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7 Eur. J. Migration & L. 35 (2005)
The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection

handle is hein.journals/ejml7 and id is 43 raw text is: European Journal of Migration and Law 7: 35-69, 2005.
© 2005 Koninklijke Brill NV. Printed in the Netherlands.                         35
The Asylum Procedures Directive and the Proliferation of Safe
Country Practices: Deterrence, Deflection and the Dismantling
of International Protection?
1. Introduction
Refugee protection is a cornerstone of international human rights law, being
enshrined in the 1951 Convention on the Status of Refugee and the 1967 New York
Protocol (hereafter 'the Refugee Convention') and encompassing norms of jus
cogens such as non-refoulement.' Article 14(1) of the Universal Declaration of
Human Rights provides:
Everyone has the right to seek and to enjoy in other countries asylum from
The difficulty with this apparently sacrosanct guarantee2 is that it is not clear who
is obliged to provide asylum. Governments dispute the existence of an individual
right to asylum in any particular country,3 at least not in a country of one's choos-
ing.4 Thus developed countries, led by the EU, continue to develop policies which
deflect asylum seekers elsewhere, while paying lipservice to refugee protection. Without
accessible and fair asylum determination procedures, the international system of refugee
protection, already weak, is undermined.
Fairness requires procedures which ensure outcomes that are accurate, efficient
and acceptable.' While errors will always occur in an administrative system, no sys-
tem can be considered fair if the probability of error is too high. In the asylum con-
text, where the cost of inaccurate decisions is likely to be the loss of human lives,
procedural rigour is all the more important. As Lord Bridge observed in the House
* Senior Research Fellow in EC and Public Law, Worcester College, Oxford. The author would like
to thank members of the ILPA European Subcommittee for their comments on a previous paper on the
Procedures Directive, which was a source of this article, in particular Professor Elspeth Guild, Professor
Steve Peers, Dr Bernard Ryan, Nicola Rogers and Dr Helen Toner.
I For a discussion, see Jean Allain 'The jus cogens nature of non-refoulement', International Journal
of Refugee Law (2002) p. 533.
2 The Declaration may or may not create binding legal obligations.
For example, Professor Guy Goodwin-Gill writes 'States have so far not accepted an obligation to
grant asylum to refugees.' The Refugee in International Law (Oxford OUP 2nd ed. 1996) p. 88.
4 Stephen Legomsky, 'Secondary Refugee Movements and the Return of Asylum Seekers to Third
Countries: The Meaning of Effective Protection', International Journal of Refugee Law (2003) pp. 567,
5 Stephen Legomsky, 'An Asylum Seeker's Bill of Rights in a Non-Utopian World', Georgetown
Immigration Law Journal (2000) p. 619.

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