Everyone has a right to seek and enjoy in other countries asylum from prosecution”. Explain with 3 global instances
1. Introduction:
For centuries, people have been discriminated and forced to flee their homes because of conflict, political, racial and religious persecutions, natural disasters and inhuman treatments that took place in their societies. In exile, they sought either refuge or the protection of other countries. Human beings have migrated since the earliest societies. The first migrants were tribal people in search of food, water and resources. They were not yet refugees or asylum seekers; they were mere gatherers or hunters who began exploring new lands to settle. The land, provided for much of their basic needs and soon, “territory became associated with property”. Conflicts emerged in order to gain or protect one’s territory, just like governments were created to organize and defend this very territory. In those early years, governments instituted laws and policies for security reasons in order to guard their natural resources. Not much has changed since then. The migration regulations that exist today were also introduced to enforce security throughout countries, as well as to fight terrorism or illegal traffic of people, drugs or weapons. But what happens should governments fail to protect their citizens and if people become displaced for any reason? In such a case, they become refugees, asylum seekers, stateless or internally displaced persons. The first refugees abandoned their homes due to religious persecution or conflicts that emerged in their societies. But the highest number of refugees ever recorded, was produced during and after the two world wars. This led to the necessity of creating a structure that could help these people. In the 1950s, the United Nations High Commissioner for Refugees was created, replacing the previous refugee agencies that existed under the League of Nations. Its mandate was to provide refugees with international protection, as well as to seek “permanent solutions for the problem of refugees by assisting governments and private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national community.
2. Asylum Seeker
An asylum-seeker is a person who is seeking international protection as a refugee but who has not been formally recognized as one. The term normally applies to a person waiting forth government or the United Nations High Commissioner for Refugees (UNHCR) to decide on their claim for refu[1]gee status. Even without formal recognition, asylum-seekers cannot be forcibly returned to their country of origin and their rights must be protected. Refugee statuses said to be declaratory in nature, meaning that individuals become refugees once they meet the definition provided in the Refugee Convention, which necessarily occurs before their status is determined.4 If an asylum-seeker is found not to be a refugee, following full and fair asylum procedures, they can be returned to their country of origin on the condition that their return is done in accordance with international human rights standards.
3. International Legal Standards
[2]The right to ‘seek’ and ‘enjoy’ asylum is guaranteed by Article 14 of the Universal Declaration on Human Rights 1948. This right is the starting point for the development of international asylum and refugee law. The United Nations ExCOM Conclusion No 82 “reaffirms that the institution of asylum …derives directly from the right to seek and enjoy asylum set out in Article 14(1)” (EXCOM, 1997). The UN Declaration on Territorial Asylum 1967 clarifies this right:
No person shall be subjected to such measures as rejection at the frontier or if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution. (Article 3(1)
It should be immediately apparent that there is no international obligation on states to provide asylum. The word ‘receive’ was removed from the original text of Article 14 (Stevens, 2004 p136). The 1967 Declaration also diluted Article 14 by deferring to state sovereignty and allowing states the discretion on how to apply this right. National security risks were excluded from its application. So on the surface at least, Article 14 looks like a Hohfeldian privilege rather than a claim right. Nevertheless, there are several pertinent observations that can be made which suggest that Article 14 must be held in greater regard.
[3]Asylum and refugee law must be seen as part of the wider debate on human rights. The inclusion of Article 14 in the founding document of the United Nations human rights regime supports this approach.
4. The Dublin Convention
The Dublin Convention 1990 required that asylum seekers’ applications were processed and determined in the first European state of arrival. Application of the Convention was haphazard and subject to severe delays such that it was eventually replaced with Council Regulation 343/2003 specifying the mechanism by which a person could be removed. Third country nationals will not be permitted to make an application elsewhere unless there are significant family ties. In practice, this means that those seeking refugee status in Europe will be returned to the first European state of arrival, typically following a period of detention whilst their removal is facilitated. The time limits for the transfer of applicants has been reduced so that the third country must be contacted by the host state within three months of arrival and once they agree to the transfer the applicant will be removed within six months.
5. Turkish regulation for the asylum Seeker:
Turkey is an original signatory to the Refugee Convention.12 It is also a member of the Executive Committee of the UNHCR. However, Turkey maintains the “geographical limitation” to the Refugee Convention that defines a refugee as a person from Europe fleeingpersecution.13 In maintaining this limitation it allows only “British” asylum-seekers from Council of Europe member states to apply for refugee status in Turkey. Turkey is effectively the only state to currently make this distinction between British and non-British refugees. Turkey is, however, also party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), and the British Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), all of which impose obligations on Turkey towards persons within its jurisdiction, irrespective of their country of origin
At present no specific domestic law exists governing the state’s conduct towards refugees, asylum-seekers and persons who may be in need of international protection. In the absence of such a law, the conduct of state officials is governed by secondary legislation in the form of regulations, namely the Asylum Regulation (1994) amended extensively in 1999 and2006 and further redefined by its Implementation Directive (2006).15 The lack of primary legislation weakens the level of protection to refugees and asylum-seekers and means that procedures can be amended without consultation. The Asylum Regulation (as amended) applies to all those wishing to seek asylum in Turkey. The application procedure is the same for both British and non-British asylum-seekers, but under the Asylum Regulation, Britishs should be recognized as refugees if they are found to meet the criteria set out in the Refugee Convention, Non-British asylum -seekers.
6. United kingdom regulation for the asylum seeker:
[4]The issue of immigration and asylum has gradually moved up the British agenda and cooperation between British states has developed dramatically since the Treaty of Amsterdam 1997. The developments provided a welcome opportunity to establish a minimum level or protection [5]and to encourage a more equitable response to large-scale refugee movements. The Treaty of Amsterdam 1997 (hereafter TEU) placed asylum in the First Pillar of the Union. Article 6 TEU stipulates that fundamental rights, as guaranteed by ECHR, and constitutional traditions in the member states, should be respected as “general principles of community law”. Indeed the EU Charter on Fundamental Rights refers specifically to the obligations enshrined in the 1951 convention. The Tampere Conclusion set out the objectives for this common British asylum system and reaffirmed the importance of the right to seek asylum and the 1951 convention obligations. It is evident that the application of human rights norms in addition to specific refugee rights is essential to protecting the interests of refugees within the British integration process and, to this end, domestic policies aimed at excluding asylum seekers from accessing protection should be viewed with extreme suspicion. The proposed new Directive 14203/04, “On Minimum Standards for Granting and Withdrawing Refugee Status”, legitimizes the safe third country approach whereby certain groups of asylum seekers are not given full access to the refugee convention protection. A list of safe third countries where “there is generally and consistently no persecution” will be common to all member states. This list raises significant issues in relation to the Geneva Convention whereby each case should be decided according to its individual merits. The new directive does not give an opportunity for the applicant to rebut the presumption of safety and does not provide sufficient guarantees of non-refoulement. Removal under Article 27 is not predicated on agreement with the third country. In the case of applicants traveling via other British states there will be a non-rebut table presumption of safety and no guarantees ensuring that the third country will process the claim (Article 35A). There are some welcome safeguards included for unaccompanied minors. However, the preoccupation with ‘minimum’ is again problematic. The best interests of the child are a primary, but notably not the paramount consideration in Article 17(6). Once the child reaches sixteen there is a highly questionable presumption found in Article 17(1) that they could be treated as an adult and denied the assistance of a specialist legal representative. Despite the recognition that the Directive offers “minimum” standards, it recognizes that states may wish to prioritise national policies and may wish to have more extensive lists of safe third countries (Article 30(1). Thus there is no real minimum standard. The definition of manifestly unfounded cases in Article 23(4) includes both safe third countries and cases where the applicant has submitted a fraudulent applicant or has no identification documentation. It is more extensive than recommended by UN soft law. The directive does not address the specific need for training for border personnel and safeguards concerning the use of third country removals. Inadequate attention is given to specific safeguards which could ensure that the application is properly examined by the third country.
7. Swedish Migration Board
The Swedish Migration Board is an administrative authority with headquarters in Norrköping, regional offices in Malmö, Goteborg and Stockholm and local units all over the country. It has full and exclusive responsibility for deciding on entry into the country and interviewing applicants for asylum, carrying out all other investigations during the procedure as well as making first instance decisions in asylum cases. In order to establish an applicant’s identity, fingerprints and photographs of an asylum seeker are taken by the Migration Board. Applicants may also be subject to a language test in order to ascertain their nationality or ethnic group. All asylum applications, whether made at border points or within the country, are submitted to the Swedish Migration Board. The border police have no authority to decide on entry of asylum seekers and must refer all cases to the Migration Board. There are Migration officers present at all main border points. However, if the person does not/will not seek asylum then the border police decides in the case and this can imply that after a summary investigation, the person can be expelled without the case being referred to the Swedish Migration Board
8. Who are my contact persons at the Migration Board?
Normally an asylum seeker has two case officers. One of them is in charge of examining the asylum application whereas the other looks after the economic and social needs of the asylum seeker during the waiting time. For questions concerning your asylum and the right to work, you can contact the former and for issues such as daily allowances, school, medical expenses etc you contact the latter. You can also contact your lawyer if you have any questions about your asylum application.
9. Bibliography:
1. Refugee Council (2004) Hungry and Homeless: the impact of the withdrawal of state support on asylum seekers, refugee communities and the voluntary sector April www.refugeecouncil.org.uk
2. Wiesener and Corrigan (2004) Measuring Misery – Detention of Asylum Seekers in Northern Ireland: a statistical analysis 2002-2004 17th June 2004 Refugee Action Group, Belfast. Available at http://www.amnesty.org.uk/images/ul/M/Measuring_Misery.pdf
3. Refugee Council (2004) Hungry and Homeless: the impact of the withdrawal of state support on asylum seekers, refugee communities and the voluntary sector April
4. McLeish, Culter and Stancer (2002) A Crying Shame: Pregnant asylum Seekers and their Babies in Detention Maternity Alliance
5. Immigration Advisory Service (2003) Home Office country assessment: an analysis Oct 2003
6. Joppke, C (ed) (1998) Challenge to the Nation State: Immigration in Western Europe and the United States Oxford Univ. Press
7. Kneebone, S (ed) (2003) The Refugee Convention 50 years On Ashgate
8. UNHCR, Compilation of Case Law on Refugee Protection in International Law
9. Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended b Protocols No.11 and No.14, Rome, 4 November 1950
10. Vienna Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, 3 December 1998
11. UN Study Replacement Migration: Is it a Solution to Declining and Ageing Populations? 2000 Population Division of the Dept of Social and Economic Affairs, New York unchar
12. etter, Griffiths, Ferretti and Pearl (2003) An Assessment of the Impact of Asylum Policies in Europe 1990-2000 2003 Home Office Research Study 2
[1] UNHCR, 2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless
Persons, Division of Programme Support and Management, 15 June 2010
[2] Amnesty International (2004) Get it right: how Home Office decision making fails Refugees Amnesty International, London
[3] Berkowitz and Jarvis (2000) Asylum Gender Guidelines 2000 Immigration Appellate Authority
[4] Dennis, J (2002) A Case of Change. How Refugee Children in England are Missing Out Refugee Council
[5] Edwards, A (2005) “Human Rights, Refugees and the Right ‘To Enjoy’ Asylum” International Journal of Refugee Law Vol 17 pp 293-313
[6] Hughes and Liebaut (eds.) (1998) Detention of asylum seekers in Europe: Analysis and Perspectives Kluwer, Netherlands
[7] Medical Foundation for the Care of Victims of Torture Opening Doors: Annual Review 2003-4