How the Safe Third Countries Concept Results in Prohibited Non-Refoulement and What Are the Limits of Forum Shopping in Migration?

Abstract

Contemporary refugee law builds on the 1951 Geneva Convention, but causes of forced migration not regulated by the Convention need to be addressed by national border and migration authorities. The right to asylum beyond the definition of the Convention does not entail the right of the migrant for refugee status but still entails the right to individual assessment of his legal status. This right remains relevant even if the respective state applies safe third country lists resulting in an almost instant rejection violating the non-refoulement principle. Naturally, states have the right to expel irregular migrants without legal grounds to stay. However, during this process, the state shall respect the prohibition of collective expulsion. Yet, as the ECtHR holds, if the lack of individual assessment derives from the culpable conduct of the alien – e.g. due to unauthorised en masse entry – the state can expel them without individual assessment.