International organisations

This article has been written by Hemant Bohra of Lovely Professional University, Punjab. This article discusses in detail the provisions of International laws on asylum seekers and refugees, which include the rights and protections granted to asylum seekers, exception clauses, application procedures, and governing laws. The article pays close attention to human aspects as well as their standing in International Law.

It has been published by Rachit Garg.

Introduction 

All parts of the world embrace the idea of asylum or sanctuary. It has roots in religious writings, intellectual concepts, and old hospitality customs. According to recent data by the United Nations High Commissioner for Refugees (UNHCR), a total of 89.3 million people were forced to be displaced from their countries, and more than 4.6 million people were asylum seekers worldwide by the end of 2021.

There are several reasons why staying in one’s own country may be too difficult or hazardous for certain people. Children, women, and men escape their home country because of their sexual or gender identity, conflict, famine, severe poverty, or the effects of climate change or other natural catastrophes. If this occurs, another nation must intervene to guarantee that the fundamental rights of the asylum seekers are upheld, known as international protection. This article provides a thorough overview of international asylum law and all relevant provisions that readers should be aware of.

Classification of a refugee, asylum seeker, and migrant

S. No.RefugeeAsylum SeekerMigrants
A refugee is a person who has been compelled to escape conflict, persecution, or violence and is looking for a safe haven. International law defines and protects refugees, and every refugee starts as an asylum seeker.An individual who has applied for refugee status but has not yet received a formal decision is referred to as an “asylum seeker” because they fear danger in their home country.Not all people who apply for asylum qualify as refugees.A migrant decides to move frequently, maybe domestically or across international lines, generally to meet family, pursue education, or a job. Migrants are not forced to leave their country unless under some dire conditions, such as poverty, political upheaval, etc.
Based on well-founded fear, an official body like a government or the United Nations Refugee Agency decides whether a person requesting international protection satisfies the criteria of a refugee. A recent example is the Ukraine refugees.Asylum seekers must ask for protection in another country, which requires them to travel there first. They must then be able to demonstrate to local authorities that they fit the requirements for receiving refugee protection. Not all people who apply for asylum will be accepted as refugees.Regardless of their status in the nation they migrated to, migrants have the right to have all of their human rights safeguarded and respected, even if they are not fleeing persecution.
Many candidates must wait years in unsafe refugee camps overseas as the application procedure for refugee status can be lengthy. Refugees are not allowed to travel until their application has been approved and they have received travel authorization.The asylum procedure might take years to complete. A person may occasionally submit an application or pass a genuine fear test and be given a hearing or interview date that is years away.To find employment or a higher quality of life, migrants do not need to go through a protracted screening process, unlike immigrants (a person who relocates to another nation to settle).

International asylum law and procedure

According to international law, the protection provided by a state to a foreign national against their home state is known as an asylum. Neither the individual for whom asylum is sought has the right to demand it nor the foreign state is legally obligated to provide it. India lacks a national system for protecting asylum seekers and refugees and is not a signatory to either the 1951 Refugee Convention or its 1967 Protocol. It does, however, continue to provide sanctuary to many refugees from neighboring countries and adheres to the UNHCR’s mission for other nations, mostly from Afghanistan and Myanmar. Apart from India, several countries have their own rules and policies regulating asylum laws.

Asylum law in the United States

Asylum law in the United States is governed by the Immigration and Nationality Act (INA) of 1952. According to INA §208(a),(b)(1), If a person is already in the country and otherwise qualifies as a refugee, they may be given asylum. Race, religion, nationality, membership in Particular Social Group (PSG), and political beliefs can all be grounds for refugee status. Membership in a PSG offers the strongest foundation for claims of asylum based on sexual orientation, gender identity, and/or HIV status out of the five grounds on which a claim for asylum may be made since it is the most ambiguous.

Essentially, just the Form I-589 is necessary to apply for asylum, but in order to ensure that an asylum seeker is granted asylum in the United States, it is crucial to submit additional documents, such as a written declaration by the applicant outlining in detail the basis for their claim, documents unique to the case that support their claim, and documents about the applicant’s country of origin during the asylum application process.

Application for asylum and for withholding of removal form

Form I-589 is used for asylum applications, which include details of the person applying for asylum, his or her spouse and children, and background according to the United States:

Source- *Form I-589 for application of asylum-seeking in the United States by U.S. Citizenship and Immigration Services.

If a person who satisfies the description of a “refugee” as mentioned above is not prohibited from seeking asylum due to any of the grounds specified in Section 208 of the Immigration and Nationality Act, 2002, and the adjudicator determines that the person should be given asylum in their sole discretion, they may be granted asylum in the foreign nation. 

The one-year filing limit, which requires that an applicant for asylum submit their claim within a year of their last entry into the country, is one of the barriers to asylum. Cases involving those who require asylum will be adjudicated at the asylum office, while those involving others will be decided at the Immigration Court.

The request for protection under the UN Convention Against Torture and the withholding of removal under Section 241(b)(3) of the INA, 2002 are two related but less advantageous alternatives to asylum that may be included in the same application.

  • UN Convention against torture – To be awarded withholding of deportation under the United Nations Convention Against Torture, a person must prove that they would be tortured more often than not if they were sent back to their country of origin. No aspect of discretion exists. Most of the limits on asylum are waived for requests for protection under the United Nations Convention Against Torture.
  • Withholding of removal – A person must show that, if sent back to their country of origin, they would be more likely than not persecuted due to their race, caste, gender, nationality, or participation in a particular social group to be granted withholding of removal under Section 241(b)(3) of the INA 2002. The one-year filing date and several other restrictions on seeking asylum do not apply to requests for delays in deportation.

Asylum law in Australia

Just like in Asia, Australia has a legal responsibility to defend the human rights of all refugees and asylum seekers who enter the country, irrespective of how, where, or whether they come with a visa or not. However, just as in other nations, an asylum seeker must enter Australian territory in order to get protection.

As a signatory to the Refugee Convention, Australia is committed to preventing the deportation of individuals who meet the criteria for refugee status to a nation where their life or freedom would be in danger.

Thousands of people, including some recognized refugees, are presently detained in immigration detention facilities around Australia. According to the Migration Act of 1958, anybody entering Australia without a valid visa, whether they are coming from the coast or an excised offshore area, shall be kept in detention centers until they receive a visa or are expelled from the country.

Application and procedure to claim asylum

new legal draft

The Refugee Status Determination and Complementary Protection System evaluates the claims of protection of asylum seekers who fly into Australia, in accordance with the Migration Act of 1958. Asylum seekers who entered Australia by boat at an “excised offshore site” were entitled to have their claims processed within the Migration Act’s system on March 24, 2012, if the Minister decides to grant them permission to file a legitimate visa application. An individual can fill out Form – 842, an application for an offshore humanitarian visa provided by the Australian government, or can submit an online form to apply for asylum in Australia.

However, prior to March 24, 2012, however, asylum seekers who landed by boat at a “excised offshore site” had their applications for protection evaluated in a non-statutory process with less procedural protections than under the mechanism outlined in the Migration Act.

The Department of Immigration and Citizenship (DIAC) will determine whether an asylum seeker meets the requirements for refugee status according to the Refugees Convention for those who have their claims processed in Australia under the mechanism outlined in the Migration Act. If it is determined that a person is a refugee and they meet the conditions for health, identification, and security, they will be given a protection visa. Even though a person is not a refugee in some situations, returning to their place of origin might subject them to serious human rights violations like torture.

Asylum law in the United Kingdom

For many years before 1951, and as a signatory to the Refugee Convention, Britain provided shelter to those escaping oppression and war. The European Convention on Human Rights, which outlaws torture and other cruel, inhumane, or humiliating treatment or punishment, is another treaty that the United Kingdom has ratified. To assume that all applicants for asylum who do not meet the criteria of the Geneva Convention, often known as the Refugee Convention, are economic migrants or false refugees, is oversimplified and inaccurate. Civil conflicts arbitrarily ensnare large populations of people, who are then falsely charged by both sides with supporting the other cause. A few people are imprisoned and tortured as a result of their political views.

According to data added by UNHCR, the UK was home to 3,968 stateless people and had 83,489 pending asylum claims as of mid-2021, most of whom came from Iran. In comparison to other countries, the UK’s asylum facilities are not very advanced. The majority of asylum seekers are unable to work in the United Kingdom and are thus dependent on government assistance. Although housing is supplied, asylum seekers are unable to pick where it is located, and it can be challenging to rent buildings that current council residents do not wish to occupy.

Policies adopted by European Union (EU) regarding asylum law

  1. Reception of asylum seekers

The revised Reception Conditions Directive (2013/33/EU) lays forth minimum requirements that must be met by all Member States when receiving individuals seeking international protection. It gives the Member States a mandate to make sure that candidates for international protection have access to basic reception conditions, including food, healthcare, and work. Additionally, it limits the imprisonment of vulnerable people, especially kids.

  1. Temporary Protection Directive (TPD)

The extraordinary move to implement Council Directive 2001/55/EC of the European Union, often known as the Temporary Protection Directive (TPD), has been made by the EU Member States. Following wars in the Balkans in the 1990s, the Temporary Protection Directive was developed in 2001 to handle a “mass inflow of displaced individuals” with the purpose to provide EU members a mechanism to ensure a “balance of efforts” in order to relieve strain on their national asylum systems. The emergency temporary protection system gives asylum seekers the same rights throughout the EU, including the ability to live there for up to three years, the right to employment, housing, and access to healthcare.

  1. Qualification of third-party nationals as beneficiaries of international protection

The European Parliament’s Directive 2011/95/EU aims to establish uniform criteria for identifying non-EU citizens and stateless people who legitimately require international protection within the EU, either as refugees or as recipients of subsidiary protection, and to ensure that these individuals can access a minimum set of benefits and rights across the entire EU. This aims to restrict the concerned individuals’ travel inside the EU owing to varying legal systems.

  1. Asylum procedure regulation

In order to provide general rules for applications for granting and withdrawing refugee status as well as to safeguard those who are not refugees but would suffer substantial damage if sent back to their country of origin, Directive 2013/32/EU was enacted. It was incorporated in an effort to establish an effective, equitable, and balanced worldwide protection mechanism. The idea aims to obtain a higher degree of standardization and greater conformity in the outcomes of asylum procedures across all member States by selecting the form of legislation that is directly applicable in all member States.

Application procedure for asylum in the UK

Asylum law in the UK is governed by the Immigration and Asylum Act 1999. Just like in the US and Australia, when the government of the UK decides that a person who has filed for asylum fits the criteria outlined in the Refugee Convention, they will recognize that person as a refugee and issue them with papers proving their refugee status. However, the UNHCR office in the UK does not accept applications for asylum seekers. Typically, the UK grants refugees a five-year leave to remain as refugees. Despite the fact that their status as refugees is not restricted to five years, they must then seek further leave. 

In order to seek asylum in the UK, one must go through a protracted procedure. An initial application for asylum in the UK can be lodged at the Asylum Intake Unit or upon arrival at the border (AIU). The application is often initially vetted, which includes an interview on personal information. Children asserting themselves in their own right, however, are not screened. An individual can fill out an asylum support application Form ASF1 provided by the UK government if the person has submitted an application for asylum in the UK under the Refugee Convention and is awaiting a response, if the person is the dependent of an asylum seeker, or if no application for assistance has been submitted for the person.

International laws and standards regarding asylum seekers and refugees

There are many laws that protect and grant rights to asylum seekers and refugees. Some of them are as follows:

1951 Refugee Convention and 1967 Protocol

The main legal texts that serve to protect the rights of refugees are the 1951 Refugee Convention and its 1967 Protocol. With 149 states parties to one or both, they define the term “refugee” and outline the rights of refugees as well as the states’ responsibility to protect them.

The foundational principle of international law is non-refoulment, which holds that a refugee must not be returned to a country where they would suffer severe threats to their life or freedom. Currently, this is acknowledged as an international customary law norm. The legislation mandates that states cooperate with UNHCR to guarantee the protection and upholding of the rights of refugees.

International human rights law

Refugees and asylum seekers are protected by international human rights law just like everyone else. Everyone who is on a state’s territory or under its control or jurisdiction is covered by this corpus of law. All people are born free and equal in their rights, as stated in Article 14(1) of the 1948 Universal Declaration of Human Rights that “everyone has the right to seek and enjoy freedom from persecution in other countries.” This is the most significant provision among human rights mechanisms recognizing the right to seek and enjoy asylum. Article 14(1) of the Universal Declaration of Human Rights obligates the states to uphold the law and to provide a secure and civilized environment as well as a fair process for evaluating the status of asylum seekers as refugees.

States like Afghanistan, Colombia, Spain, and others do acknowledge the right to seek and enjoy asylum, but they do so using language like “rules and regulations in effect,” which may be read as granting the legislature the authority to decide what constitutes the right. On the other hand, certain nations (Hungary, Congo, Serbia, etc.) recognize the right to seek and enjoy asylum under the 1951 Refugee Convention, while others (Italy, Poland, Romania, etc.) do so in accordance with international conventions and laws.

Some rights protected by international human rights legislation, such as those against slavery and torture, cannot be curtailed or suspended for any reason. Under specified circumstances, such as to safeguard public order or health or defend others’ rights, others may be derogated. Derogations must adhere to the law, be publicly announced, and not be used in a discriminatory manner as suggested by International Human Rights Law. It also consists of various rights that grant protection to asylum seekers and refugees from other nations. Some of them are as follows:

Non-refoulement

Non-refoulement is the duty of states not to influence or pressurize, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion,” as stated in Article 33(1) of the 1951 Convention relating to the status of refugees.

In the case of M.S.S. v. Belgium and Greece, 2021, it was iterated that the right to life and the prohibition against torture have been construed by both domestic and regional courts to include a ban on refoulement. The prohibition on refoulement extends to mass expulsions of refugees as well as the removal of individuals.

The right to liberty and security

The treatment of asylum seekers in the chosen nation of shelter is influenced by their right to liberty and security. Because of the circumstances in detention centres in nations like Greece, the incarceration of asylum seekers is a difficult subject. 

The Council of the European Union created the Dublin Regulation to specify which state is in charge of a certain asylum seeker. The state that the third country originally entered is typically regarded as the state responsible for deciding that national’s asylum application, as stated in Article 10(1) of the Dublin Regulation. Many of these asylum applicants are therefore sent back to Greece to have their applications decided.

Right to employment

Giving asylum seekers access to the labour force can lower the cost of providing for them and boost the local economy. According to the European Commission (2003), asylum seekers have the right to apply for employment if they have waited more than a year for a judgment on their asylum request and are not held accountable for the delay. Skilled dancers, nuclear medicine technologists, labourers, overhead linesmen in the electricity transmission and distribution business, etc., are some examples of this type of employment. 

Providing work to asylum seekers can increase the asylum seekers’ chances of effective reintegration in the event of a return and decrease their vulnerability to exploitation if they are allowed to stay in the host nation.

Right to family life

According to Article 23(1) of the International Covenant on Civil and Political Rights, the family is regarded as the “natural and essential group unit of society and is entitled to protection by society and the State.” Many nations allow for the granting of derivative status to dependent relatives such as spouses, children, parents, etc. concerning this right. As a result, if someone is granted asylum, their dependent family members will also be given shelter. 

Other rights

  • Asylum seekers have the same rights as other people, including the obligation to “enjoy the maximum possible quality of physical and mental health” as stated in the International Covenant on Social, Economic, and Cultural Rights.
  • Access to education without discrimination is a basic human right and is necessary for the fulfillment of other rights.
  • Everyone has the right to an acceptable quality of life, which includes having access to food, clothing, shelter, medical care, and fundamental social services.

1969 OAU Convention governing the specific aspects of refugee problems in Africa

According to the OAU Convention, “the grant of asylum to refugees is a peaceful and humanitarian act,” and no OAU member state may see it as an “unfriendly act.” Any individual who is forced to leave their country due to “external attack, occupation, foreign domination or events significantly affecting public order in either part or the whole of his or her place of origin or nationality” is protected under the 1969 OAU agreement.

This suggests that those fleeing civil disturbances, mass violence, or war qualify for refugee status in states that are parties to the African Convention even if they do not have a well-founded fear of persecution for one of the reasons stated in the 1951 Convention.

Cartagena Declaration of 1984

To establish refugee protection in Latin America, eminent jurists and government leaders met in Cartagena, Colombia, in 1984. They established what is known as the Cartagena Declaration on Refugees, which was influenced by the 1969 OAU Convention.

The 1951 Convention and its 1967 Protocol, the principle of non-refoulment, and the significance of international collaboration in resolving refugee issues are all reaffirmed in the Declaration. It suggests that the 1951 Convention definition of a refugee be expanded to include people who have fled their country because of widespread violence, foreign aggression, internal conflicts, grave human rights violations, or other situations that have seriously disrupted public order and have put their lives, safety, or freedom in danger.

UNHCR’s strategy for simplifying the asylum process

Fair and simple asylum procedures

According to UNHCR’s handbook for parliamentarians, the integrity of state asylum systems depends on procedures based on relevant criteria of decision making. It is the duty of the states to  make sure that the proper status assessment institutions are in place and that the national legislation outlines the authorities’ duties in a precise and unambiguous manner. There should be no such kind of malpractices or incompetency on behalf of the authority by which the asylum seekers and refugees had to suffer later. All countries should examine the needs of asylum seekers for international protection in accordance with a unified and condensed process to determine this.

As previously discussed, almost every country has its own autonomous and distinctive asylum process, making it challenging for applicants to follow. Asylum processes should be clear and straightforward to understand so that those who are currently at risk of persecution can apply for asylum with less confusion and hardship.

Access to adjudicating claims

Asylum seekers shall have access to processes for adjudicating their claims that are reasonable and suitable on the basis of their claims, regardless of how they enter the territory of a state. It is the duty of the States to make sure that people who don’t require international protection are handled quickly and returned as soon as possible.

Regardless of whether they have personal identification or travel papers, asylum seekers should be allowed entry into the nation and granted a provisional right to stay there until their case is finally decided. They should be given identification papers in line with Article 27 of the 1951 Convention if they don’t already have the documents.

Privacy and confidentiality

In general, confidentiality is violated when data from or related to an asylum application is given to a third party without authorization and the unauthorized disclosure is of a kind that enables the third party to connect the applicant’s identity to the fact that the applicant has applied for asylum, endangering the applicant in the process.

Therefore, unless the person in question has expressly consented to the exchange of such information, states shall avoid disclosing any data on a person’s status to the officials of another state, whether that status is that of an asylum seeker or refugee. However, if a severe criminal offense is being prevented or investigated, personal information about an application may be sent to a national law enforcement agency.

Admissibility and accelerated procedures

A state adopts an essential stage called the admissibility procedure, as it  helps in deciding whether or not to take into account a claim for asylum. This step can also be used to establish which state is in charge of reviewing the facts of a claim. A state may rule an application for international protection unjustifiable through the admissibility procedure if the claimant already has an adequate defense in the first country of asylum or if the applicant has a connection with a third country that makes it sensible to assume that the applicant will travel to that country and can find safety there.

When assessing an application for refugee status, a state may also use an accelerated procedure if it believes that the application is only supported by factors that are not crucial to the judgment, the applicant is from a safe country of origin, or the applicant intentionally misleads the officials by giving false information or documents about his or her identity and nationality that might have had a bad impact on the application procedure.

Exclusion and cessation clauses

Exclusion clauses

Refugees and asylum seekers will not be granted rights and protection by another country if they are involved in heinous crimes. Article 1D, 1E, and 1F of the 1951 Convention are the exclusion clauses. As per Article 1F, applicants for refugee status are disqualified if there are “serious reasons to consider:” they have committed a crime against humanity, peace or a war crime; they have committed a serious non-political crime before applying for asylum in their host nation, or they have committed acts that are against the goals and principles of the United Nations.

The ‘Exclusion Clauses’ of Article 1F include several significant features:

  1. International law, including regional law, is incorporated under Article 1F.
  2. Each of the three subsections addresses severe crimes and flagrant violations of basic human rights and dignity that constitute persecution.
  3. The Exclusion Clauses are the points where several strands of international law, such as international criminal law, international humanitarian law, international human rights law, and international refugee law converge.
  4. They are applicable in both peace and conflict.
  5. Through its interactions with other areas of public international law, particularly international criminal law, Article 1F has helped advance international refugee law.

Persecutors have been labeled as “undeserving” or “unworthy” of international refugee protection, according to the UN High Commissioner for Refugees. From a moral standpoint, it could be fair to claim that people who violate the human dignity of others, or who participate in the violation of the human dignity of others, are ineligible for international protection. However, it has been claimed that, as all human rights are universal, inalienable, indivisible, interdependent, and linked, it is impermissibly incorrect to declare anybody “undeserving or unworthy” of their fundamental human rights and human dignity.

Cessation clauses

After receiving refugee status, a person cannot lose that status until they apply for protection from their home country again or a third party (such as the UNHCR or the host state) exercises a cessation provision. The 1951 Refugee Convention’s rights and benefits for refugees cease upon the declaration that international protection is no longer required.

UNHCR may carry out voluntary repatriation (the act of returning to one’s nation) to facilitate the termination of convention protection. According to UNHCR legislation, “the competence of the High Commissioner” ceases to apply to a refugee when the circumstances that led to his recognition as a refugee have changed and no additional grounds remain that prevent him from utilizing the protection of his country of origin. The UNHCR runs extensive voluntary repatriation programs whenever it decides that such a transformation has taken place.

Although the duty of non-refoulement forbids states from deporting people who have been granted refugee status under international law, Article 1C(5) and (6) of the 1951 Convention permits states to order the return of individuals and groups of people when there is no longer a fear of persecution and conditions in the country of origin have improved to the point where national protection is available.

Conclusion 

Nations and organizations must act resolutely to counter social ignorance and discrimination, insufficient community infrastructural facilities, and a variety of dynamic international differences that frequently create the circumstances for mass migration in the fight to encourage widespread acceptance of relocated societies of asylum seekers and refugees. Whether refugees move inside their country of origin or return to their original homes is generally irrelevant in terms of international refugee law. 

Return and relocation are both seen as “durable solutions,” which, in the words of the UNHCR, is the point at which a person ceases to be a refugee and, hence, no longer deserves the protection of the 1951 Convention. Because every nation’s government has a duty to provide human rights that anybody can use, regardless of their circumstances. Governments must uphold their joint obligation to safeguard the rights of migrants, refugees, and asylum seekers.

Frequently Asked Questions (FAQs)

Are asylees or asylum seekers possible targets for deportation?

If asylum seekers take actions that disqualify them, they may be deported while seeking refuge. For committing a crime, such as an egregious felony, a person may be disqualified. They may be held under certain circumstances, and the process may be accelerated.

Who are Internally Displaced Persons (IDPs) and who helps them?

IDPs are people who leave their homes for similar reasons as refugees but do so while still inside their nation, where they are thus subject to the laws of that state. UNHCR helps the IDPs in several crises even though it has no special authority to do so.

Even if a person has been found guilty of a crime, may they still ask for asylum?

Yes, but depending on the offence, he or she could not be eligible for asylum. Any criminal background must be disclosed on the asylum application form and during the interview. If that person fails to provide this information, the immigration court will be notified of their asylum request, and they risk penalties or jail time for perjury.

References 


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