Asylum & The Rights of Refugees - International Justice Resource Center

10/22/2017 Asylum & the Rights of Refugees | International Justice Resource Center
ABOUT IJRC HUMAN RIGHTS LAW COURTS & MONITORING BODIES
WHO WE&ARE HUMAN RIGHTS OVERVIEW

BOARD OFUNITED
DIRECTORS
NATIONS HUMAN RIGHTS C
NEWS EVENTS MEDIA & PUBLICATIONS SUPPORT OUR WORK
WHAT WE DO CIVIL & POLITICAL RIGHTS

ADVISORYAFRICA
BOARD HUB
ONLINE RESOURCE AFRICAN COURT
UNIVERSAL PERIO
O
NEWS ROOM IJRC PUBLICATIONS PEOPLES RIGHTS
IJRC IN THE NEWS VULNERABLE GROUPS LEADERSHIP

AMERICAS
LITIGATION &COUNCIL
ADVOCACY SUPPORT INDEPENDENT EX
INTER-AMERICAN
AFRICAN COMMIS
RIGHTS
ASYLUM & THE RIGHTS OF
IJRC DAILY
WORK WITH IJRC
IJRC INTERVIEW SERIES
ECONOMIC, SOCIAL &STAFF
CULTURAL
& VOLUNTEERS
TRAININGSASIA
Search... AND PEOPLES RI
HUMAN RIGHTS T
RIGHTS INTER-AMERICAN
REFUGEES
HEARINGS & SESSIONS EDUCATIONAL VIDEOS
CONTACT US EUROPE
ADVOCACY BEFORE THE INTER- COMESARIGHTS
HUMAN
AMERICAN HUMAN RIGHTSEUROPEAN
COURT O
SYSTEM COUR
IJRC EVENTS RESEARCH AIDSSESSIONS
TRAINING BOOKS & ARTICLES RIGHTS
EASTELAFRICAN
CARIBBEAN
EL LITIGIO E INCIDENCIA ANTE COUR
CO
MIDDLE EAST AND NORTHINTERAMERICANO
SISTEMA AFRICA DE
CIVILDERECHOS
ASYLUMSOCIETY IN THE NEWS
& THEACTORS
RIGHTS OF REFUGEES
EUROPEAN COMM
RELATED AREAS OF LAW HUMANOS
ROOM ECOWAS COURT
CENTRAL
RIGHTS AMERICO
NATIONAL BODIES JUSTICE COURT
NATIONAL
Contents HUMAN
INTERNATIONAL
RIGHTS
ATUAO CONDITIONS
CRIMINAL
PERANTE LAW
O SISTEMA
SOUTHERN
COUNCIL
ECtH
INTERAMERICANO DE DIREITOS OFAFRIC
EUR
OVERVIEW HEARINGS & SESSIONS
HUMANOS COMMUNITY
COURT
FOR
NATIONAL
HUMAN
OF HUMA
JUSTIC
RIGH
TRIB
Legal Protections INTERNATIONAL HUMANITARIAN
HUMAN RIGHTSRINSTITUTIONS
COMMUNITY
LAW
Who Is a Refugee? INSTRUMENTS
Exceptions: Exclusion and Cessation Clau Find
INTERNATIONAL C
What Rights Do Refugees Have?
OTHER INTERNATIONAL
PLEDWAYE BODIES
DEVAN SISTM ENT-
REGIONAL INTEGRATION
AMERIKEN POU PWOTEKSYON s TRUTH
DWA AND RECO
ENFORCEMENT: CLAIMING ASYLUM JURISPRUDENCE
AGREEMENTS & DOCUMENT COMMISSIONS
MOUN
Interpretation of Key Terms DATABASES Forced Disclosure INTERNATIONAL C
National Procedures for Claiming Asylum
Refugee Status Determinations by the UNH of Known UNIVERSAL JURIS
SELECTED CASE LAW ICTR
Membership in a Particular Social Group Journalistic
Non-refoulement and Countries of Transit Source Violates
Exclusion Clauses ICTY
ADDITIONAL RESOURCES Rights
OHC
INTERNATIONALI
TRIBUNALS
HR
Publ
INTERNATIONAL
ishe
ORGANIZATION
OVERVIEW s Guidelines for

Businesses to COURTS AND TRI
REGIONAL ECONO
States have been granting protection to individuals Respect, Protect
and groups fleeing persecution for centuries; however, LGBTI Rights
the modern refugee regime is largely the product of
CRP
the second half of the twentieth century. Like
D
international human rights law, modern refugee law
Find
has its origins in the a ermath of World War II as well s
as the refugee crises of the interwar years that Violence Based
preceded it. Article 14(1) of the Universal Declaration
http://www.ijrcenter.org/refugee-law/#OVERVIEW 1/28
of Human Rights (UDHR), which was adopted in 1948, on Albinism

guarantees the right to seek and enjoy asylum in other Discriminatory
countries. Subsequent regional human rights
instruments have elaborated on this right,
guaranteeing the right to seek and be granted asylum
in a foreign territory, in accordance with the legislation UPCOMING
of the state and international conventions. American HEARINGS &
SESSIONS
Convention on Human Rights, art. 22(7); African
[Banjul] Charter on Human and Peoples Rights, art.
October 23,
12(3).
2017
The controlling international convention on refugee SR Truth &
law is the 1951 Convention relating to the Status of Justice Sri Lanka
Refugees (1951 Convention) and its 1967 Optional all day
Protocol relating to the Status of Refugees (1967 IACHR 165th
Ordinary Period
Optional Protocol). The 1951 Convention establishes
all day
the definition of a refugee as well as the principle of
SR Judges &
non-refoulement and the rights a orded to those
Lawyers Poland
granted refugee status. Although the 1951 Convention
all day
definition remains the dominant definition, regional
WG
human rights treaties have since modified the
Corporations &
definition of a refugee in response to displacement
Business all day
crises not covered by the 1951 Convention.
CEDAW 68th
The 1951 Convention does not define how States all day
parties are to determine whether an individual meets Human Rights
the definition of a refugee. Instead, the establishment Committee 121st
of asylum proceedings and refugee status all day
October 24,
determinations are le to each State party to develop.
2017
This has resulted in disparities among di erent States
IACHR 165th
as governments cra asylum laws based on their
Ordinary Period
di erent resources, national security concerns, and
all day
histories with forced migration movements. Despite
Development
di erences at the national and regional levels, the
Information Day
overarching goal of the modern refugee regime is to
all day
provide protection to individuals forced to flee their SR Judges &
homes because their countries are unwilling or unable Lawyers Poland
to protect them. all day
WG
Legal Protections Corporations &
Business all day
International and regional instruments relating to
refugees include:
1951 Convention relating to the Status of Human Rights

Refugees Committee 121st
1967 Optional Protocol relating to the Status of all day
Refugees CEDAW 68th
Universal Declaration of Human Rights (art. 14) all day
American Declaration on the Rights and Duties United
of Man (art. 27) Nations Day all
American Convention on Human Rights (art. day
22)
Cartagena Declaration on Refugees,
Colloquium on the International Protection of
SUBSCRIBE TO
Refugees in Central America, Mexico and Panama THE NEWS ROOM
(Cartagena Declaration)
African [Banjul] Charter on Human and
Peoples Rights (art. 12)
OAU Convention Governing the Specific
Aspects of the Refugee Problem in Africa Subscribe
Arab Charter on Human Rights (art. 28)
Cairo Declaration on Human Rights in Islam
(art. 12)
European Convention on Human Rights (arts.
2, 3, and 5) Get the
Council Regulation EC No 343/2003 of 18 IJRC Daily
February 2003 establishing the criteria and Please ente
mechanisms for determining the Member State
responsible for examining an asylum application Subscribe
lodged in one of the Member States by a third
country national
Council Directive 2004/83/EC of 29 April 2004
on minimum standards for the qualification and
status of third country nationals or stateless
persons as refugees or as persons who otherwise
need international protection and the content of
the protection granted
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(art. 3)
African Union Convention for the Protection
and Assistance of Internally Displaced Persons in
Africa
Convention on the Rights of the Child (art. 22)
Who Is a Refugee?
Article 1(A)(2) of the 1951 Convention defines a refugee
as an individual who is outside his or her country of
nationality or habitual residence who is unable or
unwilling to return due to a well-founded fear of
persecution based on his or her race, religion,
nationality, political opinion, or membership in a
particular social group. Applying this definition,
internally displaced persons (IDPs) including
individuals fleeing natural disasters and generalized
violence, stateless individuals not outside their country
of habitual residence or not facing persecution, and
individuals who have crossed an international border
fleeing generalized violence are not considered
refugees under either the 1951 Convention or the 1967
Optional Protocol.
Countries in the Americas and Africa experiencing

large-scale displacement as the result of armed
conflicts found that the 1951 Convention definition did
not go far enough in addressing the protection needs
of their populations. Consequently, both Article 3 of
the Cartagena Declaration and Article 1(2) of the 1969
OAU Convention extend refugee status to an individual
who owing to external aggression, occupation, foreign
domination or events seriously disturbing public order
in either part or the whole of his country of origin or
nationality, is compelled to leave his place of habitual
residence in order to seek refuge in another place
outside his country of origin or nationality. OAU
Convention Governing the Specific Aspects of the
Refugee Problem in Africa, art. 1(2); accord Cartagena
Declaration on Refugees, Colloquium on the
International Protection of Refugees in Central
America, Mexico & Panama, art. 3. The African Union is
unique in having a convention that specifically
addresses the protection needs of IDPs. African Union
Convention for the Protection and Assistance of
Internally Displaced Persons in Africa. Finally, the
United Nations High Commissioner for Refugees
(UNHCR) provides protection to IDPs and stateless

individuals in addition to 1951 Convention refugees.
Exceptions: Exclusion and Cessation

Clauses
The 1951 Convention places a number of restrictions
on eligibility for refugee status. Article 1(D) excludes
individuals who, at the time of the 1951 Convention,
were already receiving protection or assistance from
another UN organ or agency. Article 1(D) largely
applied to Koreans receiving aid from the United
Nations Korean Reconstruction Agency (UNKRA) and
Palestinians receiving aid from the United Nations
Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA) and continues to apply to the
latter. UNHCR, Handbook on Procedures for
Determining Refugee Status under the 1951
Convention & the 1967 Protocol relating to the Status
of Refugees, para. 142. Although Palestinians living in
areas where UNRWA operates are eligible for refugee
status under the 1951 Convention. Id. atpara. 143.
Additionally, Article 1(F) excludes individuals:
with respect to whom there are serious

reasons for considering that: (a) he has
committed a crime against peace, a war
crime, or a crime against humanity, as defined
in the international instruments drawn up to
make provision in respect of such crimes; (b)
he has committed a serious non-political
crime outside the country of refuge prior to
his admission to that country as a refugee; (c)
he has been guilty of acts contrary to the
purposes and principles of the United
Nations.
Individuals who voluntarily avail themselves of the

protection of their country of nationality or habitual
residence or individuals who have received protection
in a third country are also not considered refugees. See

1951 Convention relating to the Status of Refugees, art.
1(C).
What Rights Do Refugees Have?

Refugee law and international human rights law are
closely intertwined; refugees are fleeing governments
that are either unable or unwilling to protect their
basic human rights. Additionally, in cases where the
fear of persecution or threat to life or safety arises in
the context of an armed conflict, refugee law also
intersects with international humanitarian law.
NON-REFOULEMENT
The basic principle of refugee law, non-refoulement
refers to the obligation of States not to refoule, 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. 1951
Convention relating to the Status of Refugees, art.
33(1). Non-refoulement is universally acknowledged as
a human right. It is expressly stated in human rights
treaties such as Article 3 of the Convention against
Torture and Article 22(8) of the American Convention
on Human Rights.
Additionally, both regional and domestic courts have

interpreted the rights to life and freedom from torture
to include a prohibition against refoulement. See R (on
the application of) ABC (a minor) (Afghanistan) v. Secy
of State for the Home Dept [2011] EWHC 2937 (Admin.)
(U.K.); ECtHR, Case of M.S.S. v. Belgium and Greece
[GC], no. 30696/09, ECHR 2011, Judgment of 21
January 2011. The principle of non-refoulement
prohibits not only the removal of individuals but also
the mass expulsion of refugees. See, e.g., African
[Banjul] Charter on Human and Peoples Rights, art.
12(5).
There are two important restrictions to this principle.

Persons who otherwise qualify as refugees may not
claim protection under this principle where there are

reasonable grounds for regarding the refugee as a
danger to the national security of the host country or
where the refugee, having been convicted of a
particularly serious crime, constitutes a danger to the
host community. 1951 Convention, art. 33(2).
FREEDOM OF MOVEMENT
At the regional level, the rights to seek asylum and
freedom of movement can be found within the text of
the same article. See African [Banjul] Charter on
Human and Peoples Rights, art. 12(1) and (3);
American Convention on Human Rights, art. 22. The
rights are closely related, since the inability to return to
ones country is the basis of an asylum claim while the
ability to leave ones country is a prerequisite for
claiming refugee status under the 1951 Convention.
Freedom of movement, however, is also a key right for

refugees within their host country. See, e.g.,
International Covenant on Civil and Political Rights,
art. 12. Article 26 of the 1951 Convention provides that
States shall a ord refugees the right to choose their
place of residence within the territory and to move
freely within the State. Meanwhile, Article 28 obliges
States parties to issue refugees travel documents
permitting them to travel outside the State unless
compelling reasons of national security or public order
otherwise require.
Freedom of movement is an especially important issue

with regard to protracted refugee situations in
countries with limited national resources and/or
limited legal frameworks for protecting refugees who
nonetheless host large refugee populations. In such
countries, refugee warehousing in which refugees are
confined to refugee camps, thereby restricting their
access to employment and education is commonly
practiced. U.S. Comm. for Refugees & Immigrants,
World Refugee Survey 2009 (2009). Countries such as
Kenya and Ethiopia specify in their national laws that
the movement of refugees throughout the country
may be restricted and that refugees may be limited to

living in designated areas, namely refugee camps.
National Refugee Proclamation, No. 409/2004, art.
21(2) (Eth.); Refugees Act (2014) Cap. 173 12(3)
(Kenya).
RIGHT TO LIBERTY AND SECURITY OF THE

PERSON
The right to liberty and security of the person is
important in the context of how asylum seekers are
treated within the intended country of refuge. The
national laws of several countries provide for the
detention of asylum seekers at one point or another
during the adjudication of their claims. See, e.g.,8 CFR
235.3(c) (U.S.); Refugees Act (2014) Cap. 173 12(3)
(Kenya).
The detention of asylum seekers is a contentious issue

because of the conditions found in the detention
facilities of several countries. This is particularly an
issue in Greece, a country overwhelmed by the number
of asylum seekers it receives, many of whom use
Greece as a port of entry as they try to access other
European countries. In order to clarify which State has
responsibility for a particular asylum applicant, the
Council of the European Union issued Council
Regulation EC No. 343/2003 of 18 February 2003
establishing the criteria and mechanisms for
determining the Member State responsible for
examining an asylum application lodged in one of the
Member States by a third country national (commonly
known as the Dublin Regulation).
Under the Dublin Regulation, the State through which

the third country national first entered Europe is
generally considered the State responsible for
adjudicating that nationals asylum claim. See Dublin
Regulation, art. 10(1). As a result, many of these
asylum seekers are returned to Greece to have their
claims adjudicated. Human rights organizations
including Amnesty International have reported on
unsanitary and over-crowded conditions in Greek
detention centers. Amnesty International, Annual

Report 2012 (2012), 157. Additionally, asylum seekers
have claimed that they did not have access to a UNHCR
representative or information about how to apply for
asylum while in detention. Id. The European Court of
Human Rights (ECtHR) has held in a number of cases
that the conditions in the Greek detention centers
violate individuals rights to humane treatment and
dignity under the European Convention on Human
Rights. See, e.g., ECtHR, M.S.S. v. Belgium and Greece
January 2011.
RIGHT TO FAMILY LIFE

The family is seen as the natural and fundamental
group unit of society and is entitled to protection by
society and the State. See, e.g.,International
Covenant on Civil and Political Rights, art. 23(1). In
respect of this right, a number of countries provide for
the granting of derivative status to dependent
relatives. Thus, where an individual is granted asylum,
his or her dependent relatives will also receive
protection through him or her. See 8 U.S.C. 1158(b)(3)
(A) (U.S.); Immigration Rules, 2012, S.I. 2012/11, art.
339Q(iii) (U.K.); National Refugee Proclamation, No.
409/2004, art. 12 (Eth.); Refugees Act (2014) Cap. 173
15 (Kenya). However, should that individuals refugee
status be terminated, the status of dependent relatives
will also be terminated. National Refugee
Proclamation, No. 409/2004, art. 6(1) (Eth.); Refugees
Act (2014) Cap. 173 20(1) (Kenya). Consequently,
these domestic laws do not preclude dependent
relatives from making their own asylum
claims.National Refugee Proclamation, No. 409/2004,
art. 12(5) (Eth.);Refugees Act (2014) Cap. 173 15(4)
(Kenya).
The definition of a dependent relative, however, varies

by the cultural notions of family prevalent in the State
party. In the U.K., dependents are defined as the
spouse, civil partner, unmarried or same-sex partner,
or minor child accompanying [theapplicant] while in
Kenya, dependent relatives include the brother or

sister of an applicant under the age of eighteen, or
any dependent grandparent, parent, grandchild or
ward living in the same household as the refugee.
Immigration Rules, 2012, S.I. 2012/11, art. 349 (U.K.);
Refugees Act (2014) Cap. 173 2 (Kenya).
OTHER RIGHTS
The 1951 Convention also protects other rights of
refugees, such as the rights to education, access to
justice, employment, and other fundamental freedoms
and privileges similarly enshrined in international and
regional human rights treaties. In their enjoyment of
some rights, such as access to the courts, refugees are
to be a orded the same treatment as nationals while
with others, such as wage-earning employment and
property rights, refugees are to be a orded the same
treatment as foreign nationals. 1951 Convention, art.
16 (refugees are to be granted equal access to the
courts), art. 17 (refugees are to be a orded the same
access to wage-earning employment as foreign
nationals), art. 13 (refugees are to be a orded the
same rights to moveable and immoveable property as
foreign nationals).
Despite these rights being protected in the 1951

Convention and under human rights treaties, refugees
in various countries do not enjoy full or equal legal
protection of fundamental privileges. Ethiopia, for
example, made reservations to Article 22 (public
education) and Article 17 (wage-earning employment),
treating these articles as recommendations rather than
obligations. U.S. Comm. for Refugees & Immigrants,
World Refugee Survey 2009: Ethiopia (2009). Although
not a party to the 1951 Convention, Lebanon is host to
a large population of refugees, predominately
Palestinians. Restrictive labor and property laws in
Lebanon prevent Palestinians from practicing
professions requiring syndicate membership, such as
law, medicine, and engineering, and from registering
property. Human Rights Watch, World Report 2014:
Lebanon (2014).
ENFORCEMENT:
CLAIMING ASYLUM
NB: The countries profiled here were chosen because
they have historically received a large number of
asylum applications and/or played host to large
refugee populations.
The adjudication of asylum claims is reserved to

individual States. Although some States, namely those
that comprise the Council of the European Union, have
made an e ort to adopt a uniform asylum system,
international and regional bodies lack the jurisdiction
to adjudicate individual asylum claims. See Dublin
Regulation; Council Directive 2004/83/EC of 29 April
2004 on minimum standards for the qualification and
status of third country nationals or stateless persons as
refugees or as persons who otherwise need
international protection and the content of the
protection granted (commonly known as the
Qualification Directive). International and regional
bodies do, however, adjudicate claims asserting
violations of the human rights of refugees and asylum
seekers.
Despite di erences across, and sometimes within,

States, there are a number of commonalities between
the asylum procedures of States who have national
frameworks for granting refugee status. The following
is a general and simplified explanation of these
procedures.
Interpretation of Key Terms

In order to understand how these procedures operate
it is necessary to first identify how certain key terms in
the 1951 Convention are defined within the domestic
legal systems of particular States.
Refugee States parties to the 1951

Convention and/or the 1967 Optional Protocol
have incorporated the Conventions definition of a
refugee into their domestic law. See, 8 U.S.C.
1101(a)(42) (U.S.); Immigration Rules, 2012, S.I.

2012/11, art. 334 (U.K.); CESDA L711-1
(Fr.) (French); The Immigration and Refugee
Protection Act, S.C. 2001, ch. 27, art. 96 (Can.).
States that are also party to the Cartagena
Declaration or the 1969 OAU Convention have also
incorporated those instruments broader
definition of a refugee, recognizing individuals
fleeing generalized violence and other
breakdowns of public order. See, e.g., Decree No.
3301, May 6, 1992 (Ecuador) (Spanish); Refugees
Act (2014) Cap. 173 3 (Kenya).
Asylum seeker person within a State party

who has applied for recognition as a refugee. If
the asylum seeker is determined to meet the
definition of a refugee they are granted asylum.
Well-founded fear individual States have

interpreted the 1951 Conventions requirement of
a well-founded fear of persecution to require
asylum seekers to show that there is a reasonable
possibility that they will su er persecution if
returned to their country of nationality or habitual
residence. See, e.g., Matter of Mogharrabi, 19 I&N
Dec. 439 (BIA 1987). This is considered to be both
an objective and subjective standard. Although
well-founded fear refers to a future threat of
persecution, individuals who have faced
persecution in the past are presumed to have a
well-founded fear. See, e.g., Immigration Rules,
2012, S.I. 2012/11, art. 339K (U.K.).
Persecution persecution is not defined in the

1951 Convention or the 1967 Optional Protocol. In
an attempt to provide guidance on what
constitutes persecution, the Council of the
European Union included a non-exhaustive list in
the Qualification Directive of acts that could be
considered persecution such as:
acts of physical or mental violence, including

acts of sexual violence; legal, administrative,
police, and/or judicial measures which are in
themselves discriminatory or which are
implemented in a discriminatory manner;
prosecution or punishment, which is
disproportionate or discriminatory; denial of
judicial redress resulting in a disproportionate
or discriminatory punishment; prosecution or
punishment for refusal to perform military
service in a conflict, where performing
military service would include crimes or acts
falling under the exclusion clauses as set out
in Article 12(2); acts of a gender-specific or
child-specific nature.
Qualification Directive, art. 9(2). The persecution

at issue also does not need to have been
committed by a State actor; persecutory acts
committed by non-state actors may qualify under
the 1951 Convention where the State is unwilling
or unable to protect the individual claiming
refugee status. See, e.g., id.atart. 6.
On account of there must be a causal nexus

between one of the five grounds and the
persecutory act. In practice, this means that
applicants must show that one of the protected
grounds was or will be at least one central reason
for the persecution. See, e.g., 8 U.S.C. 1158(b)(1)
(B)(i) (U.S.).
Race, religion, nationality the asylum

applicant need not actually possess the racial,
religious, or national characteristic in question
provided that characteristic was attributed to the
asylum seeker by the persecutor and is the reason
for the persecution See, e.g., Qualification
Directive, art. 10(2).
Political opinion like the above three

grounds, political opinion may be imputed to the
asylum seeker. There is some debate within the
U.S. as to whether neutrality may qualify as a
political opinion for the purposes of obtaining
asylum. Compare Matter of Acosta, 19 I&N Dec.
211 (BIA 1985) (no persecution based on political
opinion where refusal to join work stoppage
resulted in threats and violence from militants
because refusal was motivated by desire to earn
wages) with Bolanos-Hernandez v. I.N.S., 767 F.2d
1277, 1284-5 (9th Cir. 1985) (persecution based on
political opinion where former military member
refused to join guerrillas because he wished to
remain neutral).
Membership in a particular social group

there is still a lack of consensus as to what
constitutes a particular social group and whether
classes of persons not included in the 1951
Convention who nonetheless face persecution,
such as women and homosexuals, fall within this
category. (See Selected Case Law, below) The
Council of the European Union has stated that
persons may be considered to constitute a
particular social group when they share a
common immutable characteristic, that is,
something innate to their being or so
fundamental to their being that they cannot be
expected to change it, and have a distinct identity
within their country of nationality or habitual
residence because they are perceived as being
di erent by that society. Qualification Directive,
art. 10(1)(d) (applying standard articulated in
Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)
(U.S.)).
Particularly serious crime the definition of a

particularly serious crime varies by country. The
UNHCR considers a particularly serious crime to
be a capital crime or a very grave punishable act.
The UNHCR recommends balancing the severity

of the crime against the severity of the
persecution feared but this balancing test has not
been widely adopted. See Ali v. Achim, 468 F.3d
462 (7th Cir. 2006) (rejecting UNHCR balancing
test). In the U.S., 8 U.S.C. 1158(b)(2)(B)(i),
provides that an aggravated felony shall
constitute a particularly serious crime. Under the
statute, aggravated felonies may include felonies
for which the potential sentence is imprisonment
for one year or more. (For withholding of removal,
the potential sentence must be for at least five
years.)
War crimes, Crimes against Humanity States

apply the definition provided in international
humanitarian law, as articulated in Articles 7 and
8 of the Rome Statute of the International
Criminal Court. See A.B. v. Refugee Appeals
Tribunal and Minister for Justice, Equality and
Law Reform [2011] IEHC 198 (H. Ct.) (Ir.).
National Procedures for Claiming

Asylum
Typically, refugee status determinations or asylum
adjudications are conducted by an o icial from a
designated government department or agency. These
o icials should have a solid knowledge of refugee law.
In most cases, the o icial will interview the asylum
seeker to evaluate his or her evidence and credibility.
The burden is on the asylum seeker to prove that he or
she meets the definition of a refugee and asylum
seekers are encouraged to supply as much supporting
evidence as possible. Supporting evidence may take
the form of country reports, NGO reports, news
articles, a idavits, or the in-person testimony of
witnesses.
In accordance with Article 31 of the 1951 Convention,

States parties provide in their domestic law that an
applicants irregular entry (i.e., without an entry visa or
other documentation) will not have a negative e ect

on the asylum seekers application. See, e.g., Refugees
Act (2014) Cap. 173 11(3) (Kenya). Some States,
however, do place time restraints on how many days
a er entry into their country an asylum seeker may
make an application. Compare 8 U.S.C. 1158(a)(2)(B)
(U.S.) (imposing a one-year filing deadline on asylum
applications, although there are some limited
exceptions for extraordinary or changed
circumstances) with National Refugee Proclamation,
No. 409/2004, art. 13 (Eth.) (stating that asylum
applicants shall apply within fi een days of entry into
Ethiopia). In addition to making a claim at the border,
individuals in deportation proceedings may also raise
an asylum claim, provided their claim is timely.
If the o icial finds that the asylum seeker has a well-

founded fear of persecution based on one of the five
grounds, he or she can grant the applicant asylum.
Individuals granted asylum receive a residence permit
for themselves as well as one for any dependent
relatives. See, e.g., The Immigration and Refugee
Protection Act, S.C. 2001, ch. 27, art. 95(1)(a) (Can.); 8
U.S.C. 1158(b)(3)(A) (U.S.). States provide that where
the Government denies an asylum application, the
asylum seeker is to receive an explanation of the
reasons for the denial. See, e.g., Refugees Act (2014)
Cap. 173 11(6) (Kenya). Asylum seekers have a right
to appeal their negative decision. Generally, an
applicant may not be removed unless they have
exhausted all of their available remedies. See CESEDA,
L731-3 (Fr.); but see, Human Rights Watch, France:
Amend Immigration Bill to Protect Asylum
Seekers(noting that under French law appeal does not
suspend expulsion for those placed in the fast-track
procedure).
Individuals who are ineligible for asylum may

nonetheless be eligible for more limited forms of
protection. These include protection under Article 3 of
the Convention against Torture, which forbids States
parties from extraditing or returning an individual to a
country where they risk being tortured or subjected to

cruel, inhuman, or degrading treatment or
punishment. States also grant complementary forms
of protection, such as withholding of removal,
subsidiary protection, and Temporary Protected Status
to individuals who do not meet the definition of a
refugee but whose life or freedom would be in danger
if returned to their country of nationality or country of
habitual residence. 8 U.S.C. 1254, 1231(b)(3) (U.S.);
C.E.S.D.A. L712-1 (Fr.).
Refugee Status Determinations by

the UNHCR
There are a number of States who host large refugee
populations but who are either not a party to the 1951
Convention and 1967 Optional Protocol or who do not
have laws or policies in place to address asylum
claims. These States include a large number of
countries in the Middle East and Asia with significant
refugee populations, including Egypt, Jordan, India,
Malaysia, Lebanon, and Pakistan. SeeUNHCR, States
Parties to the 1951 Convention Relating to the Status of
Refugees and the 1967 Protocol.In such cases, refugee
status determinations are carried out by field o ices of
the United Nations High Commissioner for Refugees
(UNHCR).
The refugee status determination (RSD) conducted by

the UNHCR is similar to asylum adjudications
conducted by States. A er registering with the local
UNHCR o ice, asylum seekers meet with an Eligibility
O icer who examines their application and supporting
documentation. All asylum seekers have the right to an
individual in-person interview and may be
accompanied by a legal representative. UNHCR,
Procedural Standards for Refugee Status
Determination under UNHCRs Mandate 4.3.1-3 (2003).
Asylum seekers are permitted to bring witnesses, but
UNHCR policy is that the testimony of witnesses
should not be given in the presence of the applicant
and should never be given in the presence of other
witnesses or third parties. Id. at 4.3.9. All applicants are

informed in writing of the Eligibility O icers decision.
Id. at 6.1. Where the eligibility o icer has decided not
to award refugee status, the applicant is entitled to an
explanation of the negative determination. Id.
Applicants who have not been granted refugee status
are entitled to an appeal. Id. at 7.1.1.
All individuals granted refugee status as well as

derivative relatives are issued a UNHCR Refugee
Certificate which stipulates that the holder is a refugee
and is therefore entitled to protection, including
protection from refoulement. Id. at 8.1. Unfortunately,
in practice, issuance of a Refugee Certificate does not
always guarantee an individuals ability to work or
protect them from being detained in their host
country. See UNHCR, Global Focus: Malaysia 2016
Operational Context.
UNHCR normally determines refugee status on an

individual basis; however, the agency will a ord prima
facie refugee status to groups in cases where a large
group of individuals has been displaced and the need
for protection is especially urgent.
UNHCR,Resettlement Handbook, ch. 3, at 77 (2011). A
recent example of this was the UNHCRs 2007 decision
to give prima facie refugee status to asylum seekers
from southern and central Iraq. Id.
In addition to conducting RSDs and providing

assistance to refugees and other persons of concern,
UNHCR facilitates resettlement to third countries
where voluntary repatriation or local integration is not
feasible.
SELECTED CASE LAW

The following cases concern some of the most
contentious issues in refugee law today.
Membership in a Particular Social

Group
In Matter of Kasinga, 21 I&N 357 (BIA 1996), the

U.S. Board of Immigration Appeals (BIA) held that
young women who were members of the
Tchamba-Kunsuntu Tribe of northern Togo who
had not been subjected to female genital
mutilation, as practiced by that tribe, and who
opposed the practice constituted a particular
social group.
The criteria for identifying a particular social

group in the U.S., however, are not clear. In Matter
of Acosta, 19 I&N Dec. 211 (BIA 1985), the BIA held
that members of a taxi-driver cooperative in El
Salvador did not constitute a social group
because their membership was not immutable.
Meanwhile in Matter of C-A-, 23 I&N 951 (BIA 2006)
the BIA held that non-criminal, uncompensated
informants in Colombia did not constitute a social
group because they did not share a common,
immutable characteristic and because they were
not a visible group, as the very nature of their
work required them to work in secret. In Benitez
Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), a
case concerning a withholding of removal claim
filed by an El Salvadoran national, the U.S. Court
of Appeals for the Seventh Circuit not only
rejected the social visibility requirement
formulated by the BIA, it also criticized the BIA for
inconsistently applying its own criteria, pointing
to the fact that the BIA itself did not always
require social visibility when evaluating whether
individuals could be said to be members of a
particular social group. Particular social group has
been defined since as a group of persons all of
whom share a common, immutable
characteristic. See Cordoba v. Holder, 726 F.3d
1106, 1114 (9th Cir. 2013) (quoting Matter of
Acosta, 19 I&N 211, 233 (BIA 1985)).
In the joined cases, Islam (A.P.) v. Secretary of

State for the Home Department; Regina v.
Immigration Appeal Tribunal and Another Ex Parte

Shah (A.P.), [1999] (H.L.) (appeal taken from
England) (U.K.), the U.K. House of Lords held that
women in Pakistan constituted a social group,
granting asylum to two women from Pakistan who
had fled domestic violence. Cf., Matter of R-A-, 22
I&N 906 (BIA 1999) (denying asylum to woman
claiming membership in social group identified as
Guatemalan women who have been intimately
involved with Guatemalan male companions, who
believe women are to live under male
domination). According to the House of Lords,
whether such a broad definition of a social group
qualifies under the Convention will depend on
evidence of how that group is treated in the
country of nationality or habitual residence at
issue. Id. (citing In Re G.J. [1998] INLR 387 (New
Zealand Refugee Status Appeals Authority), a New
Zealand decision granting asylum on the basis of
membership in a particular social group to a
homosexual from Iran.)
In A and Another v. Minister for Immigration &

Ethnic A airs(1997) 142 ALR 331 (Austl.), the High
Court of Australia rejected the asylum claim of
Chinese nationals who claimed to have a well-
founded fear of persecution because they sought
to have a second child despite Chinas one-child
only policy. The asylum applicants claimed fear of
being subjected to forced sterilization and argued
they were members of a particular social group
that consisted of those who having only one
child do not accept the limitations placed on them
or who are coerced or forced into being sterilized.
The Court rejected this formulation as too circular
because it was not independent of the
persecution feared. By contrast, the U.S. Congress
has recognized forced sterilization as a per se
ground of persecution in its legislation. See 8
U.S.C. 1101(a)(42).
Non-refoulement and Countries of

Transit
In Sale v. Haitian Ctr. Council, Inc.,509 U.S. 155
(1993),the U.S. Supreme Court held that the U.S.
was not in violation of its non-refoulement
obligation when it returned Haitians interdicted
on the high seas because the Haitians were not
within U.S. territory and therefore the non-
refoulement obligation did not apply. The Inter-
American Commission on Human Rights (IACHR)
rejected this reasoning in IACHR, Report No.
51/96, Case 10.675, Haitian Centre for Human
Rights(United States), 13 March 1997. The IACHR
held that the U.S. had violated the petitioners
right to seek asylum as well as their right to life,
liberty, and security of the person when it
summarily returned interdicted Haitians many
of whom were subsequently arrested by Haitian
authorities without providing them with a
meaningful opportunity to have their claims
adjudicated. The IACHR also held that the U.S. had
violated their right to freedom from
discrimination, noting that a much more
favorable policy was applied to Cubans and
Nicaraguans.
In Abdi and Another v. Minister of Home

A airs(734/10) [2011] ZASCA 2 (15 February 2011)
(S. Afr.), the South African court rejected the
Governments arguments that two Somali
nationals one an asylum seeker and the other a
recognized refugee being held in the
Inadmissibility Facility detention center at the
airport while awaiting transfer to Kenya were
outside the scope of South African law. The Court
held that it was immaterial that the two had le
South Africa for Namibia prior to their detention
and, as illegal entrants, were subject to a
Namibian deportation order.
In ECtHR, Case of M.S.S. v. Belgium and Greece

January 2011, the ECtHR held that the Belgian
government had violated an asylum seeker from
Afghanistans rights under Article 3 of the
European Convention on Human Rights by
returning him to Greece, the country he had
initially transited through, to adjudicate his
asylum claim because it was common knowledge
that the Greek government lacked adequate
asylum procedures, thus, placing the applicant at
risk of being returned to Afghanistan where his life
or freedom would be in danger.
In M70/2011 and M106/2011 v. Minister for

Immigration and Citizenship & Anor, [2011] HCA
32 (Austl.) the Australian High Court held that the
Ministers declaration under 198A of Australias
Migration Act that asylum seekers who arrived on
the excised territory of Christmas Island could be
sent to Malaysia where their asylum claims would
be considered was not valid because he had failed
to adequately consider the factors set forth in
198A(i)-(iv), namely that Malaysia was not a party
to the Convention, had no domestic law
recognizing the status of refugees, and that the
Arrangement between Australia and Malaysia in
which Malaysia would recognize refugees and
adjudicate claims in accordance with
international standards was not legally binding.
In ACommHPR, Institute for Human Rights and

Development in Africa (on behalf of Sierra
Leonean refugees in Guinea) v. Guinea,
Communication No. 249/02, 36th Ordinary
Session, December 2004, the African Commission
on Human and Peoples Rights (ACHPR) found
that a proclamation by then-President Lasana
Cont made over national radio stating that Sierra
Leonean refugees should be arrested, searched
and confined to refugee camps resulted in
widespread violence and discrimination against

Sierra Leonean refugees to such a serious degree
that many were e ectively forced to repatriate to
Sierra Leone despite the ongoing civil war. The
ACHPR held that the treatment of Sierra Leonean
refugees violated the principle of non-
refoulement and the Sierra Leoneans right to
freedom from mass expulsion. See
alsoACommHPR, Organisation mondiale contre la
torture, Association Internationale des jurists
dmocrates, Commission internationale des
jurists, Union interafricaine des droits de lHomme
v. Rwanda, Communications No. 27/89-46/90-
46/91-99/93, 20th Ordinary Session, October 1996
(expulsion of Burundi refugees living in Rwanda
without opportunity to contest their removal
violated their rights under the African Charter);
but see ACommHPR, Curtis Francis Doebbler v.
Sudan, Communication No. 235/00, 46th Ordinary
Session, November 2009 (no violation where
Sudan announced, in coordination with UNHCR,
cessation of Ethiopian refugee status following
the end of the Mengistu regime and where there
were procedures in place for Ethiopians who still
had a well-founded fear of persecution to have
their claims heard.)
Exclusion Clauses
TERRORISM
In Matter of S-K-, 23 I&N 936 (BIA 2006), the
U.S. Board of Immigration Appeals (BIA) held that
a Burmese national who had provided
approximately 700 dollars to the Chin National
Front, which was at the time considered a Tier III
terrorist organization under U.S. law, was
inadmissible on the grounds that she had
provided material support to a terrorist
organization. It was irrelevant that the U.S.
Government supported the National Democratic
League, an ally of the Chin National Front, and
that the Chin National Front fought against the

Burmese Government, to which the U.S. was
opposed. In the wake of controversy following the
broad application of the material support bar to
refugees and asylum seekers, the U.S.
Government has subsequently applied a
discretionary waiver to several organizations,
including the Chin National Front, permitting
refugees who had supported these organizations
to enter the U.S. as resettled refugees or claim
asylum.
WAR CRIMES AND CRIMES AGAINST

HUMANITY
Negusie v. Holder, 555 U.S. 511 (2009): The U.S.
Supreme Court remanded to the BIA to determine
whether the Refugee Act, which incorporated the
1967 Optional Protocols exclusion of individuals
who had committed war crimes and crimes
against humanity from refugee status, included an
exception for persecutory acts committed under
duress. The Court held that the BIA, in denying
Negusie, an Eritrean nationals asylum
application, had erred in relying on Fedorenko v.
United States, 449 U.S. 490 (1981), to find there
was no duress exception because Fedorenko
concerned a claim arising out of the Displaced
Persons Act and not the 1980 Refugee Act.
A.B. v. Refugee Appeals Tribunal and Minister

for Justice, Equality and Law Reform, [2011] IEHC
198 [2008] 667 Ir. Jur. Rep. (5th May, 2011) (H.Ct.)
(Ir.): Irish High Court granted leave to apply for
judicial review where Refugees Appeals Tribunal
had failed to conduct an adequate assessment of
whether a former Taliban commander had
personally participated in war crimes and crimes
against humanity. The Court adopted the
standard articulated in Joined Cases C-57/09 and
C-101/09 Bundesrepublik Deutschland v. B und
D [2010] ECR I-000, whereby there is a permissive
presumption that any person who occupied a high
position within a terrorist organization

participated in the activities articulated in Article
1F of the 1951 Convention but authorities must
nonetheless conduct an assessment to determine
the role the individual personally played in
carrying out such acts.
PARTICULARLY SERIOUS CRIME

Matter of Carballe, 19 I&N 357 (BIA 1986): BIA
held that aliens who had been convicted of a
particularly serious crime within the U.S. were
presumptively dangerous to the community,
denying withholding of removal to a Cuban
national. See also, Ali v. Achim, 468 F.3d 462 (7th
Cir. 2006) (a irming BIAs holding that the
Attorney General may consider other crimes not
listed in the INA to constitute a particularly serious
crime for preclusion from withholding of removal,
rejecting contrary opinion of UNHCR guidelines,
denying withholding of removal to a Somali
national.)
Conseil detat [CE] [Council of State] April 7,

2010, Rec. Lebon 2010, IX-X, 319840 (Fr.): Council
of State granted asylum to Iraqi national who had
participated in an honor killing while still a minor
holding that the Commission des Recours des
Rfugis should have considered whether family
pressure lowered his free will and whether his
young age may have made him especially
vulnerable to such pressure. (Decision is only
available in French but an English summary can
be found here.)
R (on the application of) ABC (a minor)

(Afghanistan) v. Secy of State for the Home Dept
[2011] EWHC 2937 (Admin.) (U.K.): In determining
whether there is material before the Home
Secretary that justifies a serious belief that the
individual who claims protection has committed a
serious crime, the Home Secretary is required to
look at all the circumstances of the case including:

the law of England and the law of the country
where the crime is said to have occurred, the
individual factual matrix of the alleged crime
including any potential defenses, the age and
circumstances of the applicant, and the likely
punishment if found guilty. To be considered a
serious crime, there must be a high degree of
culpability on the part of the alleged o ender.
Here, the Home Secretary erred in finding there
were serious grounds for believing the applicant
had committed a particularly serious crime when
she had found that the applicant, a minor from
Afghanistan, had likely committed the alleged
crime unintentionally and failed to consider his
age and circumstances.
ADDITIONAL
RESOURCES
UNHCR Handbook for the Protection of
Internally Displaced Persons
U.N. O ice for the Coordination of
Humanitarian A airs
Guiding Principles on Internal Displacement
UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951
Convention and 1967 Protocol relating to the
Status of Refugees
International Organization for Migration, an
intergovernmental organization which, in addition
to other activities, assists governments in
developing migration policies and helps return
individuals whose asylum claims have been
rejected
U.S. Committee for Refugees and Immigrants,
Our Work with Refugees
UNHCR, Figures at a Glance
UNHCR, Asylum in the European Union: A
Study of the Implementation of the Qualification
Directive
UNHCR RefWorld, database for searching
asylum law and cases from a variety of countries
Twitter Facebook 842 Google
LinkedIn 6 Print
ABOUT IJRC DONATE JOIN OUR

TODAY! MAILING
LIST
The
Internationa
Subscribe
l Justice to our
Resource mailing list
Center
email address
(IJRC)
informs, Subscribe
trains, and
advises
advocates
and
individual
victims on
using
international
and regional
human
rights
protections
to advance
justice and
accountabili
ty in their
communitie
s.
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0

International License.
:)

Asylum & The Rights of Refugees - International Justice Resource Center

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Asylum & The Rights of Refugees - International Justice Resource Center

Încărcat de

Drepturi de autor:

Formate disponibile

10/22/2017 Asylum & the Rights of Refugees | International Justice Resource Center

ABOUT IJRC HUMAN RIGHTS LAW COURTS & MONITORING BODIES

WHO WE&ARE HUMAN RIGHTS OVERVIEW

WHAT WE DO CIVIL & POLITICAL RIGHTS

IJRC IN THE NEWS VULNERABLE GROUPS LEADERSHIP

OVERVIEW s Guidelines for

of Human Rights (UDHR), which was adopted in 1948, on Albinism

1951 Convention relating to the Status of Human Rights

Countries in the Americas and Africa experiencing

(UNHCR) provides protection to IDPs and stateless

Exceptions: Exclusion and Cessation

Additionally, Article 1(F) excludes individuals:

with respect to whom there are serious

Individuals who voluntarily avail themselves of the

in a third country are also not considered refugees. See

What Rights Do Refugees Have?

Additionally, both regional and domestic courts have

There are two important restrictions to this principle.

claim protection under this principle where there are

Freedom of movement, however, is also a key right for

Freedom of movement is an especially important issue

may be restricted and that refugees may be limited to

RIGHT TO LIBERTY AND SECURITY OF THE

The detention of asylum seekers is a contentious issue

Under the Dublin Regulation, the State through which

detention centers. Amnesty International, Annual

RIGHT TO FAMILY LIFE

The definition of a dependent relative, however, varies

Kenya, dependent relatives include the brother or

Despite these rights being protected in the 1951

The adjudication of asylum claims is reserved to

Despite di erences across, and sometimes within,

Interpretation of Key Terms

Refugee States parties to the 1951

1101(a)(42) (U.S.); Immigration Rules, 2012, S.I.

Asylum seeker person within a State party

Well-founded fear individual States have

Persecution persecution is not defined in the

acts of physical or mental violence, including

Qualification Directive, art. 9(2). The persecution

On account of there must be a causal nexus

Race, religion, nationality the asylum

Political opinion like the above three

Membership in a particular social group

Particularly serious crime the definition of a

The UNHCR recommends balancing the severity

War crimes, Crimes against Humanity States

National Procedures for Claiming

In accordance with Article 31 of the 1951 Convention,

other documentation) will not have a negative e ect

If the o icial finds that the asylum seeker has a well-

Individuals who are ineligible for asylum may

country where they risk being tortured or subjected to

Refugee Status Determinations by

The refugee status determination (RSD) conducted by

witnesses or third parties. Id. at 4.3.9. All applicants are

All individuals granted refugee status as well as

UNHCR normally determines refugee status on an

In addition to conducting RSDs and providing

SELECTED CASE LAW

Membership in a Particular Social

In Matter of Kasinga, 21 I&N 357 (BIA 1996), the

The criteria for identifying a particular social