The right to choose country of asylum: The 1951 Convention and the EU’s Temporary Protection Directive

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Gamze Ovacık, Post-doc, Gothenburg Law School/Assistant Professor, Başkent Law School

31 August 2022

Whether asylum seekers have the right to choose the country in which they seek asylum has been a controversial issue among prominent international law scholars (see here, here, here and, in the context of the war in Ukraine, here.)

The activation of the EU’s Temporary Protection (TP) Directive has the potential to revive this debate because those fleeing from Ukraine to the EU have the right in practice – they can choose which Member State they wish to travel to and seek temporary protection in.

Building on an overview of the legal arguments for and against the right to choose the country of asylum under the 1951 Convention Relating to the Status of Refugees, this contribution to the ASILE Forum discusses whether Ukrainians’ right to choose their country of asylum in the EU is a step towards the formation of a regional customary norm.

The right to choose the country of asylum for people fleeing the war

When exploring the possible development of the right to choose your country of asylum as a regional norm in Europe beyond the Ukrainian context, it should be remembered that the Schengen regional free movement space excludes asylum seekers who reach the EU. Against this background, as agreed between EU and Ukraine, Ukrainian citizens can travel to and within the EU without a visa for a period of up to 90 days. Thus, they are free to enter the EU and specifically choose the Member State where they want to seek temporary protection.

This is recognised in paragraph 14 of the preamble of the European Commission’s March proposal for introducing temporary protection, emphasising that the balancing efforts between the Member States would be facilitated and pressure on national systems would be reduced if Ukrainians fleeing the war were able to join their family and friends within the existing Ukrainian diaspora across the EU. Additionally, the operational guidelines to facilitate border crossings at the EU-Ukraine borders that accompanied the Commission proposal, encourage flexibility and the non-application of sanctions to carriers that transport Ukrainian passengers who lack adequate documentation, allowing them to travel within the EU to reunite with family and/or friends.

This understanding was further reinstated with paragraph 15 of the preamble of the ensuing Council Decision introducing temporary protection which provides that article 11 of the TP Directive would not be implemented to enable free movement within the EU. This article limits the mobility of temporary protection beneficiaries within the EU by creating a readmission obligation for the Member State which granted temporary protection, in the case of an unauthorised stay in or entry attempt into another Member State.

Some discussions on the freedom to choose the country of asylum point to a distinction between the right to choose where one seeks asylum and the right to choose where one enjoys asylum. This is largely disregarded for the purposes of this contribution, because with the deactivation of article 11, both rights are applicable to asylum seekers from Ukraine.

Another point of discussion is whether it is possible for a person who has been granted temporary protection in one Member State to re-apply for temporary protection in another for any reason, such as joining family members or for employment purposes. This relates to the right to choose the country of asylum for people who have already achieved protection and to the overall concept of freedom of movement in asylum context.

According to article 15 of the TP Directive, changing countries is possible for family reunification purposes. However, the choice of where it would take place is left to the Member States and not to the individuals concerned.

Notwithstanding the explicit denial of the individual’s choice in the context of family reunification, there is no ‘first country of temporary protection’ rule adopted in the TP Directive. Article 11 creates the basis for being sent back to the initial country providing temporary protection but only in the case of an unauthorised stay or entry into another Member State.

Although this article was waived for Ukraine, the current policy paradigm does not favour the secondary movement of people who have already achieved protection. However, the option of re-applying for temporary protection in another Member State cannot be ruled out due to the lack of an explicit legal basis.

As for the relevance of temporary protection in the context of the right to choose the country of asylum, admittedly, those who fall under the TP regime are not technically referred to as asylum seekers or refugees per se. However, this distinction mainly comes from the impossibility of operating regular asylum procedures based on individual assessment in the case of a mass influx.

The TP regime was developed as a means to guarantee protection in such a situation through the categorical recognition of protection needs. This assumes that people who fall under this regime are in need of international protection and that they would most likely receive international protection status if they were subject to individual assessment. The close connection between temporary protection and asylum is also recognised in the TP Directive, starting with the specific definition of temporary protection in article 2. Thus, the right to choose the country of asylum is construed in a wider conceptual scope here to entail right to choose the country for seeking protection, covering people under temporary protection as well as those within asylum procedures.

Uncertainty under international law

The right to choose the country of asylum is neither openly provided for nor denied under international law. Although some of its provisions are used as a justification to support or refute the existence of such a right, as explained further below, the 1951 Convention does not contain an explicit provision on this issue.

In the decades following the 1951 Convention, the general practice was based on the assumption that the country responsible for providing asylum is the one receiving the asylum claim, leaving a margin of choice to the asylum seeker. The emergence of the concept of a safe third country in the early 1990s triggered an understanding that the right to seek and enjoy asylum does not necessarily include a right to choose where to enjoy asylum (for a fuller account see here, page 63).

This shift is also reflected in the transformation of the UNHCR EXCOM Conclusions. As principles for determining the country responsible for hearing an asylum claim, Conclusion 15 from 1979 identifies that an asylum seeker’s intentions as to where he/she wishes to seek asylum should be considered and asylum should not be refused only because it could be sought elsewhere. Ten years later however, Conclusion 58 took a step backwards from prioritising the asylum seeker’s agency of and denounced irregular movement from a country where protection has already been found. Together with certain provisions of the 1951 Convention analysed below, the defense of the safe third country notion and criticism of the right to choose the country of asylum often rests on this evolution. A further discussion over the legality  of the safe third country concept can be found here.

The argument against the right to choose the country of asylum rests on the presumption that the choice is arbitrary, based on socio-economic conditions rather than protection-related reasons, implying an abuse of the asylum system. On the other hand, proponents of this right point to legitimate reasons for being given a choice, such as reuniting with family, existing networks, knowledge of the protection system and further social, institutional and economic conditions as described here.

Denying the right to choose the country of asylum also creates social cohesion problems and potentially triggers further irregular movements.

A case for the right to choose the country of asylum

Legal principles dictate that freedom prevails in the case of a lack of explicit limitation. The limitation of a right is an exception and exceptions must be interpreted narrowly. Thus, the existence of a right to choose the country of asylum should be accepted if there is no rule explicitly prohibiting it. Relying on the lack of an explicit right to choose the country of asylum as a means to refuse it showcases a fantastic display of reverse logic – it is the lack of a right that needs justification, not the presence of it.

The 1951 Convention does not require the right to seek asylum to be used in a specific country. Moreno-Lax suggests that, as the conception of a right inherently consists of the negative right not to use it and a degree of freedom of choice as to how to use it, it naturally follows that an asylum seeker cannot be forced to exercise their right to seek asylum in a particular country.

Article 31 of the 1951 Convention reserving impunity for illegal travel to refugees coming directly from a state of persecution is often presented as proof of the existence of a rule on determining the country of asylum, requiring it to be sought as soon as arriving into a country where persecution is no longer likely. This interpretation isolates the reference to direct arrival from the much more obvious narrow context of penalisation due to illegal travel and stretches it further to provide a ground for refusing asylum.

This contradicts the general rule on interpretation in the Vienna Convention on the Law of Treaties, which requires article 31 to be interpreted in its particular context and in light of the object and purpose of the 1951 Convention. Indeed, if anything, as Costello and Ioffe have pointed out here, the reference to direct arrival recognises that refugees often have to travel through several countries before finding protection.

Moreover, there is one step missing in transforming a legal condition merely allocated for non-culpability of illegal entry into a basis for refusing the right to choose the country of asylum. Thus, the lack of an explicit obligation under international law requiring individuals to seek protection as soon as they are safe means that there is no legal basis to deny refugees the right to seek asylum in the country of their choice.

From a larger perspective presented more comprehensively here, mobility rights for refugees is supported by the spirit of the 1951 Convention which provides freedom of movement to asylum seekers once they are within the asylum system. Thus, some states’ refusal to grant such rights merely appears as a deliberate strategy to stop asylum seekers entering their territory.

Beyond legal arguments, the freedom to choose the country of asylum is also praised as a policy preference here by Francesco Maiani, as it would constitute an incentive to apply for asylum as soon as possible by ruling out the motivation to refrain coerced third country transfers.

Advocates for refugee rights underline the difficulty of justifying a policy that denies asylum seekers the right to choose the place where they believe they would have the best chance of protection and the best access to support from their communities  On top of this, it needs to be recognised that likelihood of recognition of protection need within an asylum system, cultural and social factors that reduce barriers to integration, combined with a desire to be with family or within particular social networks, are legitimate reasons for granting the right to choose the country of asylum. Allowing this freedom to the asylum seeker is also likely to increase their cooperation within asylum procedures and reduce the likelihood of irregular movements.

All in all, the points explained in detail above have been summarised perfectly by Hathaway and Neve: ‘The right of the asylum seeker to choose the state in which to solicit recognition of refugee status is a critical, if modest, compensation for the failure of governments to ensure a uniformly inclusive understanding both of the refugee definition and of legally mandated standards of protection across states’.

Rejecting the right to choose the country of asylum

Despite arguments in favour of the right to choose the country of asylum, the current policy paradigm is obviously against any recognition of such a right, as clearly expressed in the Commission’s 2018 paper ‘Managing migration in all its aspects: progress under the European Agenda on Migration’, with the proposition that ‘[asylum] applicants should not have a free choice as to the Member State in which they apply for international protection.’

In fact, since EU Dublin system and the Schengen regime were established in early 1990s, it appears to be a deliberate policy choice by the EU to deny such a right to asylum seekers.

As noted above, the legal argumentation against the right to choose the country of asylum relies largely on a lack of explicit recognition of such a right in refugee law and the formulation of article 31 of the 1951 Convention. It is argued that, as per the 1951 Convention, an asylum seeker’s only individual right in this context is the right not to be subject to a transfer contrary to the non-refoulement principle and the derivative right of admission to a country is dependent on the purpose of seeking protection.

On a similar note, in one case before the Irish Court of Appeal, while the element of choice embodied in the 1951 Convention as to the country of asylum was recognised, the verdict ultimately reduced it to simply protecting the asylum seeker against being forced to make an asylum application in a country of mere transit.

From a policy perspective, it has been argued that allowing the a free choice of country of asylum would motivate asylum seekers to travel to countries with better living conditions and economic prospects, creating an imbalanced burden on asylum systems. This argument disregards a lack of evidence as to how rational choice logic based on cost-benefit analysis helps to determine people’s movements, as explained more fully here (pages 11-12).

In current practice, contested protection elsewhere notions – namely the ‘safe third country’ and ‘first country of asylum’ concepts – mainly rely on the presumption that asylum seekers are required to seek refuge at the first instance possible based on the implication that asylum seekers do not have the freedom to choose their country of asylum.

Conclusion: Are we seeing the emergence of a new norm that grants the right to choose the country of asylum?

Admittedly, many causes célèbres of international refugee law point to the fact that the relatively limited horizon of the 1951 Convention falls short of responding to today’s intricacies, leaving us with the struggle to fill the gaps.

Being one of the notions of refugee law without specific regulation, the right to choose the country of asylum leaves much to the art of legal interpretation. This exercise of constructing the law is inevitably inspired, at least a little bit, by our vision of what kind of a world we want to live in.

Hence, it is possible to interpret the recognition of the right granted to Ukrainians to choose the country they wish to seek protection in as a step towards the recognition of this right as a regional customary norm reflecting state practice and the conviction of legal bindingness.

However, contradicting practices of protection elsewhere concepts that deny asylum seekers the choice also still stand. Consequently, the combination of Ukrainians’ visa-free status and the formulation of the Council Decision introducing temporary protection, although applicable to millions of refugees, could still be argued to indicate a specific practice rather than a general affirmation of the right.

Still, particularly in light of the fact that both the Commission and the Council have for the first time agreed that lifting intra-EU mobility restrictions helps Member States share responsibility for protecting asylum seekers, its potential to reignite a wider discussion on the right to choose country of asylum is undeniable.