Between Immigration and Policing: Cross Recognition

• DOI: http://doi.org/10.1111/j.1468-0386.2004.00210.x
• Published date: 01 March 2004
• Date: 01 March 2004
• Author: Andrew Nicol

Between Immigration and Policing:

Cross Recognition

Andrew Nicol*

Abstract: This article looks at the development of the UK’s policies towards asylum-

seekers who are to be returned to some country other than the one where they fear perse-

cution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some

of the problems which this policy created, but left others unresolved. Domestic legislation

has progressively reduced the opportunities for challenging safe third-country removals,

especially to an EU state. The incorporation of the European Convention on Human

Rights into UK law has generated new possibilities for challenging safe third-country deci-

sions where removal might damage physical or mental health. Articles 3 and 8 have been

invoked in particular. The Dublin machinery established ‘rules’ to decide which member

state was responsible for considering the asylum claim and the procedure to be followed.

The article examines why the UK courts have said that these provisions are not justicia-

ble in the English courts. Finally the article considers whether the experience with Dublin

provides any useful guidance as to the approach that will be taken to European arrest

warrants and extradition requests.

One of the consistent pre-occupations of the Member States in implementing an area

of Freedom Security and Justice has been the phenomenon of signif‌icant numbers of

people wishing to seek asylum in Europe. Quite how large these numbers are, what pro-

portion are genuinely in fear of persecution or seeking to migrate for other reasons,

and whether Europe would anyway benef‌it from their contribution are the subject of

regular debate, a debate that is often diff‌icult to disentangle from racist attitudes.

However, the UK has made clear that it would like to reduce the numbers and, where

possible, shuff‌le responsibility off to some other country. Hence its enthusiasm for

returning asylum-seekers to some ‘safe third country’. The cardinal principle in the

Refugee Convention1is the prohibition of ‘refoulement’. Article 33 of the Convention

says: ‘No contracting state shall expel or return (‘refouler’) a refugee in any manner

whatsoever to the frontiers of territories where his life or freedom would be threatened

on account of his race, religion, nationality, membership of a particular social group,

European Law Journal, Vol.10, No. 2, March 2004, pp. 171–181.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Barrister, Doughty Street Chambers, 10 Doughty Street, London WC1N 2PL

1‘Refugee Convention’ is used as shorthand for reference to the Geneva Convention 1951 and the New

York Protocol to the Convention of 1967. In its original form the Convention required a refugee to fear

persecution as a result of events prior to 1951. The Protocol removed this temporal limitation.