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Accessing Asylum in EuropeExtraterritorial Border Controls and Refugee Rights under EU Law$
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Violeta Moreno-Lax

Print publication date: 2017

Print ISBN-13: 9780198701002

Published to Oxford Scholarship Online: October 2017

DOI: 10.1093/oso/9780198701002.001.0001

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EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

Chapter:
(p.247) 8 EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls
Source:
Accessing Asylum in Europe
Author(s):

Violeta Moreno-Lax

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198701002.003.0008

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

Keywords:   Non-refoulement, Article 19 CFR, Article 33 CSR51, Article 3 ECHR, asylum acquis, Al-Skeini, Bankovic, Hirsi, Fransson paradigm, ‘implementing Union law’, Article 51 CFR, ‘cause-and-effect’ jurisdiction, functional jurisdiction, ‘effective control’, de jure control, de facto control, State agent authority, control over an area, extraterritorial responsibility, attribution, positive obligations, duty of care, omission, attribution, common organ, State agent, delegation of power, de-localisation

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