Do refugees have to stay in the first safe country they reach?

“[The people trying to cross the Channel from France to the UK] are not refugees…

“Because no one needs refuge from France. Or any of the other numerous safe countries they’ve passed though [sic] en route…

“And who under the Geneva Convention should seek refuge in the first safe country they come to. If they were genuine, that’s what they’d do. They’re not genuine. Just illegal migrants on the take.”

Suzanne Evans, 3 January 2019

We’ve had help writing this article from Dr Violeta Moreno-Lax, Senior Lecturer (Associate Professor) in Law, and Founder of the Immigration Law Programme, at Queen Mary University of London.

The above comments, made by former UKIP politician and Brexit campaigner Suzanne Evans, relate to cases in 2019 of people trying to cross the Channel from France to England in small boats.

Ms Evans cannot know whether the people trying to cross the channel in recent months would be recognised as refugees. This is to be determined by immigration officials in whichever country reviews their asylum applications.

She is also incorrect to say that refugees should seek refuge in the first safe country they come to. Under the UN Refugee Convention, there is no obligation on refugees to do this—an interpretation which is upheld in UK case law. Those trying to cross the Channel can legitimately claim asylum in the UK if they reach it.

That said, there is some UK domestic law which allows 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, also be returned to the first EU country they entered, under an EU law known as the Dublin Regulation.

What is a refugee? And what is an asylum seeker?

The 1951 UN Refugee Convention (also known as the Geneva Convention) defines what a refugee is, what rights a refugee has, and the responsibilities of states towards refugees.

It 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 own country or (if they have no nationality) country of usual residence, and is unable or unwilling to return to it or seek protection from it.

Being recognised as a refugee gives you the right to not be returned to the country you have fled, as well as a minimum standard of rights and freedoms in a safe country.

An asylum seeker is someone who is in need, and search, of refuge. The right to seek asylum from persecution in other countries is a universal human right, set out in Article 14 of the UN Declaration of Human Rights.

Practically speaking, an asylum seeker is someone who has applied for refugee status (or another form of international protection) in another country, and is awaiting a decision on that application. They can only apply once they physically reach the country.  

In the UK, once an asylum seeker has had their application processed, they may receive permission to stay as a refugee for five years (after which they can apply to settle in the UK). They may also be given “permission to stay for humanitarian reasons” or other reasons, or their application may be rejected in which case, if no appeal is successful, they have to leave the UK unless they face a “real risk” of serious harm in the case of deportation.

There is no obligation on refugees to claim asylum in the first safe country they reach

Ms Evans is wrong to claim that, under the Geneva Convention, refugees should seek refuge in the first safe country they come to.

It contains no obligation “either explicit or implicit” for refugees to claim asylum in the first safe country they reach, according to immigration lawyer Colin Yeo.

This means that an asylum seeker can arrive in France (or any other country) before travelling to the UK and still legitimately claim to be a refugee. It is then down to the UK to review that application.

It doesn’t matter that these individuals are illegally crossing the channel

Ms Evans describes those seeking to cross the Channel to the UK in small boats as “illegal migrants”.

Although it’s certainly true that crossing the Channel without authorisation isn’t a legal way to enter the UK, Article 31 of the UN Refugee Convention states that refugees cannot be penalised for entering the country illegally to claim asylum if they are “coming directly from a territory where their life or freedom was threatened” provided they “present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

A lot depends here on how to interpret which country people are “coming directly from”. It could be argued, for instance, that as the people crossing the channel are coming directly from France—which is not the country they initially fled—they don’t have the right to claim asylum in the UK.

However, in 1999 a UK judge ruled that “some element of choice is indeed open to refugees as to where they may properly claim asylum.” The judge specified that “any merely short term stopover en route” to another country should not forfeit the individual’s right to claim refugee status elsewhere.

This means people can legitimately make a claim for asylum in the UK after passing through other “safe” countries. Once in the UK it is then up to the authorities to review that application.

While Ms Evans’ claim focused on the Geneva Convention however, as the House of Commons Library says: “Existing UK asylum laws give some scope to refuse to consider an application if it is judged that the person could have claimed asylum elsewhere.” This law means that an application could be found to be ‘inadmissible’ if, for example, another country is considered to be a ‘safe third country’ or another EU member state has already granted the person refugee status.

Ms Evans also says “no one needs refuge from France”. However, it cannot be stated with certainty that these individuals crossing the Channel were safe in France (or any other country) unless we know more about their backgrounds. For example, the European Court of Human Rights has previously found an EU country (Greece) to pose a risk to an Afghan refugee, therefore upholding the refugee’s right to seek asylum elsewhere (Belgium). There is also previous evidence of asylum seekers and migrants in France not being treated as they should be according to French law.

That said, the UK can sometimes return refugees to elsewhere in the EU

The UK could, under certain circumstances, send the people crossing the Channel on dinghies back to France or another EU country upon arrival. This is because of an EU law known as the Dublin Regulation.

Dr Sarah Singer, Senior Lecturer in Refugee Law at the Refugee Law Initiative, University of London told Full Fact that “there is nothing in the 1951 Refugee Convention which requires an asylum seeker to lodge a claim for asylum in the first, or indeed any country, they may pass through on their way to the country in which they eventually make a claim for asylum. Equally, there is nothing to prohibit an asylum seeker from lodging a legitimate asylum claim having passed through other 'safe' countries. 

“However, the absence of explicit guidance on this topic in the Refugee Convention gives States some scope to adopt a 'safe third country' approach and seek to remove/readmit an asylum seeker to another country to have their claim considered there. This is the basis for the EU's 'Dublin system'.”

Under the terms of the Dublin Regulation “there is no obligation on asylum seekers to claim in the first country they enter. Rather, they set out a hierarchy of criteria for states to decide which country should assume responsibility for considering the asylum application”, according to the House of Commons Library. Having said that: “one of the relevant factors for determining responsibility is which Member State the asylum seeker first entered or claimed asylum in.”

In practice, this means that upon arrival in the UK asylum seekers will have their fingerprints checked against an EU database known as Eurodac. The database allows immigration officials to see if an asylum seeker has launched an application in any other EU countries, or come into contact with the authorities there, and determine which country should process their claim.

There are some cases in which this rule doesn’t apply. For example, if an applicant for asylum has a family member who has already successfully claimed asylum in another EU country, then that country is where their claim should be reviewed. There are a number of further exceptions, including if the applicant is a minor, if several family members claim asylum around the same time, or if the applicant is dependent on the assistance of a parent or family member legally resident in the EU.