No asylum procedures in Rwanda – this is what a British ruling says. The procedure is difficult to implement under international law, explains an expert. An interview.
Berlin/London – The Supreme Court of the United Kingdom has struck down the Rwanda plans of the right-wing conservative government under Prime Minister Rishi Sunak. It is a judgment that “exclusively” shows that it is “not possible” to relocate asylum procedures to Rwanda, said Matthias Hartwig, international law expert at the Heidelberg Max Planck Institute for International Law, in an interview with Merkur.de from IPPEN.MEDIA.
It is precisely this point that is now fueling the German debate about asylum procedures in third countries outside the European Union. There are almost opposite views on the verdict, particularly between the CDU/CSU and the Greens. An attempt at classification.
The Greens accuse the Union of “loss of reality under international law”.
Most recently, the Prime Minister’s Conference gave the Federal Government the mandate to examine the handling of asylum procedures in third countries outside the EU. The demand came from the Union-led federal states. An idea that is associated in Germany with the former Federal Minister of the Interior Otto Schily. At the beginning of the 2000s, he called for an EU authority to examine who had a right to asylum in North Africa on the basis of the Geneva Refugee Convention.
And the ruling heated up the debate again on Thursday (November 16th): “Asylum procedures in third countries outside Europe are possible if they comply with the Geneva Refugee Convention and the case law of the European Court of Human Rights,” said North Rhine-Westphalia’s Prime Minister Hendrik Wüst Frankfurter Allgemeine Zeitung (FAZ). “Anyone who wants to outsource asylum procedures in this way suffers from a loss of reality under international law,” said domestic and European politician Julian Pahlke (Greens) to our editorial team.
In a way, both are right. International lawyer Hartwig would like to… IPPEN.MEDIA-Conversation “do not rule out” that asylum procedures in third countries are fundamentally possible. However, the federal government must “examine very carefully in individual cases where asylum procedures at European level” could take place.
Rwanda verdict is based on international law
According to Hartwig, the core of the judgment is the international law principle of “non-refoulement” from the Geneva Refugee Convention. This prohibits “refugees from being brought to the borders of territories where they are at risk of torture or inhumane treatment.”
The British Supreme Court saw this danger due to the human rights violations in the Rwandan asylum system documented by the United Nations Refugee Agency (UNHCR). According to Hartwig, the “non-refoulement” principle is anchored not only in the Geneva Refugee Convention, but also in the United Nations Anti-Torture Convention and the European Convention on Human Rights (ECHR).
“You can’t just deport people back to any country”
The ECHR in particular severely restricts the options for asylum procedures in third countries. Although it is generally possible to define safe third countries according to narrow criteria, but only according to narrow criteria. “You can’t just push people back to any country, that’s not possible,” the lawyer made it clear. The jurisprudence of the European Court of Human Rights is already “very ramified” and is clear that every person has the right to an “asylum procedure under the rule of law”.
It must also be ensured that humane treatment is guaranteed after an asylum procedure – even a negative one. Additionally important for the EU member states: There is an EU directive on asylum procedures that only allows deportations to countries with which those affected have “a relationship,” explained Hartwig.
UNHCR sends mixed signals
An idea that has been debated again and again would be to have the UN refugee agency UNHCR handle asylum procedures in third countries. In the British plans, Rwanda would have handled the procedures. However, the organization’s Geneva office clearly rejected the “outsourcing of protection obligations” in a paper from April 2023.
The German UNHCR representative Katharina Lumpp told the newspaper that the “primary responsibility” for the asylum procedures should remain with Germany ARD more open to the idea. However, under the premise that Germany will then accept those entitled to asylum. According to international law expert Hartwig, that would then be a classic “resettlement” agreement.
UNHCR proceedings could mean a loss of control for the EU
“Resettlement programs have existed in the past; The UNHCR proposes that people living in countries of first refuge be resettled in a third country; The third country must agree to the admission,” says Hartwig. He sees several problems with this process: It must be “ensured” that European states are “permanently prepared” to accept people. This is not yet guaranteed.
In addition, the process has so far been complex and covers only very few people compared to the needs. Hartwig seems doubtful as to whether the resettlement programs offer an adequate solution in view of the flow of refugees due to wars and climate change.
“Difficult waters” for the federal government
These international and European law standards would also have to be applied by “simple courts in Germany”. According to the case law of the Federal Constitutional Court, deviations from international treaties in the interpretation by international courts must be “well justified”. “If a court generously brushes this aside, it amounts to a constitutional violation.”
Last but not least, there is also the German Basic Law, which could cause asylum procedures in third countries to fail. On IPPEN.MEDIA-When asked whether the federal government could even agree to a plan based on the British model in the EU Council without violating the constitution, Hartwig replied: “That is very difficult waters”.
In principle, EU law takes precedence over national law. “This also applies to constitutions,” said Hartwig. However, there is case law from the Federal Constitutional Court and other European constitutional courts that states that EU law must not “impair” the “constitutional identity” of the member states.
In Germany, this is clearly defined by human dignity, which is anchored in Article 1 of the Basic Law and protected by the so-called “eternity clause”. Therefore, an EU solution to asylum procedures in third countries would not only have to stand before European courts, but also before the Federal Constitutional Court. (kb)
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