WHAT IS THE LAW?
‘Asylum’ is a state of refuge, granting protection from any immediate harm. In modern times, it relates mainly to a person being granted refuge by a country, which protects that person from dangers posed in their home country.
A ‘refugee’ is someone who meets the definition under Article 1A(2) of the Convention Relating to the Status of Refugees (‘Refugee Convention’). They are a person who is outside their country of nationality, and has a well-founded fear of persecution on one of the expressed grounds; race, religion, nationality, membership of a particular social group or political opinion. These five grounds are sometimes called the “Convention grounds”.
An ‘asylum seeker’ is someone who is seeking to be recognised as a refugee, but whose claim hasn’t yet been processed.
‘Complementary protection’ is the protection afforded to asylum-seekers who may fall outside the strict definition of a refugee under the Refugee Convention, but are entitled to protection under a human rights treaty, such as the Convention against Torture.
Right to Asylum
Article 14(1) of the Universal Declaration of Human Rights (‘UDHR’) states that:
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
Hence, there is a right to seek asylum, so asylum seekers should not be treated as if they have committed some sort of crime in trying to claim asylum. There is also a right to enjoy asylum if one is granted asylum. But there is no explicit global right to be granted asylum.
The most extensive treaty on rights for refugees is the Refugee Convention.
Arising from the right to seek asylum is the obligation in article 31 of the Refugee Convention that relates to refugees who are present “unlawfully” in a country where they are seeking asylum. Under article 31, penalties or unnecessary restrictions on the movement of refugees must not be imposed by reason of their illegal entry or presence, when they have come directly from a place where their life or freedom was threatened. Article 31 is based on an understanding that people who flee their homeland are unlikely to be in a position to secure the necessary legal permission to enter a country in which they seek asylum.
Those who are “lawfully” in a country are granted extensive rights under the Refugee Convention. The Convention, however, does not insist that they actually “legalise” the immigration status of refugees in order to grant them asylum.
Another limitation to asylum rights is that refugee status only exists for those who have fled their country. The Refugee Convention does not apply to the millions who are internally displaced due to persecution, but who have not been able to flee their country. This is because the Convention only applies to people who are outside their country of nationality.
A possible right to asylum for children is expressly recognised is in the Convention on the Rights of the Child. Article 22(1) states:
States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee … shall, whether unaccompanied or accompanied …, receive appropriate protection and humanitarian assistance.
As will be seen below, a right to asylum may be constructed out of other well-established human rights, including the right of non-refoulement (also discussed below).
Article 3 of the ‘Arab Convention on Regulating Status of Refugees in Arab Countries’ outlines that:
The Contracting States of this Convention shall undertake to exert every possible effort, within the limits of their respective national legislation, to accept refugees defined in Article 1 hereof.
The ‘OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’ provides a similar protection for the African region. Article II(3) specifically states that:
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.
There are human rights to ‘non-refoulement’, meaning that one must not be sent away to a country where one faces severe persecution. In particular, one must not be returned to a country where it is reasonably anticipated that a person faces torture or death.
Under Article 33 of the Refugee Convention, no country:
…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.
As such, no person who has demonstrated that they meet the definition of a refugee may be sent to a place where their life or freedom would be threatened.
The right of non-refoulement has been extended under human rights treaties, which offer complementary protection. In particular, Article 3(1) of the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment reads:
No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Rights of non-refoulement also exists under Article 6 and 7 of the International Covenant of Civil and Political Rights (‘ICCPR’), to protect against a person from being sent to a country where he or she foreseeably faces torture, severe ill treatment, or death.
The right of non-refoulement was extended in a decision by the European Court of Human Rights in Othman v UK to preclude expulsion to another country where a person faced the real possibility of a “flagrant denial of justice” in a criminal trial.
Right to Determination of Status
To be eligible for protection under the Refugee Convention, a person seeking protection (i.e. an asylum seeker) must establish that they meet the definition of a refugee. This has been used by a number of countries to refuse any legal protection to asylum seekers, as they simply refuse to process them.
In the Roma Rights case, for example, the House of Lords (UK) refrained from applying any part of the Refugee Convention because it concerned only ‘refugees’, not ‘asylum seekers whose status had not yet been determined’.
The United States Supreme Court similarly ruled that the Refugee Convention did not apply outside its territorial waters, and so permitted the return of asylum seekers without processing (Sale v. Haitian Centers Council 113 S. Ct. 2549 (1993)).
Some commentators stress that arrangements that seek to intercept asylum seekers before they reach the territorial boundaries of a country are nevertheless in breach of human rights. Goodwin Gill and McAdam, for example, suggest that such a practice breaches the country’s obligations to implement treaty obligations in good faith.
The right of an asylum seeker to a hearing has also been expressly recognised by a number of other human rights bodies, such as the Inter-American Commission of Human Rights (Haitian Center for Human Rights v United States) and the United Nations High Commissioner for Refugees (EC/50/SC/CRP.17, 9 Jun 2000).
Logically, a failure to process a person could well lead to a breach of the principle of non-refoulement, so there must be some international right to determination of the risk of refoulement.
The implied right of Asylum
As noted above, there is no explicit right to asylum in the Refugee Convention. Nor is there such an explicit right in the core global human rights treaties.
However, a combination of the right of refoulement with key human rights confirms that a right to asylum can be constructed out of well-recognised rights when a person faces real danger upon forced return to a country.
For example, asylum-seekers have a right to be free from arbitrary detention, as do all people. This right is recognised for example in Article 9(1) of the International Covenant on Civil and Political Rights. Therefore, an asylum-seeker cannot be detained without justification (eg health or security reasons). Nor, of course, can asylum-seekers be refouled. Therefore, in some situations a country must offer at least temporary asylum to some people, as it has no other permissible option.
There is a right to seek asylum. But there is no explicit human right to be granted asylum. Nevertheless, a right to asylum can be constructed from other well-recognised rights, including the right of non-refoulement.
Updated as of 6 February 2015