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the borders, however, are not the obstacle, which in the past meant the end of the hope
for rescue. Regional legislation enables refugees to ask for protection at the borders
themselves and obliges states to take such application under consideration. It is not
possible to refuse them at the borders and send them back. The duty not to return
exists already at this point.
It stems from the above that when a refugee appears on the borders the state has
an obligation not to return him or her. As was already stated, the state can however
consider an option of returning the refugee somewhere else. In legal terms this option
is included in the European legislation within the concepts of safe third country, safe
country of origin or the first country of asylum. At this point the question of a real
possibility of returning the person comes into play. That does not include only the
legal point of view but also the practical one. For example some other state does not
have to be willing to accept such incomings and accept them on their territory. The
fact that the persons are allowed to enter the territory of the other state is the
condicio
sie qua non
of the safe third country. It is possible to imagine to only bring the persons
to the other state’s borders when applying the safe third country concept but what if
the state closes its borders and will not let anyone in? For the concept of first country
of asylum it is even necessary to have explicit approval of the state that has already
awarded the person with international protection. On the other hand, the safe country
of origin concept can be built on an argument that the states have a duty to accept
their own citizens. Unfortunately, the states often do not want to allow their own
citizens to enter.
Another question is the protection of state borders. If they do not serve as legal
barriers, is it then meaningful to consider their fortification, to build fences there?
Under our assessment, the protection of borders serves as an important factual barrier
which enables the state to regulate its influx of persons and most importantly makes
it possible to have them registered and therefore know who enters its territory. The
duty to register is also encompassed in the Dublin system, however many states have
stopped respecting the Dublin rules in the time of the refugee crisis. At the same time,
some states at the outer border of the European Union have opened their borders
freely and have let enter an enormous amount of persons. In light of the duty not to
return, the states at the external borders were in deed facing the problem that they had
to let the refugees enter at the time when they arrived at the borders (while not being
able to recognize right away who is a refugee). And it was mostly Greece and Italy
where the persons from other European countries were being returned to. The pressure
put on them was too big. In spite of that their course of action was problematic for
the whole European Union. Also the extraterritorial effect of the non-refoulement
principle comes into play when we think about the duty not to return. Provided that
states could evade their duties when refugees come onto their territory so that they
would not let them enter at all, it would create an advantage for them. Therefore, there