Should refugees claim asylum in the first safe country they reach?

Over and over again we hear that refugees should claim asylum in the first safe country the reach. There are variations on the theme. Genuine refugees claim asylum in the first safe country. Refugees should or even must claim asylum in the first safe country. The asylum seekers coming to the UK from France are really economic migrants, not refugees, because they didn’t claim asylum in France.

It is true that almost every asylum seeker who reaches the United Kingdom has travelled through safe countries to get here. We’re a small island situated to the far north of the European continent. Of course almost any refugee who arrives here has traveled through a safe country first. It is impossible for most people to get on a direct flight to the UK to claim asylum without lying to get the necessary visa.

This is one of the most recurrent tropes in refugee discourse and law and so we thought we would update and consolidate our posts on this issue for Refugee Week to try and give the topic the definitive treatment.

Most refugees claim asylum elsewhere

This is, of course, obvious when you think about it. Some people have described the United Kingdom as a “magnet” for refugees. This just is not true. The vast majority of the world’s refugees do actually claim asylum in the first safe country they reach. Of those that do not and instead set out for Europe, only a tiny number reach the United Kingdom.

According to the UN High Commissioner for Refugees global trends report for 2023, there are 31.6 million refugees under their mandate worldwide, excluding Palestinians, up from 29.4 million last year. 69% were hosted in neighbouring countries. The UNHCR data states that in 2023 the UK was hosting around 199,104 refugees, compared to far, far greater numbers around the world and indeed in Europe.

In the year 2023, a total of 67,337 asylum claims were made in the United Kingdom. Because some claims include multiple people, there were actually 84,425 people who claimed asylum.

Meanwhile, in the European Union a total of 1,129,800 people claimed asylum. 351,510 people made claims in Germany; 166,880 people made claims in France; 162,420 people claimed asylum in Spain.

How do real refugees actually behave?

Here on Free Movement we’ve been writing about immigration and asylum law since 2007. Unsurprisingly, this is not the first time that we’ve looked at whether refugees should claim asylum in the first safe country or why refugees might want to come to the UK.

Nick Nason wrote on the subject in 2017 in his piece Why don’t asylum seekers stop before they get here? I covered similar ground back in 2015 in a piece entitled Why do the “migrants” in Calais want to come to the UK? And Chris McWatters wrote on why refugees might not hang around in a massive refugee camp in his piece in 2015, What is life really like in Zaatari camp and how long should refugees be expected to wait there?

More recently, the Ukraine refugee ‘situation’ (it is very rarely if ever referred to as a ‘crisis’) illustrates the flaws in the argument that refugees should claim asylum in the first safe country they reach.

First of all, why should Poland and tiny Moldova host all of the Ukrainian refugees? They are already hosting a lot; why should they host all of them? Surely it is right for other countries to show some solidarity both with Ukrainians and with neighbouring countries and help to host some of those who have fled. Even if other countries are willing to contribute to some of the costs of hosting the refugees in the first safe countries, it is still a considerable responsibility to look after so many for an unknown and potentially indefinite period.

Secondly, why should Ukrainian refugees reach Poland or Moldova and then simply stop there? They would be sleeping on floors, sleeping rough and, perhaps, in large camps. There is no work for them, no proper schooling for their children and they may well have connections elsewhere.

Thirdly, what can be done to prevent refugees moving on anyway? Must Poland and Moldova be forced to try and detain and contain them to prevent them leaving? How would that actually work? If they do move on, must Poland and Moldova somehow be forced to accept the refugees back? How would that actually work and why should they agree to that when they are doing more than any other countries already?

Now, apply that more widely. Why should Pakistan and Iran host all the Afghan refugees? Why should South Sudan and Ethiopia host all the Sudanese? And so on.

The fact is that some refugees do not want to stay in the first safe country they reach, nor are they under any legal obligation to do so.

What does the Refugee Convention say about safe countries?

Politicians and some others repeatedly say that a genuine refugee would claim asylum in the first safe country he or she reaches. It is wishful thinking; it is what some in the UK would like the law to be. But we have seen that human nature does not work like that. Nor does the law.

There is no obligation in the Refugee Convention, either explicit or implicit, to claim asylum in the first safe country reached by a refugees. We have previously looked in detail at the definition of a refugee (if you want more check out our online course on refugee law) and it is entirely focussed on whether a person has a well-founded fear of being persecuted in his or her country or origin. Whether that person travelled through several countries before claiming asylum simply has no bearing on fear of persecution at home. It is all about the refugee’s relationship with their country of nationality, not other countries through which the refugee may have passed.

The Refugee Convention actually gives refugees a degree of choice as to where the seek asylum, in fact. Article 31 of the Convention protects refugees against prosecution for illegal entry to a receiving country in certain circumstances:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

This is not a right of entry. But it is protection against penalisation if the person does manage to evade the border guards and enter a country anyway.

This understanding has been recognised by the courts in England and Wales. In the landmark case landmark case of R v Uxbridge Magistrates Court (ex parte Adimi) [1999] Imm AR 560 Lord Justice Simon Brown held that refugees did not have to claim asylum in countries through which they pass to reach safety in order to be protected by Article 31:

… I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s Executive Committee (‘ExCom’), and the writings of well-respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway, & Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum.

Leading politicians in the United Kingdom have long wanted it to be the law that a refugee should be returnable to a safe third country if he or she manages to reach our furthest flung corner of Europe. And, in fact, there is such a system operating within the EU. But the UK is no longer able to participate in that system following Brexit.

The Dublin system

Back in the 1990s the EU set about creating the Common European Asylum System in order to standardise asylum law and process across the whole of the EU and thereby reduce incentives for asylum seekers to travel within the EU. If they would be treated broadly the same everywhere, the reasoning went, they would not seek to move between EU countries.

The development of the system was largely driven by the UK in order to rationalise the Dublin Convention, originally agreed outside the auspices of the EU in 1995. Latterly referred to as the Dublin system or the Dublin Regulation, it is now a piece of EU law. Where an asylum seeker has been fingerprinted in an EU Member State but then moves on to another EU Member State, under the Dublin system the asylum seeker can be sent back to the first country to have the asylum claim processed there.

For example, if an asylum seeker reaches Italy, is fingerprinted then travels to the UK and claims asylum, pretty much the first thing the Home Office used to do is take fingerprints, check them against the central Eurodac fingerprint database and then if a match is found notify the other country and send the asylum seeker back there pronto.

There is no legal duty or obligation on the asylum seeker to claim and remain in the first safe country and an asylum seeker who moves on is not breaking the law by doing so or disqualifying themselves from refugee status. But as a matter of administration, one EU country can send the asylum seeker back to another EU country under this system.

There used to over a thousand of these “Dublin removals” every year from the United Kingdom, although the number fell over time and was eventually exceeded by transfers in by children to join families here.

An inevitable consequence of the type of Brexit pursued by the UK government was that the UK left the Common European Asylum System and the Dublin Regulation. In short, removals to safe European countries were rendered impossible by Brexit.

The UK’s system since Brexit

Since Brexit, the UK government has tried to implement a system whereby those people who have passed through a third country can be excluded from the asylum system in certain circumstances. However the absence of anywhere to send people whose claims are deemed “inadmissible” has instead brought the asylum system to a grinding halt.

Why not just send them to France anyway?

We cannot just send refugees to France because the French government would not accept them. One country cannot simply send a person to another country without the receiving country’s permission. Other countries don’t do it to us and we don’t do it to them. It’s pretty basic.

Imagine, how would it work? If just placed on a boat, plane, train or automobile, the receiving officials would refuse to let the the person disembark or would just send them straight back to the UK. The UK would then face the same problem. Ferry terminals and airports would quickly start to fill with people caught in bureaucratic limbo. And what would be the consequences to our relationships with other countries?

UK border officials could physically take a person to the other country, perhaps, and then hand them over. But what happens when the receiving officials say “non”? Do the UK officials, um, just run away?

Intercepting dinghies in the Channel and then towing them to France likewise is also impossible, at least without endangering life. Landing the occupants of the dinghies in France without French permission would be tantamount to an actual rather than imagined invasion. I cannot imagine the British Government being very happy if the French did the same to us.

In summary…

So, to sum up, there is no obligation on refugees to claim asylum in the first safe country they reach, although many in fact do. The United Kingdom receives a tiny number of refugees compared to other countries in the EU and beyond. There are multiple reasons why refugees might want to move on from refugee camps or travel to find family members or better prospects. If they do so, and would face a well founded fear of being persecuted in their home country, they are still refugees. There is a system within the EU called the Dublin system under which refugees can be sent back to their point of entry to the EU to have their asylum claims processed there. But the United Kingdom lost access to that system due to Brexit and has not been able to come up with a functioning replacement.

This article was updated by Sonia Lenegan in June 2023.