1. For introduction of carrier sanctions legislation see Feller, E., “Carrier Sanctions and International Law” (1989) 1 I.J.Ref.L. 50–53Google Scholar; Cruz, A., Shifting Responsibility: Carriers' Liability in the Member States of the European Union and North America (1995), pp.5–7.Google Scholar

2. Enacted on 15 May 1987, the legislation applied retrospectively to persons arriving in the UK after 4 Mar. 1987.

3. Immigration (Carriers' Liability Prescribed Sum) Order (S.I. 1991 No.1497); Asylum and Immigration Appeals Act 1993.

4. Agreement on the European Economic Area (EEA) with Final Act and Declarations (Cm.2073).

5. Convention applying the Schengen Agreement of 14 June 1985 on the Gradual Abolition of Checks at Common Borders (1991) 30 I.L.M. 84–150.Google Scholar Ten EU member States are party to the Convention; Denmark, Finland and Sweden have observer status along with non-EU members Iceland and Norway; the remaining EU members (Ireland and the UK) are not involved.

6. EU immigration ministers reached political agreement on the Draft Convention in June 1991, although this text was not published. The text of a revised Draft Convention proposed by the European Commission in December 1993 is given in Visas and Control of External Borders of the Member States (1993–94) H.L. 78, 19 07 1994, pp.46–54.Google Scholar

7. See notably Feller, op. cit. supra n.1; Ruff, A., “The Immigration (Carriers' Liability) Act 1987: Its Implications for Refugees and Airlines” (1989) 1 I.J.Ref.L. 481.Google Scholar

8. 189 U.N.T.S. 150 and 606 U.N.T.S. 267.

9. 15 U.N.T.S. 295 including in particular Annex 9.

10. 213 U.N.T.S. 221, E.T.S. 5.

11. Infra Sections VII.A and VII.C.

12. For details of this process see Shutter, S., JCWI Immigration and Nationality Law Handbook (1995), pp.81–82Google Scholar; Amnesty International UK, A Duty Dodged: The Government's Evasion of its Obligations under the 1951 UN Convention on Refugees (Oct. 1991) (AIBS/RO/4/91); Glidewell, Panel, The Asylum and Immigration Bill 1995: The Report of the Glidewell Panel (1996), p.3.Google Scholar

13. The appendix to the Statement of Changes in Immigration Rules of 2 Apr. 1996 ((1995–96) H.C. 329) lists nationals requiring visas for entry, as does App.B of the UK Immigration Service's Passports and Visas: A Guide for Carriers (1995 edn).

14. Immigration (Transit Visa) (Amendment) Order of 5 Aug. 1996 (S.I. 1996 No.2065). See also infra n.95 and text for common EU visa list effective since 1 Apr. 1996.

15. Such agreements, whether bilateral or multilateral (such as the Schengen-Polish readmission agreement of 21 Mar. 1991), do not generally include a commitment that the merits of an asylum seeker's claim will be considered upon readmission. See also Marx, R., “Non-Refoulement, Access to Procedures, and Responsibility for Determining Refugee Claims” (1995) 7 I.J.Ref.L. 386.Google Scholar

16. Immigration Act 1971, Sched.2, paras.8 and 19. A forerunner of carriers' liability can be found in legislation passed in 1793 concerning aliens. This required masters of vessels arriving in the UK to declare the numbers, names and occupations of foreigners on board or face a fine of £10. See paper by Dallal Stevens, School of Law, University of Warwick, presented at conference on Refugee Rights and Realities, University of Nottingham, Nov. 1996.

17. Introducing the legislation in 1987, the then Home Secretary Hurd said: “The immediate spur to this proposal has been the arrival of over 800 people claiming asylum in the three months up to the end of February”: H.C Hansard, Vol.112, col.705 (16 Mar. 1987).

18. Farer, T. J., “How the International System Copes with Involuntary Migration: Norms, Institutions and State Practice” (1995) 17 H.R.Q. 72, 89.Google Scholar

19. See generally Amnesty International, Playing Human Pinball: Home Office Practice in “Safe Third Country” Asylum Cases (June 1995).Google Scholar

20. Higgins, R., “The United Nations and Former Yugoslavia” (1993) 69 Int.Affairs 465Google Scholar; Landgren, K., “Safety Zones and International Protection: A Dark Grey Area” (1995) 7 I.J.Ref.L. 436Google Scholar; E. D. Mooney, “Presence ergo Protection? UNPROFOR, UNHCR and ICRC in Croatia and Bosnia-Herzegovina”, idem, p.407; J. Thorburn, “Transcending Boundaries: Temporary Protection and Burden Sharing in Europe”, idem, p.459; Dowty, A. and Loescher, G., “Refugee Flows as Grounds for International Action” (1996) 21 Int-Secur-ity 43.Google Scholar

21. Webber, F., Crimes of Arrival: Immigrants and Asylum-Seekers in the New Europe (04 1996), pp.2–3.Google Scholar

22. Fullerton, M., “Restricting the Flow of Asylum-Seekers in Belgium, Denmark, the Federal Republic of Germany, and the Netherlands: New Challenges to the Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights” (1988) 29 Va.J.I.L. 92–93.Google Scholar

23. ILPA memorandum, (1993–1994) H.L. 78, supra n.6. Minutes of Evidence, p.5, para.4.28.Google Scholar

24. House of Commons, National Audit Office, Entry into the United Kingdom (1994–1995) H.C. 204, 15 Feb. 1995, p.3.Google Scholar

25. Administrative Delays in the Immigration and Nationality Department (1989–1990) H.C. 319, Minutes of Evidence, p.30, q.5.Google Scholar

26. Delays in the Immigration and Nationality Department (1992–1993) H.C. 320, 15 Feb. 1993, Minutes of Evidence, p.32.Google Scholar

27. “The ‘Wrong’ Passengers who Cost £30m”, Independent, 10 July 1991.

28. Infra n.68.

29. Cases are detailed in Amnesty Int., op. cit. supra n. 12. See also Cruz, , op. cit. supra n. 1, at p.44; (1993–1994) H.L. 78, 19 July 1994, Minutes of Evidence, p.18, para.63.Google Scholar

30. “BA ‘Kidnaps’ Three Asylum-Seekers”, Observer, 6 May 1990; “BA ‘Flies Suspect Entrants’”, Guardian, 7 May 1990.

31. “156 Refugees Questioned after ‘Flight from Iraq’”, Daily Telegraph, 4 Oct. 1990; “‘Asylum’ Flight Held at Gatwick”, Guardian, 4 Oct. 1990; “Airlines Face Fines Over ‘Refugees’”, Independent, 4 Oct. 1990.

32. “Lone Child Turned Away Because Airline Feared Fine”, Guardian, 3 July 1991.

33. The training session does not mention asylum seekers or refugees since officially the government links the Act with illegal immigrants and not asylum seekers: interview with HM Inspector Carriers' Liaison Unit, Middlesex, Mar. 1996. EU governments agreed in October 1996 to organise jointly training assignments for officers, including airline staff, who are locally responsible for documentation checks. Joint position of 25 Oct. 1996 on pre-frontier assistance and training requirements, (1996) O J. L281/1.

34. Ibid. Training is provided free of charge, although airlines are expected to meet trainers' transportation and accommodation costs. Trainees also receive a pamphlet entitled Passports and Visas: A Guide for Carriers, which includes information on acceptable travel documents, visas, visa exemptions and endorsements.

35. Interviews with various airline officials and with the chief executive of the Board of Airlines Representatives in the UK (BARUK), Mar. 1996.

36. H.C. 204, supra n.24, at p.34.

37. UK Immigration Service, Charging Procedures: A Guide for Carriers (1996 edn), p.10.Google Scholar

38. Infra Section III.C.2.

39. UK Immigration Service, op. cit. supra n.37, at p.11.Google Scholar

40. Letter from Carriers' Liaison Section, Croydon, 25 Mar. 1996. British Airways, the airline most affected by the Act, has AGC status at 66 airports out of the total of approximately 150 airports from which it flies.

41. Interview with BARUK chief executive, Mar. 1996. In 1995, for instance, British Airways was relieved of some £800, 000 in fines, representing roughly 25% of total fines levied against British Airways.

42. Infra n.61.

43. See Table 1.

44. Interview with HM Inspector, Carriers' Liaison Unit, Middlesex, Mar. 1996.

45. Supra n.26.

46. H.C. 204, supra n.24, at pp.31–32.Google Scholar

47. While the reduction in outstanding charges can be attributed in part to the substantial sums in fines waived in both 1993 and 1995, when programmes to improve arrears collection took effect, these waivers can also be attributed to the operation of the AGC system under which fines for destroyed documents are generally waived with respect to passengers arriving on flights from airports where a carrier has AGC status.

48. An IATA Central Authority survey indicated that 712 passengers arriving in the UK by Nigeria Airways were inadequately documented in the 12-month period to June 1995. This figure accounts for 7.34% of the 9,704 inadequately documented passengers arriving over that period, making Nigeria Airways the airline incurring the third largest number of fines.

49. Interview with Nigeria Airways station manager, Heathrow, Mar. 1996.

50. A House of Commons report, supra n.25, at p.xix, stated in 1990Google Scholar: “We are convinced that the Home Office should take vigorous action in the courts against carriers that are bad debtors and that it should consult with the Department of Transport about further appropriate action, such as refusal of landing rights.”

51. Interviews with HM Inspectors, UK Immigration Service, at Carriers' Liaison Unit, Croydon and Middlesex, Mar. 1996.

52. Interview with HM Inspector, Carriers' Liaison Unit, Croydon, Mar. 1996.

53. Ss.1(4) and 1(2) of the Act respectively.

54. idem, s.1(4).

55. Interview with HM Inspector, Carriers' Liaison Unit, Middlesex, Mar. 1996.

56. Interview with Aeroflot/Russian International Airlines official, Heathrow, Mar. 1996.

57. One immigration official acknowledged that there might be a problem of differing standards from port to port but maintained that the possibility of making secondary representations centrally resolved any unevenness: interview with HM Inspector, Carriers' Liaison Unit, Middlesex, Mar. 1996.

58. Infra n.85 and accompanying text.

59. Interview with KLM manager, Heathrow, Mar. 1996. KLM does not have AGC status at any airport.

60. Interview with British Airways government and industry facilitation manager, Heathrow, Mar. 1996. On flights from Europe destroyed documents accounted for only 27% of fines levied against British Airways in 1995 but on flights from West and East Africa they accounted for 69% of fines levied.

61. “Airline in Secret Check on Blacks”, Independent, 10 Nov. 1995; “Black, British and Under Scrutiny”, Independent, 10 Nov. 1995; “BA Says Sorry to Black Family”, Independent, 11 Nov. 1995; “BA Chief Apologises for Copying of ‘Ethnic Passport’”, Financial Times, 11 Nov. 1995; “Second Complaint over BA Checks”, Independent, 14 Nov. 1995.

62. “BA Pays Tens of Thousands in Racism Claim”, Guardian, 9 Oct. 1996.

63. Infra Section VILA for discussion on non-refoulement.

64. Parliamentary Assembly, Rec.1163(1991) on the arrival of asylum seekers at European airports, 23 Sept. 1991. See also Rec.1309 (19%) on the training of officials receiving asylum-seekers at border points, 7 Nov. 1996.

65. Statement of Changes in Immigration Rules (1993–1994) H.C. 395, para.334.Google Scholar

66. R. v. Secretary of State for the Home Department, ex p. Yassine and Others [1990] Imm.A.R. 354, 359–360.Google Scholar See also Cruz, , op. cit. supra n.1, at pp.73–74.Google Scholar

67. R. v. Yabu Hurerali Naillie and R. v. Rajaratnam Kanesarajah [1993] A.C. 674, 680.Google Scholar

68. Although airlines are asked to provide “denied boarding” figures, they do not always do so. (British Airways denied flight to 5,568 passengers in 1995 according to its government and industry affairs facilitation manager, Heathrow, Mar. 1996.) In any case the Immigration Service is reluctant to make such data public and these figures include passengers who inadvertently bring the wrong documentation with them or have not applied for the appropriate visa and generally go on to make their journey shortly afterwards.

69. Interview with volunteer who worked with Equilibre, a charity assisting refugees at Moscow airport, London, Mar. 1996. Telephone interview with UNHCR officer in Moscow, May 1996. See also Lawyers' Committee for Human Rights, Commitments without Compliance: Refugees in the Russian Federation (May. 1996), pp.15–16. Infra Part VII for analysis of State obligations towards refugees under international law.

70. Lawyers' Committee for Human Rights, Ibid.

71. See e.g. the question of Turkey‘s treatment of non-European asylum seekers or of Greek asylum law, which considers applicants only if they have come directly from their country of origin. See Amnesty International (British Section), Turkey—Selective Protection: Discriminatory Treatment of Non-European Refugees and Asylum-Seekers (Mar. 1994); Kirisci, K., “Is Turkey Lifting the’ Geographical Limitation'? The November 1994 Regulations on Asylum in Turkey” (1996) 81 J.Ref.L. 293–318Google Scholar; Amnesty International (German Section), Zur Sicherheit von Drittstaaten (Beispiel Griechenland) (19 Jan. 1994); Anto-niou, T., “Issues and Problems in the Greek law of Aliens”, in Schermers, H. G. et al. (Eds), Free Movement of Persons in Europe: Legal Problems and Experiences (1988), pp.139–153Google Scholar; and more generally Stavropoulou, M., “Refugee Law in Greece” (1994) 6 I.J.Ref.L. 53–62.Google Scholar

72. Explanatory memorandum to report on the arrival of asylum-seekers at European airports by Lord Mackie of Benshie, Parliamentary Assembly of the Council of Europe, 12 Sept. 1991, Doc.6490, paras.40 and 66.

73. Ruff, , op. cit. supra n.7, at p.485.Google Scholar

74. See Guidance Notes, November 1987; Charging Procedures, supra n.37 (both issued by UK Immigration Service the former are published in Macdonald, I. and Blake, N. J., Mac-donald's Immigration Law and Practice (4th edn, 1995), para.2.27 and analysed by Ruff, op. cit. supra n.7, at pp.495–496). The numbers affected by this practice are small. In 1995, 1, 295 asylum seekers were granted refugee status, representing 4.8% of the 27,005 decisions made that year, as against an average of 20% in 1985–89. The 4,410 asylum seekers granted exceptional leave to remain (a status according lesser rights and increasingly favoured by Western European governments) accounted for 16.3% of decisions made in 1995. At least until 1996 around 70% of all asylum applications were in any case made from within the UK rather than at the port of entry.Google Scholar

75. The contradictions surrounding this issue have been recognised by Canadian courts in a case concerning an Iranian family of three who flew in 1991 from Iran to Canada via India and Germany, using forged Italian passports on the second leg of their journey which they destroyed on the flight from Frankfurt to Toronto. See Cruz, , op. cit. supra n.1, at pp.24–26, and R. v. Deutsche Lufthansa Aktiengesellschaft (1994) OJ. No.1618, Action No.C17406, Ontario Court of Appeal, Toronto, 25 07 1994.Google Scholar

76. Even in cases which do not concern asylum seekers the carrier faces not only the prospect of a fine but also the possibility that a passenger wrongly denied passage may sue. Civil action of this nature has been taken in both Sri Lankan and Kenyan courts: interview with partner at Beaumont and Son (solicitors), London, Mar. 1996; Cruz, op. cit. supra n. 1, at p.44.Google Scholar

77. Supra n.16.

78. H.L. Hansard, Vol.572, col.308 (9 May 1996). In the case of TAROM (Romanian Airlines) these costs accounted for roughly one tenth of the fines levied against the airline (interview with TAROM station manager, Heathrow, 22 Mar. 1996). The interviewee was critical of Immigration Service handling of negotiations on detention and repatriations (as opposed to that on fines), although he acknowledged that once an airline came under particular scrutiny by the authorities and was thus “in the spotlight”, it was likely to receive tougher, more rigorous treatment.

79. Cruz, op. cit. supra n.1, at pp.17–22.Google ScholarSee also O'Keefe, C., “Immigration Issues and Airlines” (Dec. 1993-Jan. 1994) 59 J. Air Law & Commerce 357–392. However, the US Court of Federal Claims ruled on 28 Feb. 1996, in Aerolineas Argentinas and Pakistan International Airways v. U.S.A., that the INS had illegally obliged carriers to pay these costs. See US Court of Appeals for the Federal Circuit, docket no.94–5076.Google Scholar

80. Telephone interview with BARUK chief executive, Mar. 1996.

81. H. L. Hansard, Vol.572, cols.300–311 (9 May 1996). Letter to author from British Airways government and industry affairs facilitation manager, 28 Jan. 1997.

82. Although the majority of States with sea links to the UK are not migrant-generating States, migrants do succeed in reaching the UK by sea via overland routes across Europe.

83. Interviews with Carriers' Liaison Unit inspectors, Croydon and Middlesex, Mar. 1996.

84. S.1(1)of the 1987 Act.

85. Carriers' Liaison Section, Croydon, Apr. 1996.Google Scholar

86. House of Commons, Committee of Public Accounts, Entry into the United Kingdom (1994–1995) H.C. 355, 21 June 1995, p.x. See also H.C. 204, supra n.24, at para.2.34; interviews with Home Office officials, Mar. 1996.Google Scholar

87. Ruff, op. cit. supra n.7, at p.496.Google Scholar

88. For details see Cruz, op. cit. supra n.1, at pp.23–26.Google Scholar

89. Guidelines on the use of discretion by the Immigration Service were issued in 1987, supra n.74.

90. Interviews with TAROM (Romanian Airlines) station manager, Heathrow, and with immigration officer, Manchester airport, Mar. 1996. Flights departing at unsocial hours pose logistical problems at the point of departure, which is why a 24-hour information line for airlines is maintained at UK airports.

91. Interview with HM Inspector, Carriers' Liaison Unit, Middlesex, Mar. 1996.

92. Ibid.

93. H. U. Jessurun D'Oliveira, “Fortress Europe and (Extra-Communitarian) Refugees: Co-operation in Sealing off the External Borders”, in Schemers et al., op. cit. supra n.71, at p. 179. There are potential dangers in such a practice, as instanced by the unreported case of R. v. Secretary of State for the Home Department, ex p. H. (QBD July 1990) where there was evidence of immigration officers operating in foreign airports with the result that some asylum seekers were unable to board the plane to reach the UK (see Macdonald, and Blake, , op. cit. supra n.89, at p.404, para.12.78).Google Scholar

94. There are, however, data protection and civil liberties issues associated with such a development. The 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, to which the UK is a party, addresses some of these issues, but some of the concerns raised in connection with the Schengen Information System are also relevant here. See S. Mahmood, “The Schengen Information System: An Inequitable Data Protection Regime” (1995) 7 I.J.Ref.L. 179–200; B. Schattenberg, “The Schengen Information System: Privacy and Legal Protection”, in Schermers et al., idem, pp. 43–51, and P. Boeles, “Data Exchange, Privacy and Legal Protection especially regarding Aliens”, in idem, pp. 52–57.

95. Reg.1683/95/EC (1995) O.J. L164/1 and Reg.2317/95/EC (1995) O.J. L234/1.Google Scholar

96. H.C. 204, supra n.24, at p.34.Google Scholar

97. European Commission, Communication from the Commission to the Council and European Parliament on the Right of Asylum, SEC(91)1857, 11 Oct. 1991. See also European Parliament, Resolution on the Harmonisation within the European Community of Asylum Law and Policies of 18 Nov. 1992 which urged “that the ultimate power of decision on the interpretation of asylum law provisions in the Community Member States and the interpretation of the various conventions (the Convention on Human Rights and the Geneva Convention on Refugees) be transferred to an international court”: Res.A3–0337/92 (1992) O.J. C337/97.Google Scholar

98. Schermers, H. G., “Human Rights and Free Movement of Persons: The Role of the European Commission and Court of Human Rights”, in Schermers et al., op. cit. supra n.71, at pp.239, 242, 246Google Scholar; House of Lords Select Committee on the European Communities, Community Policy on Migration (1992–1993) H.L. 35, pp.9–10.Google Scholar

99. Home Affairs Sub-Committee on Race Relations and Immigration, Refugees (1984–1985) H.C. 72-iv. 17 Dec. 1994, Minutes of Evidence, p.71, para. 24.Google Scholar Earlier court rulings denied any such right.See R. v. Secretary of State for the Home Department, ex p. X (a Chilean Citizen) [1978] Imm.A.R. 73–75Google Scholar; Tekle v. Visa Officer Prague [1986] Imm.A.R. 71–74 (the latter case concerned an application made in Dec. 1983).Google Scholar

100. Letter from Asylum Policy Unit, Croydon, 30 Apr. 1996 (in which the “close ties” are defined as “usually family, but possibly periods of former residence here [in the UK]”) and interviews with officers in Asylum Policy Unit and Carriers' Liaison Unit, Croydon, Mar. 1996. Statistics provided in Asylum Statistics United Kingdom 1995, Home Office Statistical Bulletin, issue 9/96, 16 May 1996, by the Home Office Research and Statistics Department do not include applications made overseas for entry clearance to seek asylum in the UK. Explanatory note 14 gives partial information on such applications, of which five were made in 1995 and subsequently withdrawn. See also debate in H. C. Hansard, Vol. 112, cols.725–726 (16 Mar. 1987).

101. Randall, C., “An Asylum Policy for the UK”, in Spencer, S. (Ed.), Strangers and Citizens, A Positive Approach to Migrants and Refugees (1994), pp.212–213.Google Scholar

102. Letter from British Airways to author, 25 Mar. 1996.Google Scholar

103. H. L. Hansard, Vol.571, cols.1615–1631 (30 Apr. 1996). See supra n.81 for another proposed amendment concerning carriers' liability.

104. Article 20bis de la Loi numéro 92–190 du 26 février 1992 relative aux conditions d'en-trée et de séjour des étrangers en France. Other European States where fines are waived if an improperly documented passenger is granted leave to enter include Luxembourg, where the fine is waived if the passenger is admitted to the territory or if s/he requests asylum and the application is not dismissed as manifestly unfounded, and Portugal, where carriers are fined only if the passenger is refused entry. By contrast, in Denmark, carriers are in practice fined only for undocumented passengers who apply for asylum, although the Aliens Act 1983 as amended in 1986 makes persons or corporate bodies liable to a fine if they bring in “an alien who upon his entry is not in possession of the requisite travel document and visa”. See also Cruz, , op. cit. supra n.1, at pp.50–53.Google Scholar

105. Conseil constitutionnel, decision no.92–307 DC, 25 Feb. 1992. Author's translation reads: “this reason for exemption implies that the carrier restricts itself to apprehending the situation of the person concerned without having to undertake any further investigation; that [it]… should not be understood as conferring on the carrier any police powers in place of the public authorities; that it amis finally at preventing the risk that a carrier company will refuse to transport asylum seekers on the grounds that they do not have entry visas for France”.

106. Conversation with Asylum Aid co-ordinator, Mar. 1996.

107. ILPA memorandum, H.L. 78, supra n.6, Minutes of Evidence, p.8.Google Scholar

108. Committee of Ministers, Guidelines to inspire practices of the Member States of the Council of Europe concerning the arrival of asylum-seekers at European airports, Recommendation No.R(94)5, 21 June 1994, paras.6 and 7.Google Scholar

109. UNHCR Regional Bureau for Europe, An Overview of Protection Issues in Western European Legislative Trends and Positions Taken by UNHCR, European Series Vol.1, no.3, Geneva (Sept. 1995), p.40.Google Scholar Negligence on the part of the carrier is a key term in Annex 9 of the Chicago Convention, which includes provisions relevant to entry requirements and procedures, infra Section VII.B.

110. Set up in 1976 and 1986 respectively.

111. See agreements on common visa format and list, supra n.95 and text, and the restrictive Joint Position of 4 March 1996 on the harmonized application of the definition of the term “refugee” in Article 1 of the Geneva Convention (96/196/JHA) (1996) O.J. L63/2.

112. For details see Cruz, loc. cit. supra n. 1, and EU Council note to CIREFI Group giving a “Summary of replies to the questionnaire on the imposition of penalties against carriers who bring in foreign nationals not in possession of correct documents”, Brussels, 29 Sept. 1994 (24.10) (OR. f) 8499/1/94. In Luxembourg legislation was approved in Aug. 1995. In Spain carriers are expected to meet maintenance and return costs in connection with passengers who are refused entry and, under revised application rules to the Law on Aliens implemented in Feb. 1996, carriers will become liable to sanctions if they refuse to do so. (I am indebted to Maria-Teresa Gil-Bazo, Universidad de Deusto, Bilbao, for her enquiries on this latter issue.)

113. Supra n.5.

114. Supra n.6. For background see H.L. 78, supra n.6, at p.9.

115. (1991) 30 I.L.M. 425Google Scholar; (1990) 2 I.J.Ref.L. 3, 469.Google Scholar

116. D'Oliveira, , op. cit. supra n.93, at pp.179–181. Art.135 reiterates that provisions of the Schengen Convention apply subject to the provisions of the 1951 Convention and 1967 Protocol.Google Scholar

117. Keesing's Record of World Events (1995), Vol.41, pp.40523, 40562–40563, 40658–40659, 40744; (1996), Vol.42, pp.40972, 41057, 41067.Google Scholar

118. Draft Art.29 gives the ECJ jurisdiction “to give preliminary rulings concerning the interpretation of this Convention” and “in disputes concerning the implementation of this Convention, on application by a Member State or the Commission”.

119. Minutes of Evidence presented by W. de Lobkowicz, Head of Unit (external frontier controls, immigration and asylum), Directorate F, European Commission, H.L. 78, supra n.6, at p.67, para.392.Google Scholar

120. ILPA memorandum, idem, Minutes of Evidence, p.7, para.4.42.

121. However, asylum seekers are generally returned to the last safe country through which they passed rather than to the first country reached. See Amnesty International UK, A Briefing on the Asylum and Immigration Bill (5 Dec. 1995), p.11.Google Scholar

122. (1992)O.J.C191/1.Google Scholar

123. These include: “(1) asylum policy; (2) rules governing the crossing by persons of the external borders of the Member States and the exercise of control thereon; (3) immigration policy and policy regarding nationals of third countries: (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, …; (c) combating unauthorised immigration … by nationals of third countries on the territory of Member States”.

124. Within the broader context of the Council of Europe, the UK is party to the 1959 European Agreement on the Abolition of Visas for Refugees and the 1980 European Agreement on the Transfer of Responsibility for Refugees, although both concern Convention refugees. More directly relevant to carriers' liability are the 1991 Recommendation of the Parliamentary Assembly, supra n.64, and the 1994 Recommendation of the Committee of Ministers, supra n.108.

125. Obligations under the European Convention on Human Rights are covered infra Section VIII.B.

126. Ruff, , op. cit. supra n.7, at p.483Google Scholar; Cruz, , op. cit. supra n.1, at pp.73–76.Google Scholar

127. Report of the European Parliament Committee on Civil Liberties and Internal Affairs, Harmonisation within the European Communities of Asylum Law and Policies, rapporteur P. Cooney (A3–0337/92/PART B), p.5.

128. Randall, , op. cit. supra n.101, at pp.211–217.Google Scholar

129. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992), para.88.Google Scholar

130. Hathaway, J., The Law of Refugee Status (1991), pp.29–33Google Scholar; Tuitt, P., False Images: The Law's Construction of the Refugee (1996), pp.11–14, 67–69.Google Scholar

131. Hathaway, idem, p.32. See also UNHCR Executive Committee Conclusion 75(XLV)1994 on internally displaced persons; Goodwin-Gill, G., The Refugee in International Law (2nd edn, 1996), pp.264–268.Google Scholar

132. The UN Secretary-General appointed a Representative on Internally Displaced Persons, Francis Deng, in July 1992. See R. Plender, “The Legal Basis of International Jurisdiction to Act with Regard to the Internally Displaced” (1994) 6 I.J.Ref.L. 345–361Google Scholar; UN Commission on Human Rights, “Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, including the Question of the Programme and Methods of Work of the Commission of Human Rights, Mass Exoduses and Displaced Persons”, 2 Feb. 1995, UN Doc.E/CN.4/1995/50.Google Scholar

133. Further, Art.27 reads: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Although the 1969 Vienna Convention postdates the 1951 Geneva Convention, the former's provisions can be seen as applicable to the latter in so far as they are declaratory of customary international law.

134. Res.6(XXVIII)1977 and 22(XXXII)1981 II.A.2.Google Scholar

135. See also UNHCR, Brief Amicus curiae in Haitian Refugee Center, Inc. v. Gracey, 8 07 1985, pp.23et seq.Google Scholar, quoted in (1994) 6 I.J.Ref.L. 109.Google Scholar

136. Tomuschat, C., “A right to Asylum in Europe” (1992) 13 H.R.L.J. 257, 258.Google Scholar In the case of asylum seekers affected by carriers' liability, “the stage preceding determination” must logically extend from the border of the State from which the individual is seeking asylum to the point where this “determination” is made.

137. Goodwin-Gill, , op. cit. supra n.131, at p. 143.Google Scholar In the case of refugee stowaways on board ship, which has certain parallels with refugees seeking to reach by air a country where they may claim asylum, he argues, idem, pp.156–157, thai “a refusal to take account of their claims, either on the specious basis that they have not ‘entered’ State territory or on the (disputed) ground that they are the responsibility of the flag or any other State, would not suffice to avoid liability for breach of the principle of non-refoulement”.

138. Res.14(1967) on Asylum to Persons in Danger of Persecution (emphasis added).Google Scholar Text in Plender, R. (Ed.), Basic Documents on International Migration Law (1988), p.131.Google Scholar

139. UNHCR, The State of the World's Refugees: In Search of Solutions (1995), p.204.Google Scholar

140. Working document of UNHCR regional delegation for European Institutions on Current Asylum Issues: Harmonization in Europe, Brussels (Mar. 1992), para.6.

141. See Amuur v. France (European Court of Human Rights), infra n.156.

142. Evidence given by Assistant Under Secretary of State, Immigration and Nationality Department, Home Office, H.L. 78, supra n.6, at para.550, pp.89–90.Google Scholar

143. Letter to author from Asylum Policy Unit of the Immigration and Nationality Department, Croydon, 30 Apr. 1996. The last phrase of the passage quoted shows how closely the government links asylum and immigration policy issues rather than seeking to distinguish between the two. By contrast, in the Federal Republic of Germany the Administrative Court in Frankfurt ruled on 13 Oct. 1987 that even though the right to seek asylum cannot arise before the asylum seeker has actually entered the territory of another State, that State cannot prevent access to asylum procedures through administrative measures which hinder entry (Decision No.VI/3 H 2728/87). See also Danish Refugee Council, The Role of Airline Companies in the Asylum Procedure (1988), p.11.Google Scholar

144. R. v. Secretary of State for the Home Department, ex p. Robert Denzil Sritharan and Benet Marianayagam [1993] Imm.A.R. 184–186.Google Scholar

145. Sale v. Haitian Centers Council, Inc. et al. 125 L.Ed:2d 128–167 (1993).Google ScholarSee also features on the case in (1994) 35 Harv.I.L.J. 1–57Google Scholar; (1994) 6 I.J.Ref.L. 69–109Google Scholar; Koh, H. Honju, “The ‘Haiti Paradigm’ in United States Human Rights Policy” 103 Yale L.J. 2391 (1994)Google Scholar; Koh, H. Honju, “Refugees, the Courts and the New World Order” Utah Law Rev. 3, 999 (1994).Google Scholar

146. Sale, idem, p.152.

147. Ibid.

148. Inter-American Human Rights Commission Haitian Refugee Cases, Case No.10.675, Inter-Am.C.H.R. OEA/Ser/L/V/II.93, doc.36 (17 Oct. 1996).

149. Goodwin-Gill, op. cit. supra n.118, at p.142.Google Scholar

150. The Haitian Interdiction Case 1993 Brief Amicus curiae presented by the Office of the UNHCR and reprinted in (1994) 6 I.J.Ref.L. 86 (emphasis added).Google Scholar

151. Supra Section III.C.3.

152. As of 31 Jan. 1997, 128 States had ratified the Geneva Convention. See Multilateral Treaties Deposited with the Secretary-General, United Nations, NY ST/LEG/SER.E as available on http://www.un.org/Depts/Treaty/ on 9 Feb. 1997.

153. Feller, , op. cit. supra n.1, at pp.58–59; Cruz, op. cit. supra n.1, at pp.74–75.Google Scholar

154. Supra Section III.A.

155. Immigration Act 1971, Part I, s.11(1).

156. Amuur v. France Eur.Ct.H.R., 25 June 1996 (17/1995/523/609).Google Scholar

157. idem, para.52.

158. Judgment (quoted in idem, para.22) of the Tribunal de grande instance, Paris, 25 Mar. 1992, concerning three other asylum seekers held in Roissy airport, Paris. State Counsel appealed against this ruling but the case was later struck off the list on procedural grounds. Legislation was in any case passed in France in July 1992 and Dec. 1994 to regulate the holding of aliens in such zones.

159. The UNHCR Handbook, supra n.129, at para.189, states: “It is obvious that, to enable States parties to the Convention and to the protocol to implement their provisions, refugees have to be identified”, even if determination procedures are not “specifically regulated” under the Convention.

160. Infra Section VII.C.

161. Torremans, P., “Extraterritoriality in Human Rights”, in Neuwahl, N. A. and Rosas, A. (Eds), The European Union and Human Rights (1995), pp.295–296.Google Scholar

162. Under Art.38 of the Chicago Convention a “standard” is described as being “practicable and necessary to facilitate and improve some aspect of international air navigation… and in respect of which non-compliance must be notified by States to the ICAO Council in accordance with Article 38”.By contrast. States need only endeavour to conform to “recommended practices”.

163. Annex 9 as published by ICAO, 15 Nov. 1990.

164. UNHCR, op. at supra n.140, at para.7.

165. ICAO Facilitation Division meeting, Apr. 1995, report on agenda item 4, p.33.Google Scholar

166. UNHCR, op. cit supra n.140, at para.7.

167. Under the earlier para.3.36.1, which was designed to lessen the problem of “refugees in orbit”, a contracting State was obliged to accept for examination someone returned from another State only where he was found to be inadmissible if he had “previously stayed in their territory before embarkation, other than in direct transit” and would itself “not return such a person to the country where he was earlier found to be inadmissible”. (Current State practice of returning inadmissible individuals to a third State even if this State was used only in transit would appear to go against this provision.) A “note” reaffirms the principle of non-refoulement, declaring that nothing “is to be construed so as to allow the return of a person seeking asylum in the territory of a Contracting State, to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

168. (1949) 49 A.J.I.L. Supp. 127.Google Scholar Art.14(1) guarantees the “right to seek and to enjoy in other countries asylum from persecution”. The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights reaffirmed this right in June 1993 (UN Doc.A/CONF.157/24 (part 1) 13 Oct. 1993).

169. Sohn, L. B. in Sohn, B. and Buergenthal, T. (Eds), The Movement of Persons across Borders (1992), pp.114–117.Google Scholar For critique of this position see Meron, T., Human Rights and Humanitarian Norms as Customary International Law (1989), pp.82–84.Google Scholar

170. For a brief overview of State practice in this area see Farer, op. cit. supra n.18. Arguably States ‘readiness to grant asylum during the Cold War was as much for political reasons as from a belief in States’ legal obligation to do so.

171. See generally “Status of the Universal Declaration in Customary International Law”, International Law Association Report of the 66th Conference, Buenos Aires (1995), pp.537–549.Google Scholar See also Brownlie, I., Principles of Public International Law (4th edn, 1990), pp.570–571Google Scholar; Kamminga, M. T., Inter-State Accountability for Violations of Human Rights (1992), p.133Google Scholar; Tomuschat, , op. cit. supra n.136, at p.258Google Scholar; Verdross, A., “Jus Dispositivum and Jus Cogens in International Law” (1966) 60 A.J.I.L. 59.Google Scholar

172. International Law Association, idem, p.547.

173. (U.N.G.A. Res.2312(XXII).) For the status of G.A. resolutions generally see Sloan, B., “General Assembly Resolutions Revisited (Forty Years Later)” (1987) 58 B.Y.I.L. 39.Google Scholar Most recently, the ICJ's advisory opinion of 8 July 1996 on the legality of the threat or use of nuclear weapons (General List No.95, para.70) states: “General Assembly resolutions, even if they are not binding, may sometimes have normative value.They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.”

174. From the point of view of the UK this issue is less directly relevant since the UK is a party to the 1951 Convention, although if the customary international law obligation not to refoule extends beyond that under the Convention this argument becomes relevant once again.

175. International Law Association, op. cit. supra n.171, at p.547.Google Scholar

176. Goodwin-Gill, op. cit. supra n.131, at p.167.Google Scholar

177. idem, p.143. However, Hathaway, op. cit. supra n.130, at pp.25–26, takes a more cautious view, arguing that “Goodwin-Gill's assertion of a right to protection against refoule-ment overstates the extant scope of customary international law in regard to non-Convention refugees”. He nevertheless conceded “a right to be considered for temporary admission, whether by formal procedure or administrative discretion, on the basis of a need for protection”, arguing that “customary international law precludes the making of decisions to reject or expel persons who come from nations in which there are serious disturbances of public order without explicit attentions being paid to their humanitarian needs”.

178. Report of UNHCR 40 UNGAOR Supp. (No.12), p.6, UN Doc.A/40/12(1985) (“non-refoulement has now come to be characterized as a peremptory norm of international law”). Cartagena Declaration on Refugees (Geneva, UNHCR, 1984) conclusion 5 (“[non-refoule-ment] is imperative in regard to refugees … as a rule of jus cogens”).

179. S.702 of the Restatement issued by the American Law Institute. See the European Court of Human Rights case Soering, infra n.216; Torture Committee cases Matumbo v. Switzerland (1994) H.R.L.J. 164–168Google Scholar and (1994) 1 I.H.R.R. 3, 122–129Google Scholar and Khan v. Canada (1994) H.R.L.J. 426–432Google Scholar and (1995) 2 I.H.R.R. 2, 337–347Google Scholar; Hannum, H., The Right to Leave and Return in International Law and Practice (1987), p.10Google Scholar; Kamminga, , op. cit. supra n.171, at pp.134, 163–169Google Scholar; Meron, , op. cit. supra n.169, at pp.92–93.Google Scholar

180. Hailbronner, K., “Non-Refoulement and ‘Humanitarian Refugees’: Customary International Law or Wishful Thinking?” (1986) 26 Va.J.I.L. 857.Google Scholar

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183. Bronée, S. A., “The History of the Comprehensive Plan of Action” (1993) 5 I.J.Ref.L. 534Google Scholar; D. McNamara, “The Origins and Effects of ‘Humane Deterrence’ Policies in South-East Asia”, in Loescher, G. and Monahan, L. (Eds), Refugees and International Relations (1989), p.123.Google Scholar

184. See e.g. Akehurst, op. cit. supra n.182, at p.19.Google Scholar

185. Supra n.149 and accompanying text.

186. Art.38(1), ICJ Statute.

187. Simma, B., “Bilateralism and Community Interest in the Law of State Responsibility”, in Dinstein, Y. (Ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), p.825.Google Scholar

188. European Convention on Human Rights, Art.26.

189. R. v. Chief Immigration Officer, ex p. Bibi [1976] 1 W.L.R. 979, 984.Google ScholarSee also R. v. Home Secretary, ex p. Bhajan Singh [1976] Q.B. 198, 207Google Scholar; Amies v. Inner London Education Authority [1977] 2 All E.R. 100, 103.Google Scholar

190. Garland v. British Rail [1983] 2 A.C. 751, 771.Google ScholarSee also Mortensen v. Peters 1906 14 S.L.T. 227–235 (High Court of the Justiciary)Google Scholar; Chung Chi Cheung v. R. [1939] A.C. 160, 167–168Google Scholar where Lord Atkin ruled: “International law has no validity save in so far as its principles are accepted and adopted by our domestic law … On any judicial issue [the courts] seek to ascertain what the relevant rule is and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes.” For exposition of the doctrines of “incorporation” and “transformation” concerning the place of international law in English courts see Lord Denning MR in Trendtex Trading Corporation v. Central Bank of Nigeria [1977] Q.B. 529, 553–554.Google Scholar

191. Ex p. Salamat Bibi, supra n. 189. Lord Denning MR stated, idem, p.984, that “if there is any ambiguity in our statutes, or uncertainty in our law, then these courts can look to the Convention as an aid to clear up the ambiguity and uncertainty”. Similarly in A-G v. BBC [1981] A.C. 303, 352Google Scholar Lord Fraser ruled that where domestic law was uncertain “Courts in the United Kingdom should have regard to … decisions of the European Court of Human Rights.”

192. R. v. Secretary of State for the Home Department, ex p. Brind [1991] 1 A.C. 696, 761–762.Google Scholar He also warned against incorporation of the Convention “by the back door”.

193. R. v. Secretary of State for the Home Department, ex p. Sivakumaran [1988] 1 A.C. 958, 990.Google Scholar (This case went on to the European Court of Human Rights under the name of Vilvara-jah, infra n.219.)

194. Home Office Sub-Committee on Race Relations and Immigration (1984–1985) H.C. 72ii, Refugees, Minutes of Evidence, 17 Dec. 1984, p.123, Q.203.Google Scholar Waddington also reported in a Home Office memorandum that the “Home Office… proceeds on the basis that the [Immigration] Rules in effect incorporate relevant parts of the [Geneva] Convention [and Protocol]” H.C. 72–iv, supra n.99, at p.70, para.18, 17 Dec. 1984.Google Scholar

195. R. v. Home Secretary, ex p. Bugdaycay [1987] 1 A.C. 514, 532.Google Scholar In this case the rejection of three asylum applications was upheld but that of a fourth, by Mr Musisi, was quashed on the grounds that there had been a defect in the decision-making process.

196. Sivakumaran, supra n.193.

197. R. v. Secretary of State for the Home Department, ex p. Chahal [1995] 1 W.L.R. 526. Judge Neill ruled, idem, p.545, that “notwithstanding Article 33(2) of the Convention of 1951 the Secretary of State ought to balance the gravity of the risk to national security if the person concerned were to remain against all the other circumstances, including any compassionate circumstances and any likely risk of persecution if that person were deported”. Infra n.223 for ruling by the European Court of Human Rights on this case.

198. Brind, supra n.192, at p.748.Google Scholar

199. Bugdaycay, supra n.195, at p.537.Google Scholar

200. Paras.16, 64, 138 and 150 of 1980 Statement of Changes in Immigration Rules, H.C. 394. Although the Immigration Rules do not have statutory effect, they “are framed on the basis that the Secretary of State will give effect to [the Convention and Protocol's] provisions”. See Sivakumaran, supra n.193, at p.962.Google Scholar

201. Asylum and Immigration Appeals Act 1993, s.2.

202. Meron, , op. cit. supra n.169, at pp.114–117.Google Scholar However, customary international law is unlikely to be able to be used to overturn contrary precedents. See Duffy, P. J., “English Law and the European Convention on Human Rights” (1980) 29 I.C.L.Q. 585, esp. 599–605Google Scholar; Cunningham, A. J., “The European Convention on Human Rights, Customary International Law and the Constitution” (1994) 43 I.C.L.Q. 537.Google Scholar

203. Trendtex, supra n.190, at p.554.Google Scholar

204. Diplock, LJ in Salomon v. Commrs of Customs and Excise [1967] 2 Q.B. 116, 143.Google Scholar

205. (Emphasis added.) Arts.5(1)(f) and 16 both specifically refer to aliens.

206. Cyprus v. Turkey Appls. Nos.6780/74; 6950/75 (1975) XVIII Ybk. 82, 118. The Commission further observed, idem, p. 118, “that nationals of a State, including registered ships and aircraft, are partly within its jurisdiction wherever they may be, and that authorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property. In so far as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged.”

207. X. v. Federal Republic of Germany Appl. No.1611/62 (1965) VIII Ybk. 158, 163.Google Scholar

208. Cyprus v. Turkey, supra n.206, at pp.118–120 and in general Appl.8007/77 D&R 13 (1979) 85, 148–149.Google Scholar

209. Loizidou v. Turkey (preliminary objections) (1995) Ser. A, No.310, pp.23–24Google Scholar, para.62. See also Drozd and Janousek v. France and Spain (1992) Ser.A, No.240, p.29, para.91.Google Scholar

210. Amuur, supra n.156, at para.52.

211. In Van der Mussele v. Belgium (1983) Ser.A, No.70, pp.14–15, para.29, the Court found, for instance, that the State could not avoid its responsibilities under the Convention (in that case to provide legal aid) by delegating it to others.Google Scholar

212. A complaint against an individual (including a carrier) is incompatible with the Convention ratione personae under Art.25 but under the concept of Drittwirkung a complaint can be brought indirectly, if a contracting State can be held responsible for the violation. See Alkema, E. A., “The Third Party Applicability or ‘Drittwirkung’ of the European Convention on Human Rights”, in Matscher, F. and Petzold, H. (Eds), Protecting Human Rights: The European Dimension (1988), pp.33–45Google Scholar; van Dijk, P. and van Hoof, G. J. H., Theory and Practice of the European Convention on Human Rights (2nd edn, 1990), pp.15–20Google Scholar; Drzemc-zewski, A. Z., European Human Rights Convention in Domestic Law (1983), pp.199–228.Google Scholar

213. Alkema, idem, p.40.

214. Amuur, supra n.156, at para.41. See also Mole, N., “Immigration and Freedom of Movement”, in Harris, D. J. and Joseph, S. (Eds), The International Covenant on Civil and Political Rights and United Kingdom Law (1995), p.297; Tomuschat, op. cit. supra n.136, at pp.257–265Google Scholar, and Einarsen, T., “The European Convention on Human Rights and the Notion of an Implied Right to de facto Asylum” (1990) 2 I.J.Ref.L, 364Google Scholar, who writes that “there is no right to asylum de jure” but “on the other hand, the discretion concerning negative decisions—like rejection, expulsion, extradition and refoulement of asylum-seekers—is restricted”.

215. Art.7 of the 1966 ICCPR contains an almost identically worded provision. However, the UK has issued a reservation to the ICCPR which excludes those subject to immigration control from the protection of the ICCPR and any recourse to the Human Rights Committee, which monitors adherence to the ICCPR, is therefore excluded (Mole, idem, pp.297–331). Furthermore, the UK has not signed the 1966 Optional Protocol to the ICCPR, which accords an individual right of petition to the ICCPR's Human Rights Committee.

216. Soering v. UK (1989) Ser.A, No.161, p.34, paras.91 and 86.Google Scholar See also Van den Wyngaert, C., “Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?” (1990) 39 I.C.L.Q. 757.Google Scholar

217. Van den Wyngaert, idem, p.761.

218. Soering, supra n.216, at p.36, para.91 (emphasis added).Google Scholar

219. Cruz Varas v. Sweden (1991) Ser.A, No.201, p.28, paras.69, 70Google Scholar; Vilvarajah and Others v. UK (1991) Ser.A, No.215, p.34, para.103.Google Scholar

220. Vilvarajah, idem, p.36, para.107. Instead, “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3” (Ireland v. UK (1978) Ser.A, No.25, p.65, para.162).Google ScholarSee, similarly, Tyrer v. UK (1978) Ser.A, No.26, p.15, para.30.Google Scholar

221. Cruz Varas, supra n.219, at pp.29–31, paras.75–85.Google ScholarSee also Goodwin-Gill, , op. cit. supra n.131, at pp.320–321.Google Scholar

222. (1994) 15 H.R.L.J. 215–232.Google Scholar The Commission found that the applicants had been “refused entry by the only State of which they were citizens—the United Kingdom [their having been citizens of the UK and colonies before the independence of Kenya and Uganda]—they had no other country to which they could make a claim for admission … Even if the United Kingdom did not directly cause the hardship [resulting from actions by the Kenyan and Ugandan governments which deprived Asians of their livelihood] they exposed the applicants to the possibility of it occurring” (para.206). The Commission also found violations of Arts.8 and 14 of the Convention.

223. Chahal v. UK (70/1995/576/662), judgment of 15 Nov. 1996, paras.79 and 80.Google ScholarSimilarly, in Ahmed v. Austria the Court ruled mat Art3 was relevant in the case of a Somali refugee whose refugee status had been withdrawn and who faced expulsion after he was convicted of attempted robbery (71/1995/577/663), judgment of 17 Dec. 1996.Google Scholar

224. Harabi v. The Netherlands No.10798/84, 46 DR 112 (1986), p.116.Google Scholar

225. Doc.A/RES/39/46. Although this Convention does not offer a judicial enforcement mechanism, it does establish a preventive mechanism in the work of an independent committee of experts which can consider communications and reports on observance of the Convention. In addition, the Convention applies to all persons and not just the narrower “Convention refugee” as defined under the Geneva Convention. The committee has found that “substantial grounds” existed for believing that asylum seekers would be in danger of exposure to torture in violation of Art.3 of the 1984 Convention if returned to their country of origin in the cases of Matumbo and Khan, supra n.179.

226. Tomuschat, op. cit. supra n.136, at p.259.Google Scholar

227. Amuur, supra n.156; Quinn v. France (1995) Ser. A, No.311Google Scholar; Bozano v. France (1986) Ser.A, No.111, pp.22–27.Google ScholarSee also Van den Wyngaert, , op. cit. supra n.216, at p.774.Google Scholar

228. In Abdulaziz, Cabales and Balkandali v. UK (1985) Ser.A, No.94, pp.31–32Google Scholar, para.60 the Court found that “although some aspects of the right to enter a country are governed by Protocol No.4 as regards States bound by that instrument, it is not to be excluded that measures taken in the field of immigration may affect the right to respect for family life under Article 8” and found a breach of Art.8 in conjunction with Art.14. The Court also found a violation of Art.8 in Berrehab v. The Netherlands (1988) Ser.A, No.138, pp.14–16Google Scholar, in Mousta-quim v. Belgium (1991) Ser.A, No.193, pp.17–20Google Scholar, and Beljoudi v. France (1992) Ser.A, No.234, pp.25–28.Google Scholar See also Schermers, , op. cit. supra n.98, at pp.243–246.Google Scholar

229. In Abdulaziz, idem, pp.42–43, para.93, e.g., the Court found a violation of Art.13.

230. Idem, p.39, para.83. See generally Plender, R., “International (Human Rights) Law on Asylum and Refugees”, in Report and Papers delivered at the First International Judicial Conference held at Inner Temple, 1/2 Dec. 1995, pp.41–70.Google Scholar

231. E.T.S. 46, Arts.2 and 4. See also Schermers, op. cit. supra n.98, at pp.236–237.Google Scholar

232. E.T.S. 117.

233. R.36 of the Commission Rules of Procedure. In Cruz Varas, supra n.219, at p.25, para.53, the Court declared that such measures would be taken only “where it appears that irreparable damage would result from the implementation of the measure complained of” and where there is “a certain degree of probability that a person would be subjected to treatment in breach of these provisions if sent to the country concerned”. While States had hitherto complied with such interim measures, Sweden did not do so in Cruz Varas in 1989. See M. O'Boyle, ” Extradition and Expulsion under the European Convention on Human Rights: Reflections on the Soering Case”, in O‧Reilly, J. (Ed.), Human Rights and Constitutional Law (1992), pp.104–106; Schermers, op. cit. supra n.98, at pp.240–242.Google Scholar

234. Chahal, supra n.223, at para.80; Ahmed, supra n.223, at para.41. See generally Mole, N., Problems Raised by Certain Aspects of the Present Situation of Refugees from the Standpoint of the European Convention on Human Rights (1997, forthcoming).Google Scholar