Refugees and Asylum-seekers (Final) Flashcards
International refugee law: Purpose
Regulate the status and rights of refugees. Secure long-term solution to displacement.
International refugee law: Sources
Convention relating to the Status of Refugees (1951-146 parties) - Protocol (1967-147 parties). Regional refugee instruments: OAU Refugee Convention, Cartagena Declaration on Refugees, EU asylum acquisition.
What is a “refugee”?
Someone who is outside of their country of origin owing to well-founded fear of persecution on account of 5 different grounds exclusively.
What is a “refugee”?: Fear
Points of subjective feeling and motivation that explains why that person fled their country of origin. This is something that must be proven.
What is a “refugee”?: Well-founded.
Points to the objective basis of that fear. Have to show that there are objective reasons that you are experiencing fear.
What is a “refugee”?: Persecution
The individual must expect to be persecuted on account of:
1. Race
2. Religion
3. Nationality
4. Political opinion
5. Membership of a particular social group: Age, gender, sexual orientation, family membership, child soldier, civil or human trafficking, etc.
What is a “refugee”?: Who determines who is a refugee?
The state whose asylum the refugee is seeking has an obligation to assess the case presented by the individual - on an individual basis (cannot make group assessments).
What counts as “persecution”?
Threats to life or freedom, including: Torture, arbitrary prosecution, other serious harm (sexual or gender-based violence, human trafficking, slavery or forced labour, use as child solder, etc). Usually discrimination would not pass the bar, however, sustained and systematic forms of discrimination could amount to that effect (if it puts at risk your physical liberty or life).
The rights of refugees - Non-refoulement
Protection from expulsion or return to where the refugee (or asylum-seeker) would face persecution. Applies to rejecting or pushing back individuals at the frontiers of the state. Also applies to intercepting asylum-seekers at the high seas. Just because you’re not in your own jurisdiction does not mean you have the right to prevent asylum-seekers.
The rights of refugees - Non-refoulement: Exceptions
The person can be reasonably regarded as a danger to national security. The person has committed a serious crime.
The rights of refugees: Non-discrimination
Applies to asylum-seekers too. Also applies after refugee status is given to the individual.
The rights of refugees: Non-penalization
For illegal entry or stay. Individual cannot be punished for entering or staying in the country unlawfully. We. have to presume before the assessment is made, whether this individual is or is not a refugee - the presumption should be that they are. If they turn out not to be, the question is whether you can punish them retroactively for having entered the country unlawfully. Moral hazard involved: By not punishing them, you are creating an incentive for other “fake” refugees to come and try.
Hirsi Jamal and Others v. Italy (ECtHR 2012)
Applicants: 24 Somali/Eritrean migrants from Libya with the goal of reaching Italy. Italy was brought to court because they were forced to board an Italian ship and were taken back of Libya. They were not being told the reason of why they were taken back. Some of them were then deported by Libya to their countries of origin. This happened in the high seas, not under Italian jurisdiction.
Hirsi Jamal and Others v. Italy (ECtHR 2012): Accusation
Violations by Italy of the ECHR (and Protocol):
1. Article 3 of the EU convention: Prohibition of Torture (enough evidence to reasonably believe that these individuals could be subjected to torture in Libya, or in their country of origin if they were sent back). Italy has the obligation to not send individuals to places where they could be tortured.
2. Collective expulsion of aliens (Protocol 4 of EU Convention): Assessments have to be made on an individual basis not on a group basis. When Italy decided to send all of them to Libya, they did so as a collective decision without taking into account the different circumstances associated with each case.
3. Effective remedy (Article 13 of EU Convention): These individuals were not given the chance to fight their case for asylum.
Finding of the Court was that there was a violation of these 3 provisions.
