declaring their asylum claim inadmissible if the person "has a connection to a safe third State".
It is important to note that the majority of refugees worldwide do claim asylum in the first safe country they reach. According to the UN High Commissioner for Refugees global trends report for 2024, 67% of refugees were hosted in neighbouring countries. However, this does not mean that refugees are legally obliged to do so. The decision to seek asylum in a particular country may be influenced by various factors, such as colonial links or historical connections to a particular country.
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The UK is no longer part of the Common European Asylum System, which allows EU countries to return asylum seekers to another EU country
The Dublin Regulation, a piece of EU law, allows EU countries to return asylum seekers to another EU country, specifically the first EU country they entered. This is based on the idea that refugees should claim asylum in the first safe country they reach. However, there is no legal obligation for refugees to do so. The UN Refugee Convention, which defines what a refugee is, gives refugees a degree of choice as to where they seek asylum, and UK case law supports this interpretation.
The UK has long wanted to implement a system whereby refugees who reach its shores can be returned to a safe third country. This desire drove the creation of the Common European Asylum System (CEAS), which aims to standardise asylum law and processes across the EU to reduce incentives for asylum seekers to travel within the EU. However, following Brexit, the UK is no longer part of the CEAS or the Dublin Regulation. As a result, it can no longer return asylum seekers to other EU countries under this system.
Despite no longer being part of the CEAS, the UK continues to receive asylum applications. In 2024, there were 84,231 asylum claims made in the UK, with 108,138 people claiming asylum. This is a small number compared to other European countries, such as Germany, which received 250,550 asylum claims in the same year.
While the UK can no longer return asylum seekers to other EU countries under the Dublin Regulation, it has implemented its own system. This system aims to exclude those who have passed through a third country from the asylum process under certain circumstances. Additionally, the UK has negotiated an asylum partnership with Rwanda, allowing the country to receive asylum seekers who arrive in England by boat.
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The UK can refuse to consider an asylum application if it is judged that the person could have claimed asylum elsewhere
The UK's position is that refugees should claim asylum in the first safe country they reach. However, there is no legal obligation on asylum seekers to claim and remain in the first safe country they come to. The UN Refugee Convention (also known as the Geneva Convention) does not require this, and UK case law supports this interpretation.
The UK government has some scope to refuse to consider an asylum application if it is judged that the person could have claimed asylum elsewhere. This is based on UK domestic law. An application can be found inadmissible if another country is deemed a safe third country or if another EU member state has already granted refugee status. The UK has tried to implement a system where those who have passed through a third country can be excluded from the asylum system under certain circumstances. This is known as the Dublin Regulation. However, since Brexit, the UK has left the Common European Asylum System and the Dublin Regulation, and removals to safe European countries are no longer possible.
The European Court of Human Rights has previously found that an EU country posed a risk to an Afghan refugee, upholding their right to seek asylum elsewhere. There is also evidence that France, while generally considered safe, could potentially be a risk to an asylum seeker if the authorities fail to offer the treatment they are entitled to.
The UK government's position is that successive governments have wanted to deter asylum seekers from making dangerous journeys to the UK and deny or limit access to those from or who have passed through safe countries. The UK has attempted to implement a system of sending people who have passed through one safe third country to another, such as Rwanda. However, aside from Rwanda, no third country has agreed to accept asylum seekers from the UK in large numbers.
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The US has excluded refugee applications where the safe third country concept applies
The 'safe third country' principle is a concept in asylum law that allows countries to refuse refugee applications on the grounds that the applicant has already been granted protection by another country. This principle is central to the Dublin Regulation, which aims to streamline asylum management in Europe by allowing an asylum application to be processed by only one country.
In the United States, the Immigration and Nationality Act (INA) defines a refugee and determines eligibility for asylum. The US has a Safe Third Country Agreement with Canada, which came into effect in 2004. Under this agreement, refugee claimants must request protection in the first safe country they arrive in, unless they qualify for an exception. This agreement is part of the US-Canada Smart Border Action Plan and helps both governments better manage access to their refugee systems.
The US-Canada Safe Third Country Agreement does not apply to US citizens or habitual residents of the US who are stateless persons. It also does not apply to refugee claimants who meet certain criteria, such as having a valid Canadian visa or travel document, or facing the death penalty in the US or a third country. Additionally, the agreement considers the importance of family unity, the best interests of children, and the public interest.
While the safe third country concept provides a framework for managing refugee applications, it is important to note that the UN High Commissioner for Refugees (UNHCR) has warned against interpreting this principle too broadly. The UNHCR stresses that the first country of asylum and safe third country principles should be regarded as practices that have evolved between states rather than principles based on international refugee law.
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The safe third country concept was first developed in 1989 and is defined under the UNHCR Executive Committee Conclusion
The safe third country concept has been a source of controversy and debate, with critics arguing that it shifts the burden to less-developed states with less robust asylum systems. The European Union interprets the concept in light of Article 38 of Directive 2013/32/EU, and it is also a part of the Common European Asylum System (CEAS). The EU recently overhauled its interpretation by adopting the EU Pact on Migration and Asylum.
Individual European states, such as France, Germany, and Spain, incorporated safe third country laws into their legal systems before the Dublin Regulation took effect. Germany, for instance, amended its constitution in 1993 to include a list of safe third countries to protect itself against migration influxes from Eastern Europe.
The United States has also employed the safe third country concept, signing the Canada-United States Safe Third Country Agreement in 2002, which went into effect in 2004. This agreement stipulates that each party has a duty not to remove applicants until their refugee status claim has been adjudicated. The US has also initiated similar agreements with Mexico, Guatemala, El Salvador, and Honduras.
The safe third country concept is not a requirement of the UN Refugee Convention, and refugees can legitimately make a claim for asylum in a country after passing through other "safe" countries. However, some domestic laws, like those in the UK, allow governments to refuse to consider asylum applications if it is judged that the applicant could have claimed asylum elsewhere.
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Frequently asked questions
No, the UN Refugee Convention does not make this requirement of refugees. Refugees can legitimately make a claim for asylum in a country after passing through other "safe" countries.
A safe third country is a country where an asylum seeker has a genuine connection and where they should have applied for international protection. It is one of the four safe country concepts provided by EU law.
Yes, under EU law, refugees can sometimes be returned to the first safe EU country they reached. This is justified by the 'first country of asylum' principle, which states that a country can reject an asylum application if the refugee has already been granted protection by another country.
