Understanding the “First Safe Country” Concept and Why it’s Obsolete
Until the Syrian refugee crisis, it was accepted by those who practice refugee law that a claimant’s failure to make a claim in the First Safe Country—also known as Forum Shopping—could be interpreted by decision makers as evidence that a claimant lacked a subjective fear of persecution. This could result in the claimant being returned to their country of origin.
What is Forum Shopping?
When multiple courts have jurisdiction over a claim, forum shopping occurs when the claimant chooses a court on the basis that he believes it will treat him most favorably. In other words, he believes he has an advantage.
In the context of refugee law, if claimants have travelled through several countries before making a claim, decision makers often look at this unfavourably based on the rationale that a claimant who fears for his life would make a claim at the first opportunity.
Efforts to Prevent Forum Shopping:
Canada and the United States have even agreed not to hear claims (with some important exceptions) that originate in the other’s country. For example, if a Mexican national travels through the Unites states and makes a claim at one of Canada’s land borders, the individual would be returned to the United States to make a claim there.
Changes since the Syrian Refugee Crisis:
In my view, if this principle was ever valid, it has since been shown to be wrong. That is because of the Syrian refugee crisis. The reasons are twofold.
Syrian refugees typically cross into Europe by land or sea. This means that they are passing through numerous “refugee accepting” countries such as Greece, Hungary, Romania and Bulgaria. The migration generally continues north until refugees reach wealthier European countries such as Austria and Germany.
This migration pattern is clear evidence that genuine refugees want to ensure personal safety but also have the strongest possible opportunities for employment and accumulating wealth.
This pattern of migration, together with the German response to waive an internal European agreement to send refugees back to the place of first entry, demonstrates both a legal and factual recognition that a desire to settle in the best country, otherwise known as “forum shopping”, does not negate a refugee’s subjective fear of return. That is to say, one does not cancel out the other.
In light of this important shift, in my view, any attempt by adjudicators to draw negative inferences against claimants who “forum shop” should be aggressively challenged. At the very least it should certainly form the basis of any appeal where a negative inference has been used to deny a refugee claim.