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The right to asylum: what does it entail

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1 The right to asylum: what does it entail
The right to asylum: what does it entail? Vladimiras Siniovas Associate Legal Officer, UNHCR Vilnius

2 What does it mean ? Asylum
The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

3 Asylum 1. [mass noun] (also political asylum) The protection granted by a state to someone who has left their home country as a political refugee: she applied for asylum and was granted refugee status [as modifier]: his asylum application was refused. 1.1 Shelter or protection from danger: we provide asylum for those too ill to care for themselves /asylum The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

4 Asylum http://www.yourdictionary.com
a sanctuary, as a temple, where criminals, debtors, etc. were safe from arrest a place where one is safe and secure; refuge the protection given by a sanctuary or refuge or by one country to refugees from another country The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

5 Asylum Protection granted to Aliens who cannot return to their homeland. A secure place of refuge or shelter. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

6 Asylum A variety of meanings
No internationally recognised binding legal defintion Key points: safety, security, shelter, protection The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

7 Asylum The term asylum means the protection offered by a state on its territory or elsewhere to an individual who came to seek it. Institute du Droit International Bath Conference, 1950 The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

8 Asylum Protection from jurisdiction of the country of origin/human rights violations; this would entail a permission to stay/reside (a residence permit) and access to rights (work, social rights etc.) Granted by a State On its tterritory or elsewhere: territorial asylum and diplomatic asylum To an individual (i.e. foreigner) Who came to seek it, i.e. to an asylum seeker. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

9 The Right to Asylum Everyone has the right to seek and to enjoy in other countries asylum from persecution. Universal Declaration of Human Rights, Article 14. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

10 The Right to Asylum The right of an individual to seek asylum
Everyone has the right to seek [...] The right of a state to grant asylum, and Everyone has the right [...] to enjoy (fr. „bénéficier“) in other countries asylum from persecution The right of an individual to be granted asylum ????????????? The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

11 The Right to Asylum Other international instruments ?????
1951 Convention Relating to the Status of Refugees Considering that the grant of asylum may place unduly heavy burdens on certain countries [...] No other references to asylum; no obligation to grant a residence permit BUT: the REFUGEE definition and the obligation to respect the principle of non-refoulement (Article 33) The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

12 The Right to Asylum Refugee - owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

13 The Right to Asylum 1967 DECLARATION ON TERRITORIAL ASYLUM
The grant of asylum by a State to persons entitled to invoke article 14 of the Universal Declaration of Human Rights is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State. It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum (Article 1 (3)) No person [seeking asylum] shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution (Article 3 (1)) The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

14 The Right to Asylum International Human Rights instruments
Do not provide for the right to asylum Prohibit - either explicitly or implicitly – refoulement Relevant treaties: ICCPR, UN Convention Against Torture, ECHR The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

15 The principle of non-refoulement
The 1951 Refugee Convention: Article 33 (1) - Prohibition of expulsion or return ("refoulement") 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 detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

16 The principle of non-refoulement
Human Rights Treaties prohibit return to a country where the concerned person may face torture or inhuman or degrading treatment or punishment. E.g., ECHR, Article 3: No one shall be subjected to torture or to inhuman or degrading treatment or punishment The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

17 The principle of non-refoulement
ECtHR, Soering v. the United Kingdom “It would hardly be compatible with the underlying values of the Convention ... were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture [….]” (Para 88). The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

18 The principle of non-refoulement
The return of a person granted refugee status or a complementary form of protection The return of an asylum-seeker to his/her country of origin or to another country where s/he would be at risk of persecution, or irreparable harm. The return of a refugee or an asylum-seeker to a third country where s/he risks being sent back to his/her country of origin or to another country where s/he would be at risk of persecution, torture or irreparable harm ( “chain-refoulement” or “indirect refoulement”) The non-admission of an asylum-seeker or refugee to a territory and the procedure at a point of entry (land, sea, airport) which may jeopardize his/her life or freedom. Interception/push backs at sea, including on the high seas, which may jeopardize the life or freedom of persons of concern to UNHCR. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

19 Non-refoulement and asylum
Non-refoulement prohibits: Rejection at the border (leading to return to a country of origin); Push backs or return from the high seas (Hirsi); Return following a procedure that does not ensures a rigorous scrutiny of the claim (access to a proper asylum procedure as a remedy against refoulement) The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

20 Lithuania and Poland: UNHCR concerned by Chechen refusals
UNHCR is concerned about reports of Chechen asylum seekers being barred from entering Lithuania and Poland following the recent Chechen terrorist attack in Moscow. Last week, Lithuanian border guards refused entry to 26 Chechens and returned them to Belarus. At least 17 of them were detained by Belarus authorities and subsequently put on a train bound for Moscow. Their current whereabouts are unknown. In neighboring Poland, charity groups have reported dozens of cases of Chechens being turned away from the country’s eastern border since the October 23 terrorist attack on a Moscow theatre by Chechen separatists. The UNHCR bureau in Warsaw and our office in Stockholm, which handles the Nordic and the Baltic states, are seeking urgent clarification from Polish and Lithuanian authorities. While we understand legitimate security concerns following the Moscow attack, we are nevertheless concerned that a blanket refusal to allow in Chechen asylum seekers could put many people at risk. Poland and Lithuania are both signatories of the 1951 Refugee Convention and candidates for membership in the EU. A policy of refusing to allow in Chechen asylum seekers would constitute a violation of the two countries’ national laws and international commitments. Story date: 15 November 2002 ( The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

21 Non-refoulement and asylum Hirsi
… [The Court] reiterates here the importance of guaranteeing anyone subject to a removal measure, the consequences of which are potentially irreversible, the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to substantiate their complaints. ... Having regard to the circumstances of the instant case, the Court considers that the applicants were deprived of any remedy which would have enabled them to lodge their complaints under Article 3 of the Convention ... with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced (paras ). The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

22 Non-refoulement and asylum Asylum requests
Practical Handbook for Border Guards (Schengen Handbook) A third-country national must be considered as an applicant for asylum/international protection if he/she expresses – in any way – fear of suffering serious harm if he/she is returned to his/her country of origin or former habitual residence. The wish to apply for protection does not need to be expressed in any particular form. The word “asylum” does not need to be used expressly; the defining element is the expression of fear of what might happen upon return. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

23 Non-refoulement and asylum Asylum requests
Practical Handbook for Border Guards (Schengen Handbook) All third-country nationals who express the wish to apply for asylum/international protection at the border (including airport and seaport transit zones) must be given the opportunity to do so. To this end, border authorities must inform the applicants, in a language they may reasonably be expected to understand, of the procedure to be followed (how and where to make the application), as well as of their rights and obligations. In order to avoid misunderstandings, and to be sure that applicants are adequately informed of their rights and obligations, as well as of the procedure, if an applicant for international protection does not have sufficient knowledge of the language spoken in the Member State concerned, the services of an interpreter must be called upon where necessary. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

24 State practice and asylum
Industrialized states, as a rule, grant asylum to persons who meet the requirements of the refugee definition. The grant of refugee status (recognition) = grant of asylum, including residency and other relevant rights. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

25 EU asylum law TFEU, Article The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the [Refugee] Convention […] and other relevant treaties. 2. For the purposes of paragraph 1, the European Parliament and the Council […] shall adopt measures for a common European asylum system […]. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

26 EU asylum law EU Charter of Fundamental Rights
Article 18, Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community. The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.

27 EU asylum law Recast Qualification Directive: Member States shall grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with Chapters II and III (Art. 13). As soon as possible after international protection has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least 3 years and renewable, unless compelling reasons of national security or public order otherwise require […]. (Art. 24 (1)). The detention of refugees, asylum-seekers and stateless persons is a global challenge. The phenomenon of irregular migration as well as mixed population movements can strain national asylum systems and their efficient operation. Some governments as a response have expanded the use of detention, and this has also been extended to asylum-seekers. Yet there is also no empirical evidence that the use of immigration detention deters irregular migration. A number of States criminalize asylum-seekers through subjecting them to criminal forms of detention, such as prisons; while the conditions in many places of detention do not conform to basic human rights standards.


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