Guatemala, asylum applications, and the safe third country concept

What happened?

On July 15, the Departments of Justice and Homeland Security issued an interim final rule denying asylum to certain aliens who seek asylum on the southern border of the United States without having sought protection in a third country through which they traveled and where such protection was available. The U.S. District Court for Northern California issued an injunction. On September 11, the Supreme Court lifted the injunction.

What countries have agreed to process asylum applications?

On July 26, President Trump, in the presence of Guatemala’s Interior Minister, announced that Guatemala has agreed to cooperate. Trump also announced by a Twitter post “that took Guatemalan politicians and leaders at immigration advocacy groups by surprise.” Persons attempting to transit Guatemala from El Salvador or Honduras would be affected. The Guatemalan Congress must approve the agreement, which it has yet to. The agreement is here.

Mexico as so far refused to cooperate.

“Safe third country” concept

An article published on August 23, generally challenging the legality of the final rule, interprets the rule as attempting to apply a “little-noticed provision of U.S. law allowing for the transfer of asylum seekers to a third country – 8 U.S.C. § 1158(a)(2)(A).” A Trump tweet on June 17 said that Guatemala was about to sign a safe third country agreement.

The article goes on: The “safe third country” concept, which first found multilateral expression among European States in the 1990 Convention Applying the Schengen Agreement and subsequent 1990 Dublin Convention, is contested in international law. The concept is said to apply when a person travels through a country where they could have applied for international protection, but either did not apply or sought protection and a determination was not made. The essential premise is that the country in question is capable of providing international protection and is willing to do so (or “is able and willing to provide international protection”).

The author asserts that the administration’s action are not in accordance with the safe country rule, but rather emulated what Australia has done with using Nauru as a holding pen.

The case of Turkey

This is likely the biggest use of the safe third party concept. The European Union pledged more than $6 billion to Turkey. In return, Turkey tightened up its border restrictions, and take back from Greece every migrant who travelled through Turkey and reached Greece. Turkey did cut migration flows to Europe drastically, but only a small proportion of migrants who continued to land in Greece have been sent back.Migrants still have the opportunity to apply for asylum in Greece, or for relocation to other European countries, and many do so successfully. From here.

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