Brief description:

The non-refoulement principle is the cornerstone of international refugee law protection. It safeguards the right of the asylum claimants and refugees from being sent back to territories where their lives or freedom would be threatened. The trend towards erosion of the principle has taken place especially through States’ disregard for, and curtailment of, the human rights of asylum claimants and refugees. These instances of violation of human rights included the use of safe third country concepts and Dublin transfers to, on the one hand, deter claimants from entering territory to access asylum, and on the other, shift the responsibility to process asylum applications elsewhere.

While States are free to regulate their external borders and manage immigration controls, international refugee and human rights law impose the bare minimum standards upon which States are to follow. The principle of non-refoulement as defined in international law sets the standard upon which States are to implement the principle into domestic legislation. Despite this, attempts by States to lower or to challenge this existing threshold continue to take place, especially in the Common European Asylum System, where there is an ongoing unequal distribution of responsibility for the processing of asylum applications.

This thesis uses the theory of global distributive justice to examine the European framework on responsibility-sharing as it relates to non-refoulement in three ways. First, global distributive justice requires the sharing of ‘burdens’ or ‘responsibilities’ among the people. This fair-sharing of responsibility requires the compliance with international standards including non-refoulement obligations. Second, global distributive justice reveals the inherent power imbalance between the State and the individual and between the citizen versus the non-citizen. This unequal distribution of justice is evidenced through State practices which result in a narrower interpretation of non-refoulement. Third, this unequal distribution of justice leads to an obligation and duty upon the State to redistribute or reallocate justice, through responsibility-sharing, equitably among citizens and non-citizens – with special considerations for asylum claimants and refugees, while upholding the principle of non-refoulement.

Methodology:

Using a doctrinal approach, my thesis undertakes a comparative analysis of how the United Kingdom (UK) and Germany address the international legal principle of non-refoulement in their legislation, regulations and jurisprudence concerning asylum seekers. I focus upon the UK and Germany because they are two of the largest asylum-receiving countries in the European Union (EU) during the time period under consideration. As such, their practices with respect to non-refoulement affect large numbers of asylum applicants and also likely influence how other countries interpret the non-refoulement obligation. I focus upon the doctrine of non-refoulement in the EU asylum regime because it has been largely understudied and under-theorized in legal literature.

Keywords: Common European Asylum System, European asylum law, european union, non-refoulement, responsibility sharing, Global Distributive Justice

Supervisor: Valerie Oosterveld

Added to catalogue on: 07-09-2018

Additional information:

Jenny Poon is a Ph.D. candidate at the Faculty of Law of the University of Western Ontario, a Barrister & Solicitor in Ontario, and a Senior Fellow at the Canadian International Council. Jenny was a Visiting Fellow at the Refugee Studies Centre of the University of Oxford, a former Visiting Researcher at the Max Planck Institute for Comparative Public Law and International Law, and was the recipient of the American Society of International Law International Refugee Law Essay Award and the EU Studies Association Haas Fund Fellowship. Jenny’s research examines non-refoulement as a norm in international and European law through a comparative analysis of United Kingdom and Germany. Jenny’s research interests include international refugee law, EU asylum law, migration control and human rights. Professor Valerie Oosterveld is her thesis supervisor.