Samenvatting

A refugee is a person who, for reasons of persecution (or fear hereto), is forced to leave his home and is outside of his home country. Although the great majority of the world's refugees find themselves in third world countries, also wealthier countries are dealing with considerable numbers of migrants and refugees arriving at their borders. As for Europe, especially the border countries of the EU over the years have received relatively high numbers of migrants and refugees.
The arrival of migrants and refugees in Europe is often conceived as a massive invasion which must be combated, and is placed in a context of security related issues, such as international crime, terrorism, and drug trade. This misconception can be dangerous when it comes to formulating laws to regulate the issue. Over the years, a vast amount of (inter)national laws have been designed for this aim. Within this body of International Refugee law, the principle of non-refoulement occupies a fundamental position.
Non-refoulement was first laid down in the 1951 Convention Relating to the Status of Refugees This Refugee Convention is still in force and constitutes the foundation of International Refugee Law. The non-refoulement principle protects people from being sent (back) to territories where they can face persecution, torture or other ill-treatment. This right to not be sent back to unsafe territories is directly related to many other fundamental human rights.
In theory, the European Union is an area of freedom, security and justice. Yet, a closer analysis of Spanish law and practices, which cannot be separated from European policies and practices in this field, shows that this area is very well protected and closed off for those who do not seem to belong. Despite of its importance in International (Refugee) Law, in Spain the non-refoulement principle is not always fully respected, and sometimes even frankly violated. In all these cases, human rights are sidelined in favour of political and economic interests that are often security related.
The right to a fair trial is one of the main fundamental human rights that is most closely linked to the non-refoulement principle. By providing for the right to free legal assistance, the right to a translator and the active involvement of NGOs and UNHCR during the asylum procedure, as well as the right to appeal and re-examination of the case, the Spanish laws seem to guarantee the right to fair trail and accordingly, protect asylum candidates against refoulement.
Nevertheless, these same laws undermine this right by including strict exclusion clauses; by imposing a time limit and geographical limitations; and by legalising re-admission agreements. All these measures somehow impede the access to the asylum procedure, do not guarantee the right to fair trial and risk sending persons (back) to territories where their life and dignity are at risk.
Also in the practical application of non-refoulement, in particular the right to a fair trial is at stake. The usual practice of interception of migrants at sea, or in the border areas around the Spanish enclaves Ceuta and Melilla, without giving them the opportunity to apply for asylum, deprives asylum candidates of their right to a apply for asylum and their right to a (fair) trial. Since the principle of non-refoulement should also apply extraterritorially, that is, anywhere where the Spanish authorities exercise their jurisdiction, this practice is in breach with this fundamental pillar of the international Refugee Law system.
Similarly, the measures employed by Spain in cooperation with neighbouring African countries, which result in the displacement of the outer borders and the externalisation of border controls,
seriously undermine fundamental human rights such as the right to apply for asylum, the right to a (fair) trial and the right to be protected against refoulement. These and more violations are repeated
in the case of stowaways, to whom all provisions that ensure a fair trial as laid down in Spanish law, do not apply.
Along with the right to a fair trial, the right to non-discrimination also plays a large role in the practical application of the principle of non-refoulement in Spain. The chances to enjoy the right to
a fair asylum procedure, are heavily dependent on the location of first encounter with (border protecting) authorities. Asylum seekers that make it to the inland enjoy more rights than those that
(are forced to) apply at the borders. Besides, if one is caught before even reaching the borders, the chances of having his rights respected are even slighter. The same right is violated by the application of readmission agreements. Nationals of those
countries with which Spain has come to a re-admission agreement have a far higher chance of being (immediately) deported, than asylum seekers and migrants of other nationalities do. The violation of this right to non-discrimination, in many cases leads to the violation of the principle of non-refoulement. Nowadays, law making and practice simply do not align with the humanitarian objectives that were
established in the Refugee Convention over sixty years ago. Even though these humanitarian objectives are also legal obligations, which in theory are highly valued by the international
community, the question is whether they are too idealistic, and incompatible with other values and laws, that in general seem to have precedence.