This article is written by Kartik Bohra, Symbiosis Law School, Hyderabad. In this article, the role of legal assistance to asylum seekers and issues faced by them in other states with Indian perspectives has been discussed.
Table of Contents
Introduction
“Every day, across the world, people leave their home countries in search of a safer place which is often considered as one of the most difficult decisions in their lives.”
An asylum seeker is an individual or a group of individuals whose request for a refugee is yet to be processed. These groups are generally known as “prima facie refugees”. It is believed that good quality early legal assistance drastically changes people’s perspectives of claiming asylum. Asylum seekers face various hindrances due to lack of common policies in countries and the nature of their vulnerable and helpless situation. For the person who is seeking protection, the asylum procedure is considered as one of the most significant processes for them in a lifetime. These people require protection and safeguard to uphold the basic human rights norms in society. The most essential safeguard and protection are to provide quality legal aid for asylum seekers. Although there are various international organizations for the protection of asylum seekers, still the protection largely depends upon the conduct of individual states.
The United Nations General Assembly in its ninth session in 1954, observed that “the ultimate responsibility and accountability to tackle the situation of refugees within the mandate of the High Commissioner fall within the jurisdiction of countries of residence.” There are various aspects related to asylum seekers in the context of law enforcement in society. Article 14(1) of the Universal Declaration of Human Rights (UDHR) provides the right to seek legal remedy and enjoy asylum in other countries. There are numerous reasons which force people across the world to rebuild and start their lives in a different country. Some people leave their home country for the purpose of education or job and others are tortured or forced to flee persecution. Some people flee from their home because of atrocities and other crises such as violence. Some people flee because they face discrimination on their belief which can be political, social and ethnic and no longer feel safe in their home countries.
Issues faced by asylum seekers and refugees
Refugees and asylum seekers are considered as forced migrants. The United Nations High Commissioner for Refugees (UNHCR) observed that in 2012, there were around 23,000 people forced to leave their home countries due to conflict and persecution. There are various issues faced by asylum seekers and refugees in other countries. The major problem faced by any asylum seeker is the lack of legal aid provisions and legislation. Amnesty International also raised concern over the increasing cases of asylum seekers and warned that teenagers or vulnerable class may face deportation from the country due to lack of financial as well as legal aid.
It is noted that when asylum seekers are refused to provide legal aid in the matter of refugee crisis, they are more vulnerable in a society which may lead to their exploitation. It is very problematic for asylum seekers that the right to work is not given to them until they are eligible for asylum and their applications have been approved by the authorities. Thus, there is no option for them other than to depend on their family or friends and any organization working for the welfare of asylum seekers, to pay their legal fees. And, if their applications get rejected and cases are unsuccessful, then the failed asylum seekers face a lot of trouble and get stuck with no money for additional appeal.
Asylum seekers have faced a lot of harsh conditions as they have lost their house, employment, various support systems, language and customs. It is believed that many asylum seekers lost their lives and many have suffered psychological diseases due to their separation from family and society in which they used to live. Some of the asylum seekers find it very difficult and strange to live in a new country due to a change in culture and tradition. Loneliness and grief are often key issues faced by asylum seekers. According to BiD UK, out of 12,688 applications for asylum seekers, only 613 applications were selected for legal aid. Further, it is noted that asylum seekers often face mental health problems and are equipped with various short term and long term health sequelae. Therefore, these are the major challenges and issues faced by asylum seekers in other countries.
Role of legal aid in the asylum procedure
Legal aid is considered as one of the most essential elements of a fair and humane system of providing administrative justice. It is based on the principle of rule of law and provides the right to free and fair trial and the right to an effective remedy. The right to legal aid has been recognized as a significant individual right under international laws. International law termed legal assistance and legal aid as a component of the right to a fair trial and reflecting the important jurisprudential principle of equality of arms. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) enshrined certain provisions in regard to an effective remedy and fair trial. The UDHR and ICCPR contain provisions regarding the legal assistance where the interests of justice so require and right to a fair trial in national legal systems. The Convention relating to the status of refugees (1951), also provides legal assistance to asylum seekers and the rights afforded to that granted refugee status.
The legislative framework and various International laws around the world made the procedure for asylum very complex in the last decade. Therefore, it is necessary for the asylum seekers to take legal assistance in order to determine the procedure and identify the protection needs. It is generally believed that asylum seekers have no knowledge regarding the procedure and laws governing it in the country where asylum seekers application is scrutinized and examined. It has happened due to a lack of trust towards the authorities and language barriers. Further, these people do not have knowledge about the mechanism relating to the evidence and burden of proof. Thus, without any substantive legal assistance or representation, asylum seekers cannot get the status of refugee and may omit essential elements required for protection needs.
Every country has its own set of rules and regulations regarding the process of asylum seekers. It becomes very difficult for an asylum seeker to know all the facts about the procedure in the administrative as well as the appealable stage. Sometimes various qualitative legal assistance is available to asylum seekers at the point of application but it is difficult for the state to provide legal assistance to all asylum seekers. Various countries such as Belgium, Finland, Hungary, Spain and the United Kingdom provide legal assistance to asylum seekers at low cost in the initial stage. Sometimes asylum seekers are required to contribute to the cost of the procedure and legal assistance. There is no specific International law regarding the procedure of examination of asylum seekers. Due to conflict and persecution, asylum seekers generally lack financial support which makes legal aid required in the country. Therefore, legal aid plays a very vital role in assisting and safeguarding the rights of asylum seekers and providing an efficient and effective asylum procedure in the country.
The role of legal advisors and non-governmental organizations
Legal advisors and non-governmental organizations play a very vital role in providing legal aid to asylum seekers. They provide legal assistance to asylum seekers in the procedure established by national legal systems. In some countries, legal advisors have no power to act on behalf of asylum seekers and assist them before the authorities and appellate tribunals. Legal advisors have powers to provide legal advice to asylum seekers but not to represent them before the administrative bodies. However, in some countries, the tasks performed by legal advisors are similar to the strict ambit of lawyers. Thus, they can provide legal assistance as well as represent asylum seekers before the administrative authorities. In the United Kingdom, the Office of the Immigration Service Commissioner (OISC) regulated legal advisors have the power to represent asylum seekers and equipped them with effective legal advice.
In the majority of countries, legal representation is necessary at appeal procedure and administrative proceedings for asylum seekers. Various countries require good qualification amongst legal advisors to ensure quality legal aid and assistance to asylum seekers. In order to qualify as a legal aid provider, legal advisors need to receive initial training in human rights and refugee law. It is generally observed that asylum seekers failed to get adequate representation before the administrative bodies due to lack of financial resources. Therefore, they need to follow certain procedures in order to get adequate legal representation. Non-governmental organizations also play a key role in providing legal assistance to asylum seekers. They provide financial support in order to facilitate them with basic amenities in other countries and the right to have adequate representation before the administrative authorities and appellate bodies.
International laws for asylum seekers
Various states provide protection to asylum seekers who are being persecuted from their countries for different reasons. In the present scenario, different human rights laws all over the world aim to provide protection to asylum seekers as well as refugees in other states. Article 14 of the Universal Declaration of Human Rights (UDHR), provides protection and right to seek asylum in other countries. According to various International Conventions such as the American Convention on Human Rights, African Charter on Human and People’s Rights, an individual has the right to “seek and be granted asylum in a foreign territory.
The three faces of the Right of Asylum
The right of a state to grant asylum
International law plays a vital role in determining the rights of an asylum seeker in other countries. One of the significant drawbacks of this rule is that every sovereign state has its own rules and regulations in the matter of asylum. Thus, in international law, the rule of asylum is recognized as the right of a sovereign state and not the right of a person. UDHR in Article 14 provides that every asylum seeker has the right to “enjoy in other countries from persecution”. The declaration on Territorial Asylum adopted by the United Nations in 1967 states that according to Article 1 which provides “asylum granted by the state, in furtherance to sovereignty, a person has the right to invoke Article 14 of UDHR which shall be adhered by all other countries.” Besides that, every country has to follow norms accepted in various Conventions and treaties and also many countries have adopted municipal asylum adjudication processes.
The right of asylum seeker
The second right granted under international law is that every individual has the right to seek asylum in other countries without fear of persecution. Therefore, every person in his state has the right to leave his/her country due to conflict and other factors in pursuit of asylum. This right has been accepted under various treaties and conventions. Article 13 (2) of UDHR states that “everyone has the right to leave any country, including his own.” Though UDHR is not a binding instrument, it has been recognized that this right is applicable on all the member states and considered as inalienable rights for all members which set an obligation in the international community.
This right became very significant in the modern era and various countries started adopting the same. Article 12 (2) of the International Convention on Civil and Political Rights provides that “everyone shall be free to leave any country, including his own.” it is binding on all the member states to follow and adhere to this right.
The right of an individual to be granted asylum
The third aspect provides that it is the right of an individual in other countries to be granted asylum. The right of asylum in other countries has not been recognized in international law but it is believed that it is an inalienable right of an individual. The failure of the international community to grant asylum rights in other countries is a serious threat to the human rights of an individual in today’s world. The right granted under Article 14 of UDHR merely provides the right of a state to grant asylum. Thus, the Declaration failed to ensure the protection of an individual’s right in other countries. The Declaration did not aim to provide additional benefit to existing international law in order to provide rights to an asylum seeker in another territory to an individual.
Therefore, it is required to amend international laws to provide an individual’s right to be granted asylum in a particular state without infringing his rights granted under the Universal Declaration of Human Rights.
Asylum seekers and the Indian legal framework
In India, there is no provision formulated by legislation which deals with the refugee crisis, their legal status and rights. India is not a signatory to the 1951 Refugee Convention and does not have a proper legal framework for the protection of refugees and asylum seekers in the country. However, India provides various guidelines for the protection of asylum seekers and grants asylum to various refugees from neighbouring countries. Though the country has no proper legal framework but follows the UNHCR’s mandate for other nationals. The government of India has different sets of rules and regulations for various refugee groups, in general, follows the policy of ‘non-refoulement’ for holders of UNHCR documentation.
In the present scenario, India is following a restrictive approach towards granting asylum to the refugees due to a threat to its security and integrity. Mixed migration flows have complicated the entire process in granting asylum in other countries. Due to the absence of a national legal and social framework for the protection of asylum seekers, UNHCR has established its branches in many states of the country to provide legal aid to the refugees and asylum seekers and provide the necessary support to the government.
The rise in the number of refugees and asylum seekers has caused serious concern for the UNHCR to find innovative solutions to cater to the demands of these people in society. These people often live in poverty and do not have access to basic amenities of life and sometimes face violence and exploitation. The lack of proper legal and social framework is an obstacle in providing legal aid and protection to asylum seekers in India. Thus, there is a need for the well-established rules and procedures to safeguard the rights of asylum seekers and to uphold basic human rights.
Conclusion
The plight of asylum seekers and refugees is increasing day by day in various parts of the world. This plight is a matter of concern and should be addressed as a global issue. The refusal to grant asylum in other states is not a solution to this issue. This causes hardship for states and refugees in other countries. There is a greater need to have a uniform legal framework for safeguarding the rights of these people which must be followed by all the countries. Closed borders, refusing admission, push-offs are not effective and long term solutions to cater to the needs of these people in society. These practices are followed by various countries across the world which are inhumane and barbaric in nature and infringes the basic human rights of asylum seekers.
Various countries do not have an effective and efficient system for granting legal aid to asylum seekers and therefore, this causes serious trouble to the health and lives of these people in other states. States should grant and admit into their territories and assist them in providing effective legal aid protection in the world community. Legal advice can be a vital part in the protection of the rights of asylum seekers and they should be advised before they make an application for asylum in other states. It should not be seen in isolation but as an element of an integrated system.
References
- https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1342&context=djcil#:~:text=in%20international%20law%20today%2C%20an,vis%20the%20state%20of%20refuge.&text=right%20to%20receive%20it.,give%20effect%20to%20that%20right.
- https://www.unhcr.org/4cd96e919.pdf
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
