REFUGEE PIL 3.pdf

PENTECOST UNIVERSITY FACULTY OF LAW PUBLIC INTERNATIONAL LAW II (PULA 212) Lecturer: Elizabeth Dwamena, ESQ International Refugee Law Objectives Understand the mea...

PENTECOST UNIVERSITY FACULTY OF LAW PUBLIC INTERNATIONAL LAW II (PULA 212) Lecturer: Elizabeth Dwamena, ESQ International Refugee Law Objectives Understand the meaning assigned to ‘refugee’ under international law Know the governing law or convention as relates to ‘refugee’ Appreciate the fact that international refugee law is an ambit of humanitarian law Distinguish between a stateless person, a refugee and an asylum seeker Non Refoulement principle Children and asylum-seeking INTRODUCTION States are responsible for protecting the rights of their citizens. When governments are unable or unwilling to do this, people may face such serious threats that they are forced to leave their country and seek safety elsewhere. If this happens, another country has to step in to ensure that the refugees’ basic rights are respected. This is known as “international protection”. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the core of the international protection system, complemented by regional treaties and declarations that also address the rights of refugees. But international refugee law does not operate in isolation. It is best understood in conjunction with international human rights law, starting with the 1948 Universal Declaration of Human Rights, and with international humanitarian law (the law of war). This broader international legal underpins the work of the Office of the United Nations High Commissioner for Refugees (UNHCR). The UN General Assembly created UNHCR after the Second World War to ensure the international protection of refugees, and to work with governments to find lasting solutions to refugee problems. International refugee law protects people who seek asylum from persecution, and those who have been recognized as refugees. It comprises several international legal instruments – the most important being the 1951 Refugee Convention and its 1967 Protocol – as well as customary law. International Refugee law is a set of rules and procedures that aim to protect, first, persons seeking asylum from persecution, and second those recognized as refugees under the relevant instruments. Its legal framework provides a distinct set of guarantees for these specific groups of persons, although, inevitably, this legal protection overlaps to a certain extent with international human rights law as well as the legal regime applicable to armed conflicts under international humanitarian law. SOURCES OF INTERNATIONAL REFUGEE LAW The main sources of refugee law are treaty law, notably, 1951 Convention relating to the status of refugees (1951 Refugee Convention) and its 1967 Protocol, and customary international law. Customary international law. This applies to all states irrespective of whether they are a party to relevant treaties or not. Regional instruments concluded by regional blocs. This represent a further set of protections, particularly the 1969 Organization of African Unity Convention (for Africa), the 1984 Cartagena Declaration (for Latin America)” Refugee Law is an aspect of human rights law which is designed to set out in which circumstances states will extend protection to persons in fear of persecution The Convention relating to the Status of Refugees is the foundation of international refugee law. The Refugee Convention defines the term “refugee” and sets minimum standards for the treatment of persons who are found to qualify for refugee status. Because the Convention was drafted in the wake of World War II, its definition of a refugee focuses on persons who are outside their country of origin and are refugees as a result of events occurring in Europe or elsewhere before 1 January 1951. As new refugee crises emerged during the late 1950s and early 1960s, it became necessary to widen both the temporal and geographical scope of the Refugee Convention. Thus, a Protocol to the Convention was drafted and adopted. REFUGEE LAW AND HUMANITARIAN LAW Refugee Law seems primarily, although not exclusively, a matter of public international law, and is considered a component of international humanitarian law generally. Initiated with a series of relatively ad hoc interwar procedures, modern refugee law came into its own after the Second World War with the establishment of the U.N.H.C.R., and the drafting of the Statue of United Nations High Commission for Refugees (“Statute”), and the 1951 Convention relating to the Status of Refugees (“Convention”), These documents define “refugee,” provide for certain rights relating to juridical status, non- expulsion, freedom of movement, employment, travel documents, participation in national welfare, education and rationing programs, and give the U.N.H.C.R. a role in administering and protecting these rights at the international level. Human rights law offers a promising starting point for understanding refugee law. Refugee law could be seen as a subsidiary system of human rights protection. The theory runs as follows: even though international law provides for the protection of an individual in the International Bill of Rights, the international human rights system is notoriously ineffective in many ways. The purpose of refugee law could be to serve as a backup system. Individuals, whose human rights cannot be guaranteed in their country of origin, benefit from protection abroad, granted through refugee law. Thus, it is arguable that refugee law should become operative only on the premise that a human rights violation has taken place. Thus, when the 1951 Refugee Convention speaks of persecution, it essentially means human rights violation.” WHO IS A REFUGEE? A refugee is someone who has left his or her country of origin and is unable or unwilling to return there because of a serious threat to his or her life or freedom. The international legal definition of the term is contained in the 1951 UN Convention Relating to the Status of Refugees. According to the 1951 Convention, a refugee is someone who: Has a well-founded fear of being persecuted because of his or her: Race; Religion; Nationality; Membership in a particular social group; or Political opinion. Is outside his or her country of origin or habitual residence;  Is unable or unwilling to avail him- or herself of the protection of that country, or to return there, because of fear of persecution; and Is not explicitly excluded from refugee protection or whose refugee status has not ceased because of a change of circumstances. A person is a refugee as soon as the criteria contained in this definition are fulfilled. In other words, a person does not become a refugee because of a positive decision on an application for protection. Recognition of refugee status is declaratory: In broad terms, Article 1 of the Convention outlines the basis on which protection to refugees is granted, denied, or discontinued. A well-founded fear of persecution based on reasons specified in Article 1, and being outside the country of origin, nationality, or habitual residence evidenced by an unwillingness to return to such a country, are all significant elements in the definition of a refugee. However, the element of a well-founded fear of persecution is clearly the most important factor concerning the determination of refugee status. The other elements of the definition, i.e. outside the country of origin, nationality, or habitual residence, coupled with an unwillingness to return are essentially questions of fact. They constitute evidence of the claimant's fear of persecution in their country of origin, nationality, or habitual residence, as well as of the fact that they have lost the protection of such a country. By contrast, the criterion of a well-founded fear of persecution is a legal standard whose application is conditioned by the existence of objective facts. The adjective ‘well-founded’ connoted a fear based on reasonable grounds of persecution. In his view, this term suggests that it is not the frame of mind of the person concerned which is decisive for her or his claim to refugee status, but that this claim should be measured with a more objective yardstick. A consensus of judicial opinion has added content to the meaning of the phrase 'well-founded fear' of persecution in the context of the standards set in the Convention Relating to the Status of Refugees. In the case of I.N.S. V CARDOZA- FONSECA the Supreme Court of the United States laid the test of reasonable possibility of persecution as the basis for determining the meaning of the well-founded fear of persecution. In an illustrative opinion, Judge Stevens stated that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility Contracting States are under obligation to not discriminate against refugees on the basis of race, religion or country of origin. The House of Lords in England approved this approach in the case of R V SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE SIVAKUNIARAN. Brief facts: In this case, the six applicants for asylum were Sri Lankan nationals who belonged to the Tamil ethnic group. The Secretary of State refused to grant the applications on grounds that on the facts known to him, the applicants had no reason to fear if they returned to Sri Lanka. Holding: The House of Lords held that the requirement in Article 1 (A)(2) of the Convention that an applicant for refugee status had to have a 'well-founded fear' of persecution if returned to his or her own country meant that there had to be demonstrated a reasonable likelihood that he or she would be so persecuted. The Court stated that in deciding whether the applicants had made out their claim that their fear of persecution was well-founded, the Secretary of State could take into account facts and circumstances known to him or established to his satisfaction, but possibly unknown to the applicant in order to determine whether the applicant's fear was objectively justified. Following this reasoning, the Court took the view that since the Secretary of State had before him information which indicated that there had been no persecution of Tamils generally, or any particular group of Tamils, or the applicants in Sri Lanka, he had been entitled to refuse the application on the ground that there existed no real risk of persecution. The term ‘persecution’ is not defined either in the Convention Relating to the Status of Refugees or in the preparatory material to the Convention. There could have been an underlying motive behind this. Whatever the case, the judicial view is that persecution connotes injurious or oppressive action. At the very least, a connection exists between persecution and the failure on the part of states to observe certain human rights. The reference contained in the Preamble to the Convention concerning the principle that human beings shall enjoy fundamental rights and freedoms may provide a context for advancing the view that the violation of certain rights may either constitute, persecution per se, or evidence thereof. Thus, unjustified discrimination on grounds of race, religion, nationality, political opinion, or membership of a particular social group, may constitute persecution in international law. It has been suggested that the persecution feared by the refugee is primarily in the nature of a serious disadvantage, including jeopardy to life, physical integrity or liberty within the meaning of Articles 31 and 33 of the Convention Relating to the Status of Refugees. Article 31 relates, threats to life or freedom, to persecution in Article 1 of the Convention. It establishes a linkage between such threats, and the grounds of race, religion, nationality, membership of a particular social group or political opinion. And these are the grounds on which persecution is determined primarily in the sense of Article 1 of the Convention. Adding to the refugee definition found in the 1951 Convention relating to the Status of Refugees, the Organization of African Unity [OAU] 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa incorporates a regional refugee definition that also includes: Any person compelled to leave his or her country “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his [or her] country of origin or nationality”. REFUGEE V ASYLUM SEEKER “Asylum-seeker” is a general designation for someone who is seeking international protection. In some countries, it is a legal term referring to a person who has applied for refugee status and has not yet received a final decision on his or her claim. Not every asylum-seeker will ultimately be recognized as a refugee. However, an asylum- seeker should not be sent back to his or her country of origin until the asylum claim has been examined in a fair procedure. ….and what about migrants? It is equally important to distinguish correctly between the terms “migrant” and “refugee”. Conflating the two can have serious consequences for the lives and safety of refugees. A migrant is best understood as someone who chooses to move, not because of a direct threat to life or freedom, but to find work, for education, family reunion, or for other personal reasons. Unlike refugees, migrants do not have a fear of persecution or serious harm in their home countries. Migrants continue to enjoy the protection of their own governments even when abroad and can return home. NON-REFOULEMENT UNDER THE 1951 CONVENTION A refugee’s right to be protected from forced return, or refoulement, is the cornerstone of international refugee protection. It is contained in Article 33(1) of the 1951 Convention, which states: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever 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.” The words ‘in any manner whatsoever’ mean that the principle of non-refoulement applies to any conduct by the State that would place a refugee at risk of being returned, whether directly or indirectly, to his or her country of origin. This would include the refusal of entry at the border as well as removal from within the territory. The principle of non-refoulement applies wherever the State exercises its authority, including beyond its borders, for example when intercepting ships on the high seas. All refugees are entitled to protection from refoulement – including those who have not been formally recognized as such. This means that asylum-seekers whose status has not yet been determined by the authorities are protected from forced return. Article 33(2) of the 1951 Convention outlines two exceptions to the principle of non- refoulement. It permits the refoulement of a refugee if there are reasonable grounds for regarding him or her as a danger to the security of the country where he or she is present or if, having been convicted of a particularly serious crime, the refugee constitutes a danger to the community. However, Article 33(2) does not release States from their obligations under international human rights law. Non-refoulement under human rights law The prohibition of refoulement in international refugee law is complemented by provisions in many international and regional human rights instruments that prohibit the removal of anyone, whether a refugee or not, to a risk of torture, or cruel, inhuman or degrading treatment or punishment. Non-refoulement under customary law: An obligation for all States. It is widely accepted that the prohibition of refoulement is a customary law norm. Customary law is binding on all States. This means that even States that are not party to the 1951 Convention must respect the principle of non-refoulement. State Responsibility and Non-Refoulement Once a refugee or asylum seeker has achieved protection in another state, the state is only held to a certain level of responsibility. This responsibility of the state changes depending on whether such a person is a refugee or asylum seeker. The discrepancy lies in the extent of protection given. According to the case of M.S.S. v. Belgium and Greece, Article 3 of the 1951 Refugee Convention does not require a host country to provide financial assistance, or any assistance to maintain a certain standard of living to refugees and, “cannot be interpreted as obliging Contracting Parties to provide everyone within their jurisdiction with a home,” when referring to refugees. However, it is also stated that according to Directive 2003/9, the “Reception Directive,” under European Union Law “there is a positive obligation to provide accommodation and decent material conditions to impoverished asylum seekers. While it is true that countries can refuse refugees as they please, the state still has a responsibility to any refugees and asylum seekers that they refuse. This responsibility is known as the Non-Refoulement. The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions”, and non-admission at the border in the circumstances described below. This is evident from the wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever”. The principle of non-refoulement as provided for in Article 33(1) of the 1951 Convention does not, as such, entail a right of the individual to be granted asylum in a particular State. It does mean, however, that where States are not prepared to grant asylum to persons who are seeking international protection on their territory, they must adopt a course that does not result in their removal, directly or indirectly, to a place where their lives or freedom would be in danger on account of their race, religion, nationality, membership of a particular social group or political opinion. As a general rule, in order to give effect to their obligations under the 1951 Convention and/or 1967 Protocol, States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures. It applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom related to one or more of the grounds set out in the 1951 Convention, or from where he or she risks being sent to such a risk. Exceptions to the principle of non-refoulement under the 1951 Convention Permissible only in the circumstances expressly provided for in Article 33(2), which stipulates that: “The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” The application of this provision requires an individualized determination by the country in which the refugee is that he or she comes within one of the two categories provided for under Article 33(2) of the 1951 Convention. The provisions of Article 33(2) of the 1951 Convention do not affect the host State’s non- refoulement obligations under international human rights law, which permit no exceptions. Thus, the host State would be barred from removing a refugee if this would result in exposing him or her, for example, to a substantial risk of torture. Similar considerations apply with regard to the prohibition of refoulement to other forms of irreparable harm. Within the framework of the 1951 Convention/1967 Protocol, the principle of non-refoulement constitutes an essential and non-derogable component of international refugee protection. The central importance of the obligation not to return a refugee to a risk of persecution is reflected in Article 42(1) of the 1951 Convention and Article VII (1) of the 1967 Protocol, which list Article 33 as one of the provisions of the 1951 Convention to which no reservations are permitted. The fundamental and non-derogable character of the principle of non-refoulement has also been reaffirmed by the Executive Committee of UNHCR in numerous Conclusions since 1977. Other International Instruments States’ non-refoulement obligations with respect to refugees are also found in regional treaties, notably the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa and the 1969 American Convention on Human Rights. Non-refoulement provisions modelled on Article 33(1) of the 1951 Convention have also been incorporated into extradition treaties as well as a number of anti-terrorism conventions both at the universal and regional level.25 Moreover, the principle of non-refoulement has been re-affirmed in the 1984 Cartagena Declaration on Refugees and other, important non-binding international texts, including, in particular, the Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967. Obligations under the 1966 Covenant on Civil and Political Rights, as interpreted by the Human Rights Committee, also encompass the obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading treatment or punishment] of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. Please READ on the Safe Third Country Concept Child and Unaccompanied or Separated Child What do these terms mean? “A child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” (Convention on the Rights of the Child, Article 1) A separated child is a child who is separated from both parents or from his or her previous legal or customary primary caregiver, but not necessarily from other relatives. Separated children may, therefore, include children who are accompanied by other adult family members. (General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin, the UN Committee on the Rights of the Child) An unaccompanied child is one who is separated from both parents and other relatives and is not being cared for by an adult who, by law or custom, is responsible for doing so. (General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin, UN Committee on the Rights of the Child) Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum February 1997 The Convention on the Rights of the Child: How it Protects Refugees Nearly every country in the world has ratified the Convention on the Rights of the Child. This Convention applies to all children, including those who are refugees or asylum-seekers. The Convention articulates four basic principles that underpin the treatment of all children: The principle of non-discrimination (Article 2) The principle of the best interests of the child (Article 3) The right to life and to survival and development (Article 6) The right to be heard (Article 12). In addition, the Convention contains provisions that are of particular relevance to refugee children. It: Outlines a number of fundamental rights, including to protection from abuse, exploitation and neglect; to physical and intellectual development; and to education, adequate food and the highest attainable standard of health; Contains provisions concerning the child’s right not to be separated from his or her parents against their will, except when this is in the child’s best interests (Article 9); family reunification (Article 10); and the right to “special protection and assistance” by the State if the child is temporarily or permanently deprived of his or her family environment (Article 20). Specifically states that every child seeking refugee status or who is a refugee has a right to appropriate protection and humanitarian assistance in the enjoyment of the rights in the Convention (Article 22). The basic guiding principle in any child care and protection action is the principle of the “best interests of the child”. Effective protection and assistance should be delivered to unaccompanied children in a systematic, comprehensive and integrated manner. An unaccompanied child is a person who is under the age of eighteen, unless, under the law applicable to the child, majority is, attained earlier and who is “separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so. Because of their vulnerability, unaccompanied children seeking asylum should not be refused access to the territory. Authorities at ports of entry should take necessary measures to ensure that unaccompanied children seeking admission to the territory are identified as such  promptly and on a priority basis. Unaccompanied children should be registered through interviews. Effective documentation of the child will help to ensure that subsequent actions are in the ‘best interests’ of the child. A guardian or adviser should be appointed as soon as the unaccompanied child is identified. The guardian or adviser should have the necessary expertise in the field of childcaring, so as to ensure that the interests of the child are safeguarded and that his/her needs are appropriately met. Initial interviews of unaccompanied children to collect biodata and social history information should be done immediately after arrival and in an age-appropriate manner. It is desirable that all interviews with unaccompanied children be carried out by professionally qualified and persons, specially trained in refugee and children’s issues. Insofar as possible, interpreters should also be specially trained persons. In all cases, the views and wishes of the child should be elicited, and considered. Children should always have access to asylum procedures, regardless of their age. Children seeking asylum, particularly if they are unaccompanied, are entitled to special care and protection. Children seeking asylum should not be kept in detention. This is particularly important in the case of unaccompanied children. Considering their vulnerability and special needs, it is essential that children’s refugee status applications be given priority and that every effort be made to reach a decision promptly and fairly. Not being legally independent, an asylum-seeking child should be represented by an adult who is familiar with the child’s background and who would protect his/her interests. In recognition of the particular vulnerability of unaccompanied children, every effort should be made to ensure that decisions relating to them are taken and implemented without any undue delays. As soon as the child has been recognized refugee status or permitted to stay on humanitarian grounds, long-term placement in a community should be arranged. Should repatriation be considered as the most appropriate durable solution, the return will not be carried out unless, prior to the return, a suitable care-giver such as a parent, other relative, other adult care-taker, a government agency, a child-care agency in the  country of origin has agreed, and is able to take responsibility for the child and provide him/her with appropriate protection and care. Special efforts must be made to ensure the provision of appropriate counselling for a child who is to be returned. The possibility of using the expertise of international agencies could be explored, notably for initiating contacts and establishing an assistance programme for the family.