2. Human Rights approach to Refugee Protection and Asylum Policy
University of Tampere
1 December 2017
Senior officer Heidi Lempiö

3. Content of the Presentation
Role and activities of the Non-Discrimination Ombudsman
Asylum as a human right
Human rights approach – interpreting the law
Our view
Monitoring Removals

4. The Role of Non-Discrimination Ombudsman
Autonomous and independent authority
The main tasks are to promote equality and to prevent and tackle discrimination
Special tasks:
to act as the National Rapporteur on Trafficking in Human Beings
to Monitor Removals of third country nationals from the country
to monitor the status of foreigners and other minority groups and to promote their rights

5. Activities of the Non-Discrimination Ombudsman
Duties include, inter alia..
Performing research, issuing reports, recommendations, statements and intiatives within the mandate
Monitoring the application of international human rights treaties within the mandate
Reports annually to the Government and every four years to the Parliament
Next report to the Parliament in Spring 2018, will include a short research study about the international protection afforded by Finland between , as well as identification of challenges and issuing recommendations

6. Asylum as a human right ?
Asylum law is based on International Treaty (Geneva Conventions)
To seek asylum / to be given a refuge are not rights that are included in General Human Rights Treaties (i.e. EHCR or UN CCPC)
Except in the EU Charter of Fundamental Rights (Art. 18) according to which ” The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention “
However, the prohibition of torture, cruel and inhuman treatment is included in general HRTs and considered as an absolute right, not derogable even in times of emergency
Applies also to expulsion and extradition (=deportation)
Summa summarum: to receive an asylum is not an individual human right under traditional international human rights law, but to be free from refoulment to a country where one could be subject to torture, cruel and inhuman treatment is

7. Human Rights Approach – National Law
Finnish Aliens Act:
1 §: “The purpose of this Act is to implement and promote good governance and legal protection in matters concerning aliens. In addition, the purpose of the Act is to promote managed immigration and provision of international protection with respect for human rights and basic rights and in consideration of international agreements binding on Finland.
5 §: ” The application of this Act may not restrict aliens’ rights any more than necessary.”
The preparatory material of the law:
Finnish Constitution 22 § : ”The public authorities shall guarantee the observance of basic rights and liberties and human rights.”

8. Semantics?
Finnish Aliens Act 6 §: “In any decisions issued under this Act that concern a child under eighteen years of age, special attention shall be paid to the best interest of the child and to circumstances related to the child’s development and health.” vs. Un Convention on the Rights of the Child Article 3: “ In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. “

9. Human Rights Approach – Interpreting the law
What does it mean?
the law gets its content by its interpretation and application
e.g. ECtHR jurisprudence, CJEU, CAT commmittee
Must be remembered also the background of the institution as a international (political) organisation
The role of UNHCR?
UN human rights agency with a specialized mandate
Should be considered as a strong authoritative source within the field of asylum law

10. Human Rights Approach – Interpreting the Law
As to the procedural principles:
ECtHR jurisprudence inter alia
GC judgment in case of J.K. and others v. Sweden on 23 August 2016
Shared burden of proof between the applicant and the authorities
Benefit of doubt – principle
Taking into account multiple factors/ grounds for protection together
Belonging to a social group subjected to ill-treatment
Lower burden of proof
If threat emanating from non-state actors
The will and ability of the COI authorities to provide protection

11. Human Rights Approach – Interpreting the Law
CJEU jurisprudence inter alia
Joined Cases C-199/12, C-200/12 and C-201/12, X, Y and Z v Minister voor Immigratie en Asiel, 7 November 2013
Homosexuals form a social group
Cannot be reasonably expected to conceal sex.orientation in COI
The imprisonment that is actually applied for homosexual acts constitutes persecution
As to the country of origin information:
E.g. EU Directive 2013/32/EU on common procedures for granting and withdrawing international protection (preamble 39)
UNHCR country guidelines
International (Human Rights) Organization’s reports

12. Our view
1 June 2017 statement given to the Immigration Service concerning the examining and handling of asylum claims of in particularly vulnerable applicants
General procedural principles as in ECtHR /CJEU judgments
LGBTIQ applicants
Victims of GBV and torture
Calling for applying the law in accordance with Article 22 of the Constitution and Article 1 of the Aliens Law
Human rights perspective
Can be found on our webpage
Ajankohtaista > lausunnot >
We are preparing also another statement concerning Refugee’s right to family life and the best interest of child > expected early 2018

13. Monitoring the Removals
Based on EU Directive (2008/115/EC) on Returning third country nationals:
“Member States shall provide for an effective forced-return
monitoring system.”
Activity whereby it is established and reported whether the return is conducted in a humane manner, respectful of the dignity of the person and in compliance with fundamental rights
Monitoring involves observation of and reporting on forced-return operations without powers of intervention
External and independent monitoring strenghtens transparency in forced returns operations
Protects also escorts against false accusations

14. Last but not least..
* What happens to the individual after removal ? *
ECtHR judgment in X v Swizerland,
(Application no /14), 26 January 2017