SLP 10 (2016)

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

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