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April 5, 2017 OF JUSTICE
HUMAN
TRIBUNAL
RIGH
OF T
Legal Protections INTERNATIONAL HUMANIT
HUMAN RIGHT
ARIANSINSTITUTIONS
COMMUNITY
LAW
Who Is a Refugee? INSTRUMENTS WG on Right
Exceptions: Exclusion and Cessation Clauses INTERNATIONAL COURT
What Rights Do Refugees Have?
OTHER INTERNATIONAL
PLEDWAYEto BODIES
DEVAN SISTM ENT-
Development
REGIONAL INTEGR ATION AGREEMENTS
AMERIKEN POU PWOTEKSYON TRUTHDWAAND RECONCILIA
ENFORCEMENT: CLAIMING ASYLUM JURISPRUDENCE & DOC UMENT COMMISSIONS
Interpretation of Key Terms MOUN all day
DATABASES INTERNATIONAL CRIMIN
National Procedures for Claiming Asylum WG People of
Refugee Status Determinations by the UNHCR UNIVERSAL JURISDICTIO
SELECTED CASE LAW African DescentICTR
Membership in a Particular Social Group
Non-refoulement and Countries of Transit all day
Exclusion Clauses CRP ICTY
ADDITIONAL RESOURCES
Disabilities 17th
Session all dayINTERNATIONALIZED CR
TRIBUNALS
Committee
Migrant Workers INTERNATIONAL LABOU
26th all day ORGANIZATION
OVERVIEW April 6, 2017
COURTS AND TRIBUNAL
WG on RightREGIONAL ECONOMIC CO
States have been granting protection to individuals
to Development
and groups fleeing persecution for centuries; however,
all day
the modern refugee regime is largely the product of
WG People of
the second half of the twentieth century. Like
African Descent
international human rights law, modern refugee law
all day
has its origins in the a ermath of World War II as well CRP
as the refugee crises of the interwar years that Disabilities 17th
preceded it. Article 14(1) of the Universal Declaration Session all day
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of Human Rights (UDHR), which was adopted in 1948, Committee


guarantees the right to seek and enjoy asylum in other Migrant Workers
countries. Subsequent regional human rights 26th all day
instruments have elaborated on this right,
guaranteeing the right to seek and be granted asylum
in a foreign territory, in accordance with the legislation
of the state and international conventions. American IN THE NEWS
ROOM
Convention on Human Rights, art. 22(7); African
[Banjul] Charter on Human and Peoples Rights, art.
ECtH
12(3).
R:
The controlling international convention on refugee Refu
law is the 1951 Convention relating to the Status of sing
Refugees (1951 Convention) and its 1967 Optional Man with
Protocol relating to the Status of Refugees (1967 Intellectual
Optional Protocol). The 1951 Convention establishes Disability Choice
the definition of a refugee as well as the principle of of Residence
Justified
non-refoulement and the rights a orded to those
granted refugee status. Although the 1951 Convention April
definition remains the dominant definition, regional 2017
human rights treaties have since modified the :
definition of a refugee in response to displacement Eigh
crises not covered by the 1951 Convention. t UN Working
Groups, Treaty
The 1951 Convention does not define how States Bodies in Session
parties are to determine whether an individual meets
New
the definition of a refugee. Instead, the establishment
s
of asylum proceedings and refugee status
Clips
determinations are le to each State party to develop.
-
This has resulted in disparities among di erent States
March 31, 2017
as governments cra asylum laws based on their
di erent resources, national security concerns, and
histories with forced migration movements. Despite
di erences at the national and regional levels, the
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provide protection to individuals forced to flee their
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International and regional instruments relating to


refugees include:
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1951 Convention relating to the Status of


Refugees Get the
1967 Optional Protocol relating to the Status IJRC Daily
of Refugees Please enter your email
Universal Declaration of Human Rights (art.
14) Subscribe
American Declaration on the Rights and
Duties of Man (art. 27)
American Convention on Human Rights (art.
22)
Cartagena Declaration on Refugees,
Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama
(Cartagena Declaration)
African [Banjul] Charter on Human and
Peoples Rights (art. 12)
OAU Convention Governing the Specific
Aspects of the Refugee Problem in Africa
Arab Charter on Human Rights (art. 28)
Cairo Declaration on Human Rights in Islam
(art. 12)
European Convention on Human Rights (arts.
2, 3, and 5)
Council Regulation EC No 343/2003 of 18
February 2003 establishing the criteria and
mechanisms for determining the Member State
responsible for examining an asylum application
lodged in one of the Member States by a third
country national
Council Directive 2004/83/EC of 29 April 2004
on minimum standards for the qualification and
status of third country nationals or stateless
persons as refugees or as persons who otherwise
need international protection and the content of
the protection granted
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(art. 3)
African Union Convention for the Protection
and Assistance of Internally Displaced Persons in
Africa

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Convention on the Rights of the Child (art.


22)

Who Is a Refugee?
Article 1(A)(2) of the 1951 Convention defines a refugee
as an individual who is outside his or her country of
nationality or habitual residence who is unable or
unwilling to return due to a well-founded fear of
persecution based on his or her race, religion,
nationality, political opinion, or membership in a
particular social group. Applying this definition,
internally displaced persons (IDPs) including
individuals fleeing natural disasters and generalized
violence, stateless individuals not outside their
country of habitual residence or not facing
persecution, and individuals who have crossed an
international border fleeing generalized violence are
not considered refugees under either the 1951
Convention or the 1967 Optional Protocol.

Countries in the Americas and Africa experiencing


large-scale displacement as the result of armed
conflicts found that the 1951 Convention definition did
not go far enough in addressing the protection needs
of their populations. Consequently, both Article 3 of
the Cartagena Declaration and Article 1(2) of the 1969
OAU Convention extend refugee status to an individual
who owing to external aggression, occupation,
foreign domination or events seriously disturbing
public order in either part or the whole of his country
of origin or nationality, is compelled to leave his place
of habitual residence in order to seek refuge in another
place outside his country of origin or nationality. OAU
Convention Governing the Specific Aspects of the
Refugee Problem in Africa, art. 1(2); accord Cartagena
Declaration on Refugees, Colloquium on the
International Protection of Refugees in Central
America, Mexico & Panama, art. 3. The African Union is
unique in having a convention that specifically
addresses the protection needs of IDPs. African Union
Convention for the Protection and Assistance of

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Internally Displaced Persons in Africa. Finally, the


United Nations High Commissioner for Refugees
(UNHCR) provides protection to IDPs and stateless
individuals in addition to 1951 Convention refugees.

Exceptions: Exclusion and Cessation


Clauses
The 1951 Convention places a number of restrictions
on eligibility for refugee status. Article 1(D) excludes
individuals who, at the time of the 1951 Convention,
were already receiving protection or assistance from
another UN organ or agency. Article 1(D) largely
applied to Koreans receiving aid from the United
Nations Korean Reconstruction Agency (UNKRA) and
Palestinians receiving aid from the United Nations
Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA) and continues to apply to the
latter. UNHCR, Handbook on Procedures for
Determining Refugee Status under the 1951
Convention & the 1967 Protocol relating to the Status
of Refugees, para. 142. Although Palestinians living in
areas where UNRWA operates are eligible for refugee
status under the 1951 Convention. Id. atpara. 143.

Additionally, Article 1(F) excludes individuals:

with respect to whom there are serious


reasons for considering that: (a) he has
committed a crime against peace, a war
crime, or a crime against humanity, as defined
in the international instruments drawn up to
make provision in respect of such crimes; (b)
he has committed a serious non-political
crime outside the country of refuge prior to
his admission to that country as a refugee; (c)
he has been guilty of acts contrary to the
purposes and principles of the United
Nations.

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Individuals who voluntarily avail themselves of the


protection of their country of nationality or habitual
residence or individuals who have received protection
in a third country are also not considered refugees. See
1951 Convention relating to the Status of Refugees,
art. 1(C).

What Rights Do Refugees Have?


Refugee law and international human rights law are
closely intertwined; refugees are fleeing governments
that are either unable or unwilling to protect their
basic human rights. Additionally, in cases where the
fear of persecution or threat to life or safety arises in
the context of an armed conflict, refugee law also
intersects with international humanitarian law.

NON-REFOULEMENT
The basic principle of refugee law, non-refoulement
refers to the obligation of States not to refoule, or
return, a refugee 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. 1951
Convention relating to the Status of Refugees, art.
33(1). Non-refoulement is universally acknowledged as
a human right. It is expressly stated in human rights
treaties such as Article 3 of the Convention against
Torture and Article 22(8) of the American Convention
on Human Rights.

Additionally, both regional and domestic courts have


interpreted the rights to life and freedom from torture
to include a prohibition against refoulement. See R (on
the application of) ABC (a minor) (Afghanistan) v. Secy
of State for the Home Dept [2011] EWHC 2937 (Admin.)
(U.K.); ECtHR, Case of M.S.S. v. Belgium and Greece
[GC], no. 30696/09, ECHR 2011, Judgment of 21
January 2011. The principle of non-refoulement
prohibits not only the removal of individuals but also
the mass expulsion of refugees. See, e.g., African

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[Banjul] Charter on Human and Peoples Rights, art.


12(5).

There are two important restrictions to this principle.


Persons who otherwise qualify as refugees may not
claim protection under this principle where there are
reasonable grounds for regarding the refugee as a
danger to the national security of the host country or
where the refugee, having been convicted of a
particularly serious crime, constitutes a danger to the
host community. 1951 Convention, art. 33(2).

FREEDOM OF MOVEMENT
At the regional level, the rights to seek asylum and
freedom of movement can be found within the text of
the same article. See African [Banjul] Charter on
Human and Peoples Rights, art. 12(1) and (3);
American Convention on Human Rights, art. 22. The
rights are closely related, since the inability to return
to ones country is the basis of an asylum claim while
the ability to leave ones country is a prerequisite for
claiming refugee status under the 1951 Convention.

Freedom of movement, however, is also a key right for


refugees within their host country. See, e.g.,
International Covenant on Civil and Political Rights,
art. 12. Article 26 of the 1951 Convention provides that
States shall a ord refugees the right to choose their
place of residence within the territory and to move
freely within the State. Meanwhile, Article 28 obliges
States parties to issue refugees travel documents
permitting them to travel outside the State unless
compelling reasons of national security or public order
otherwise require.

Freedom of movement is an especially important issue


with regard to protracted refugee situations in
countries with limited national resources and/or
limited legal frameworks for protecting refugees who
nonetheless host large refugee populations. In such
countries, refugee warehousing in which refugees are
confined to refugee camps, thereby restricting their
access to employment and education is commonly
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practiced. U.S. Comm. for Refugees & Immigrants,


World Refugee Survey 2009 (2009). Countries such as
Kenya and Ethiopia specify in their national laws that
the movement of refugees throughout the country
may be restricted and that refugees may be limited to
living in designated areas, namely refugee camps.
National Refugee Proclamation, No. 409/2004, art.
21(2) (Eth.); Refugees Act (2014) Cap. 173 12(3)
(Kenya).

RIGHT TO LIBERTY AND SECURITY OF THE


PERSON
The right to liberty and security of the person is
important in the context of how asylum seekers are
treated within the intended country of refuge. The
national laws of several countries provide for the
detention of asylum seekers at one point or another
during the adjudication of their claims. See, e.g.,8 CFR
235.3(c) (U.S.); Refugees Act (2014) Cap. 173 12(3)
(Kenya).

The detention of asylum seekers is a contentious issue


because of the conditions found in the detention
facilities of several countries. This is particularly an
issue in Greece, a country overwhelmed by the number
of asylum seekers it receives, many of whom use
Greece as a port of entry as they try to access other
European countries. In order to clarify which State has
responsibility for a particular asylum applicant, the
Council of Europe issued Council Regulation EC No.
343/2003 of 18 February 2003 establishing the criteria
and mechanisms for determining the Member State
responsible for examining an asylum application
lodged in one of the Member States by a third country
national (commonly known as the Dublin Regulation).

Under the Dublin Regulation, the State through which


the third country national first entered Europe is
generally considered the State responsible for
adjudicating that nationals asylum claim. See Dublin
Regulation, art. 10(1). As a result, many of these
asylum seekers are returned to Greece to have their

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claims adjudicated. Human rights organizations


including Amnesty International have reported on
unsanitary and over-crowded conditions in Greek
detention centers. Amnesty International, Annual
Report 2012 (2012), 157. Additionally, asylum seekers
have claimed that they did not have access to a
UNHCR representative or information about how to
apply for asylum while in detention. Id. The European
Court of Human Rights (ECtHR) has held in a number
of cases that the conditions in the Greek detention
centers violate individuals rights to humane
treatment and dignity under the European Convention
on Human Rights. See, e.g., ECtHR, M.S.S. v. Belgium
and Greece [GC], no. 30696/09, ECHR 2011, Judgment
of 21 January 2011.

RIGHT TO FAMILY LIFE


The family is seen as the natural and fundamental
group unit of society and is entitled to protection by
society and the State. See, e.g.,International
Covenant on Civil and Political Rights, art. 23(1). In
respect of this right, a number of countries provide for
the granting of derivative status to dependent
relatives. Thus, where an individual is granted asylum,
his or her dependent relatives will also receive
protection through him or her. See 8 U.S.C. 1158(b)(3)
(A) (U.S.); Immigration Rules, 2012, S.I. 2012/11, art.
339Q(iii) (U.K.); National Refugee Proclamation, No.
409/2004, art. 12 (Eth.); Refugees Act (2014) Cap. 173
15 (Kenya). However, should that individuals refugee
status be terminated, the status of dependent relatives
will also be terminated. National Refugee
Proclamation, No. 409/2004, art. 6(1) (Eth.); Refugees
Act (2014) Cap. 173 20(1) (Kenya). Consequently,
these domestic laws do not preclude dependent
relatives from making their own asylum
claims.National Refugee Proclamation, No. 409/2004,
art. 12(5) (Eth.);Refugees Act (2014) Cap. 173 15(4)
(Kenya).

The definition of a dependent relative, however, varies


by the cultural notions of family prevalent in the State
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party. In the U.K., dependents are defined as the


spouse, civil partner, unmarried or same-sex partner,
or minor child accompanying [theapplicant] while in
Kenya, dependent relatives include the brother or
sister of an applicant under the age of eighteen, or
any dependent grandparent, parent, grandchild or
ward living in the same household as the refugee.
Immigration Rules, 2012, S.I. 2012/11, art. 349 (U.K.);
Refugees Act (2014) Cap. 173 2 (Kenya).

OTHER RIGHTS
The 1951 Convention also protects other rights of
refugees, such as the rights to education, access to
justice, employment, and other fundamental freedoms
and privileges similarly enshrined in international and
regional human rights treaties. In their enjoyment of
some rights, such as access to the courts, refugees are
to be a orded the same treatment as nationals while
with others, such as wage-earning employment and
property rights, refugees are to be a orded the same
treatment as foreign nationals. 1951 Convention, art.
16 (refugees are to be granted equal access to the
courts), art. 17 (refugees are to be a orded the same
access to wage-earning employment as foreign
nationals), art. 13 (refugees are to be a orded the
same rights to moveable and immoveable property as
foreign nationals).

Despite these rights being protected in the 1951


Convention and under human rights treaties, refugees
in various countries do not enjoy full or equal legal
protection of fundamental privileges. Ethiopia, for
example, made reservations to Article 22 (public
education) and Article 17 (wage-earning employment),
treating these articles as recommendations rather
than obligations. U.S. Comm. for Refugees &
Immigrants, World Refugee Survey 2009: Ethiopia
(2009). Although not a party to the 1951 Convention,
Lebanon is host to a large population of refugees,
predominately Palestinians. Restrictive labor and
property laws in Lebanon prevent Palestinians from
practicing professions requiring syndicate
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membership, such as law, medicine, and engineering,


and from registering property. Human Rights Watch,
World Report 2014: Lebanon (2014).

ENFORCEMENT:
CLAIMING ASYLUM
NB: The countries profiled here were chosen because
they have historically received a large number of
asylum applications and/or played host to large
refugee populations.

The adjudication of asylum claims is reserved to


individual States. Although some States, namely those
that comprise the Council of Europe, have made an
e ort to adopt a uniform asylum system, international
and regional bodies lack the jurisdiction to adjudicate
individual asylum claims. See Dublin Regulation;
Council Directive 2004/83/EC of 29 April 2004 on
minimum standards for the qualification and status of
third country nationals or stateless persons as
refugees or as persons who otherwise need
international protection and the content of the
protection granted (commonly known as the
Qualification Directive). International and regional
bodies do, however, adjudicate claims asserting
violations of the human rights of refugees and asylum
seekers.

Despite di erences across, and sometimes within,


States, there are a number of commonalities between
the asylum procedures of States who have national
frameworks for granting refugee status. The following
is a general and simplified explanation of these
procedures.

Interpretation of Key Terms


In order to understand how these procedures operate
it is necessary to first identify how certain key terms in

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the 1951 Convention are defined within the domestic


legal systems of particular States.

Refugee States parties to the 1951


Convention and/or the 1967 Optional Protocol
have incorporated the Conventions definition of a
refugee into their domestic law. See, 8 U.S.C.
1101(a)(42) (U.S.); Immigration Rules, 2012, S.I.
2012/11, art. 334 (U.K.); CESDA L711-1
(Fr.) (French); The Immigration and Refugee
Protection Act, S.C. 2001, ch. 27, art. 96 (Can.).
States that are also party to the Cartagena
Declaration or the 1969 OAU Convention have
also incorporated those instruments broader
definition of a refugee, recognizing individuals
fleeing generalized violence and other
breakdowns of public order. See, e.g., Decree No.
3301, May 6, 1992 (Ecuador) (Spanish); Refugees
Act (2014) Cap. 173 3 (Kenya).

Asylum seeker person within a State party


who has applied for recognition as a refugee. If
the asylum seeker is determined to meet the
definition of a refugee they are granted asylum.

Well-founded fear individual States have


interpreted the 1951 Conventions requirement of
a well-founded fear of persecution to require
asylum seekers to show that there is a reasonable
possibility that they will su er persecution if
returned to their country of nationality or
habitual residence. See, e.g., Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987). This is
considered to be both an objective and subjective
standard. Although well-founded fear refers to a
future threat of persecution, individuals who have
faced persecution in the past are presumed to
have a well-founded fear. See, e.g., Immigration
Rules, 2012, S.I. 2012/11, art. 339K (U.K.).

Persecution persecution is not defined in


the 1951 Convention or the 1967 Optional

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Protocol. In an attempt to provide guidance on


what constitutes persecution, the Council of
Europe included a non-exhaustive list in the
Qualification Directive of acts that could be
considered persecution such as:

acts of physical or mental violence, including


acts of sexual violence; legal, administrative,
police, and/or judicial measures which are in
themselves discriminatory or which are
implemented in a discriminatory manner;
prosecution or punishment, which is
disproportionate or discriminatory; denial of
judicial redress resulting in a disproportionate
or discriminatory punishment; prosecution or
punishment for refusal to perform military
service in a conflict, where performing
military service would include crimes or acts
falling under the exclusion clauses as set out
in Article 12(2); acts of a gender-specific or
child-specific nature.

Qualification Directive, art. 9(2). The persecution


at issue also does not need to have been
committed by a State actor; persecutory acts
committed by non-state actors may qualify under
the 1951 Convention where the State is unwilling
or unable to protect the individual claiming
refugee status. See, e.g., id.atart. 6.

On account of there must be a causal nexus


between one of the five grounds and the
persecutory act. In practice, this means that
applicants must show that one of the protected
grounds was or will be at least one central reason
for the persecution. See, e.g., 8 U.S.C. 1158(b)(1)
(B)(i) (U.S.).

Race, religion, nationality the asylum


applicant need not actually possess the racial,
religious, or national characteristic in question

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provided that characteristic was attributed to the


asylum seeker by the persecutor and is the reason
for the persecution See, e.g., Qualification
Directive, art. 10(2).

Political opinion like the above three


grounds, political opinion may be imputed to the
asylum seeker. There is some debate within the
U.S. as to whether neutrality may qualify as a
political opinion for the purposes of obtaining
asylum. Compare Matter of Acosta, 19 I&N Dec.
211 (BIA 1985) (no persecution based on political
opinion where refusal to join work stoppage
resulted in threats and violence from militants
because refusal was motivated by desire to earn
wages) with Bolanos-Hernandez v. I.N.S., 767 F.2d
1277, 1284-5 (9th Cir. 1985) (persecution based on
political opinion where former military member
refused to join guerrillas because he wished to
remain neutral).

Membership in a particular social group


there is still a lack of consensus as to what
constitutes a particular social group and whether
classes of persons not included in the 1951
Convention who nonetheless face persecution,
such as women and homosexuals, fall within this
category. (See Selected Case Law, below) The
Council of Europe has stated that persons may be
considered to constitute a particular social group
when they share a common immutable
characteristic, that is, something innate to their
being or so fundamental to their being that they
cannot be expected to change it, and have a
distinct identity within their country of nationality
or habitual residence because they are perceived
as being di erent by that society. Qualification
Directive, art. 10(1)(d) (applying standard
articulated in Matter of Acosta, 19 I&N Dec. 211
(BIA 1985) (U.S.)).

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Particularly serious crime the definition of a


particularly serious crime varies by country. The
UNHCR considers a particularly serious crime to
be a capital crime or a very grave punishable act.
The UNHCR recommends balancing the severity
of the crime against the severity of the
persecution feared but this balancing test has not
been widely adopted. See Ali v. Achim, 468 F.3d
462 (7th Cir. 2006) (rejecting UNHCR balancing
test). In the U.S., 8 U.S.C. 1158(b)(2)(B)(i),
provides that an aggravated felony shall
constitute a particularly serious crime. Under the
statute, aggravated felonies may include felonies
for which the potential sentence is imprisonment
for one year or more. (For withholding of removal,
the potential sentence must be for at least five
years.)

War crimes, Crimes against Humanity


States apply the definition provided in
international humanitarian law, as articulated in
Articles 7 and 8 of the Rome Statute of the
International Criminal Court. See A.B. v. Refugee
Appeals Tribunal and Minister for Justice, Equality
and Law Reform [2011] IEHC 198 (H. Ct.) (Ir.).

National Procedures for Claiming


Asylum
Typically, refugee status determinations or asylum
adjudications are conducted by an o icial from a
designated government department or agency. These
o icials should have a solid knowledge of refugee law.
In most cases, the o icial will interview the asylum
seeker to evaluate his or her evidence and credibility.
The burden is on the asylum seeker to prove that he or
she meets the definition of a refugee and asylum
seekers are encouraged to supply as much supporting
evidence as possible. Supporting evidence may take
the form of country reports, NGO reports, news
articles, a idavits, or the in-person testimony of
witnesses.
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In accordance with Article 31 of the 1951 Convention,


States parties provide in their domestic law that an
applicants irregular entry (i.e., without an entry visa or
other documentation) will not have a negative e ect
on the asylum seekers application. See, e.g., Refugees
Act (2014) Cap. 173 11(3) (Kenya). Some States,
however, do place time restraints on how many days
a er entry into their country an asylum seeker may
make an application. Compare 8 U.S.C. 1158(a)(2)(B)
(U.S.) (imposing a one-year filing deadline on asylum
applications, although there are some limited
exceptions for extraordinary or changed
circumstances) with National Refugee Proclamation,
No. 409/2004, art. 13 (Eth.) (stating that asylum
applicants shall apply within fi een days of entry into
Ethiopia). In addition to making a claim at the border,
individuals in deportation proceedings may also raise
an asylum claim, provided their claim is timely.

If the o icial finds that the asylum seeker has a well-


founded fear of persecution based on one of the five
grounds, he or she can grant the applicant asylum.
Individuals granted asylum receive a residence permit
for themselves as well as one for any dependent
relatives. See, e.g., The Immigration and Refugee
Protection Act, S.C. 2001, ch. 27, art. 95(1)(a) (Can.); 8
U.S.C. 1158(b)(3)(A) (U.S.). States provide that where
the Government denies an asylum application, the
asylum seeker is to receive an explanation of the
reasons for the denial. See, e.g., Refugees Act (2014)
Cap. 173 11(6) (Kenya). Asylum seekers have a right
to appeal their negative decision. Generally, an
applicant may not be removed unless they have
exhausted all of their available remedies. See CESEDA,
L731-3 (Fr.); but see, Human Rights Watch, France:
Amend Immigration Bill to Protect Asylum
Seekers(noting that under French law appeal does not
suspend expulsion for those placed in the fast-track
procedure).

Individuals who are ineligible for asylum may


nonetheless be eligible for more limited forms of

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protection. These include protection under Article 3 of


the Convention against Torture, which forbids States
parties from extraditing or returning an individual to a
country where they risk being tortured or subjected to
cruel, inhuman, or degrading treatment or
punishment. States also grant complementary forms
of protection, such as withholding of removal,
subsidiary protection, and Temporary Protected
Status to individuals who do not meet the definition of
a refugee but whose life or freedom would be in
danger if returned to their country of nationality or
country of habitual residence. 8 U.S.C. 1254, 1231(b)
(3) (U.S.); C.E.S.D.A. L712-1 (Fr.).

Refugee Status Determinations by


the UNHCR
There are a number of States who host large refugee
populations but who are either not a party to the 1951
Convention and 1967 Optional Protocol or who do not
have laws or policies in place to address asylum
claims. These States include a large number of
countries in the Middle East and Asia with significant
refugee populations, including Egypt, Jordan, India,
Malaysia, Lebanon, and Pakistan. SeeUNHCR, States
Parties to the 1951 Convention Relating to the Status
of Refugees and the 1967 Protocol.In such cases,
refugee status determinations are carried out by field
o ices of the United Nations High Commissioner for
Refugees (UNHCR).

The refugee status determination (RSD) conducted by


the UNHCR is similar to asylum adjudications
conducted by States. A er registering with the local
UNHCR o ice, asylum seekers meet with an Eligibility
O icer who examines their application and supporting
documentation. All asylum seekers have the right to an
individual in-person interview and may be
accompanied by a legal representative. UNHCR,
Procedural Standards for Refugee Status
Determination under UNHCRs Mandate 4.3.1-3 (2003).
Asylum seekers are permitted to bring witnesses, but

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UNHCR policy is that the testimony of witnesses


should not be given in the presence of the applicant
and should never be given in the presence of other
witnesses or third parties. Id. at 4.3.9. All applicants
are informed in writing of the Eligibility O icers
decision. Id. at 6.1. Where the eligibility o icer has
decided not to award refugee status, the applicant is
entitled to an explanation of the negative
determination. Id. Applicants who have not been
granted refugee status are entitled to an appeal. Id. at
7.1.1.

All individuals granted refugee status as well as


derivative relatives are issued a UNHCR Refugee
Certificate which stipulates that the holder is a refugee
and is therefore entitled to protection, including
protection from refoulement. Id. at 8.1. Unfortunately,
in practice, issuance of a Refugee Certificate does not
always guarantee an individuals ability to work or
protect them from being detained in their host
country. See UNHCR, Global Focus: Malaysia 2016
Operational Context.

UNHCR normally determines refugee status on an


individual basis; however, the agency will a ord prima
facie refugee status to groups in cases where a large
group of individuals has been displaced and the need
for protection is especially urgent.
UNHCR,Resettlement Handbook, ch. 3, at 77 (2011). A
recent example of this was the UNHCRs 2007 decision
to give prima facie refugee status to asylum seekers
from southern and central Iraq. Id.

In addition to conducting RSDs and providing


assistance to refugees and other persons of concern,
UNHCR facilitates resettlement to third countries
where voluntary repatriation or local integration is not
feasible.

SELECTED CASE LAW

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The following cases concern some of the most


contentious issues in refugee law today.

Membership in a Particular Social


Group
In Matter of Kasinga, 21 I&N 357 (BIA 1996),
the U.S. Board of Immigration Appeals (BIA) held
that young women who were members of the
Tchamba-Kunsuntu Tribe of northern Togo who
had not been subjected to female genital
mutilation, as practiced by that tribe, and who
opposed the practice constituted a particular
social group.

The criteria for identifying a particular social


group in the U.S., however, are not clear. In Matter
of Acosta, 19 I&N Dec. 211 (BIA 1985), the BIA held
that members of a taxi-driver cooperative in El
Salvador did not constitute a social group
because their membership was not immutable.
Meanwhile in Matter of C-A-, 23 I&N 951 (BIA 2006)
the BIA held that non-criminal, uncompensated
informants in Colombia did not constitute a social
group because they did not share a common,
immutable characteristic and because they were
not a visible group, as the very nature of their
work required them to work in secret. In Benitez
Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), a
case concerning a withholding of removal claim
filed by an El Salvadoran national, the U.S. Court
of Appeals for the Seventh Circuit not only
rejected the social visibility requirement
formulated by the BIA, it also criticized the BIA for
inconsistently applying its own criteria, pointing
to the fact that the BIA itself did not always
require social visibility when evaluating whether
individuals could be said to be members of a
particular social group. Particular social group
has been defined since asa group of persons all
of whom share a common, immutable
characteristic. See Cordoba v. Holder, 726 F.3d

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1106, 1114 (9th Cir. 2013) (quoting Matter of


Acosta, 19 I&N 211, 233 (BIA 1985)).

In the joined cases, Islam (A.P.) v. Secretary of


State for the Home Department; Regina v.
Immigration Appeal Tribunal and Another Ex
Parte Shah (A.P.), [1999] (H.L.) (appeal taken from
England) (U.K.), the U.K. House of Lords held that
women in Pakistan constituted a social group,
granting asylum to two women from Pakistan
who had fled domestic violence. Cf., Matter of R-
A-, 22 I&N 906 (BIA 1999) (denying asylum to
woman claiming membership in social group
identified as Guatemalan women who have been
intimately involved with Guatemalan male
companions, who believe women are to live
under male domination). According to the House
of Lords, whether such a broad definition of a
social group qualifies under the Convention will
depend on evidence of how that group is treated
in the country of nationality or habitual residence
at issue. Id. (citing In Re G.J. [1998] INLR 387 (New
Zealand Refugee Status Appeals Authority), a New
Zealand decision granting asylum on the basis of
membership in a particular social group to a
homosexual from Iran.)

In A and Another v. Minister for Immigration


& Ethnic A airs (1997) 142 ALR 331 (Austl.), the
High Court of Australia rejected the asylum claim
of Chinese nationals who claimed to have a well-
founded fear of persecution because they sought
to have a second child despite Chinas one-child
only policy. The asylum applicants claimed fear of
being subjected to forced sterilization and argued
they were members of a particular social group
that consisted of those who having only one
child do not accept the limitations placed on
them or who are coerced or forced into being
sterilized. The Court rejected this formulation as
too circular because it was not independent of the

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persecution feared. By contrast, the U.S. Congress


has recognized forced sterilization as a per se
ground of persecution in its legislation. See 8
U.S.C. 1101(a)(42).

Non-refoulement and Countries of


Transit
In Sale v. Haitian Ctr. Council, Inc., 509 U.S.
155 (1993),the U.S. Supreme Court held that the
U.S. was not in violation of its non-refoulement
obligation when it returned Haitians interdicted
on the high seas because the Haitians were not
within U.S. territory and therefore the non-
refoulement obligation did not apply. The Inter-
American Commission on Human Rights (IACHR)
rejected this reasoning in IACHR, Report No.
51/96, Case 10.675, Haitian Centre for Human
Rights(United States), 13 March 1997. The IACHR
held that the U.S. had violated the petitioners
right to seek asylum as well as their right to life,
liberty, and security of the person when it
summarily returned interdicted Haitians many
of whom were subsequently arrested by Haitian
authorities without providing them with a
meaningful opportunity to have their claims
adjudicated. The IACHR also held that the U.S.
had violated their right to freedom from
discrimination, noting that a much more
favorable policy was applied to Cubans and
Nicaraguans.

In Abdi and Another v. Minister of Home


A airs(734/10) [2011] ZASCA 2 (15 February 2011)
(S. Afr.), the South African court rejected the
Governments arguments that two Somali
nationals one an asylum seeker and the other a
recognized refugee being held in the
Inadmissibility Facility detention center at the
airport while awaiting transfer to Kenya were
outside the scope of South African law. The Court
held that it was immaterial that the two had le

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South Africa for Namibia prior to their detention


and, as illegal entrants, were subject to a
Namibian deportation order.

In ECtHR, Case of M.S.S. v. Belgium and


Greece [GC], no. 30696/09, ECHR 2011, Judgment
of 21 January 2011, the ECtHR held that the
Belgian government had violated an asylum
seeker from Afghanistans rights under Article 3 of
the European Convention on Human Rights by
returning him to Greece, the country he had
initially transited through, to adjudicate his
asylum claim because it was common knowledge
that the Greek government lacked adequate
asylum procedures, thus, placing the applicant at
risk of being returned to Afghanistan where his life
or freedom would be in danger.

In M70/2011 and M106/2011 v. Minister for


Immigration and Citizenship & Anor, [2011] HCA
32 (Austl.) the Australian High Court held that the
Ministers declaration under 198A of Australias
Migration Act that asylum seekers who arrived on
the excised territory of Christmas Island could be
sent to Malaysia where their asylum claims would
be considered was not valid because he had failed
to adequately consider the factors set forth in
198A(i)-(iv), namely that Malaysia was not a party
to the Convention, had no domestic law
recognizing the status of refugees, and that the
Arrangement between Australia and Malaysia in
which Malaysia would recognize refugees and
adjudicate claims in accordance with
international standards was not legally binding.

In ACommHPR, Institute for Human Rights


and Development in Africa (on behalf of Sierra
Leonean refugees in Guinea) v. Guinea,
Communication No. 249/02, 36th Ordinary
Session, December 2004, the African Commission
on Human and Peoples Rights (ACHPR) found

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that a proclamation by then-President Lasana


Cont made over national radio stating that Sierra
Leonean refugees should be arrested, searched
and confined to refugee camps resulted in
widespread violence and discrimination against
Sierra Leonean refugees to such a serious degree
that many were e ectively forced to repatriate to
Sierra Leone despite the ongoing civil war. The
ACHPR held that the treatment of Sierra Leonean
refugees violated the principle of non-
refoulement and the Sierra Leoneans right to
freedom from mass expulsion. See
also ACommHPR, Organisation mondiale contre
la torture, Association Internationale des jurists
dmocrates, Commission internationale des
jurists, Union interafricaine des droits de
lHomme v. Rwanda, Communications No. 27/89-
46/90-46/91-99/93, 20th Ordinary Session,
October 1996 (expulsion of Burundi refugees
living in Rwanda without opportunity to contest
their removal violated their rights under the
African Charter); but see ACommHPR, Curtis
Francis Doebbler v. Sudan, Communication No.
235/00, 46th Ordinary Session, November 2009
(no violation where Sudan announced, in
coordination with UNHCR, cessation of Ethiopian
refugee status following the end of the Mengistu
regime and where there were procedures in place
for Ethiopians who still had a well-founded fear of
persecution to have their claims heard.)

Exclusion Clauses
TERRORISM
In Matter of S-K-, 23 I&N 936 (BIA 2006), the
U.S. Board of Immigration Appeals (BIA) held that
a Burmese national who had provided
approximately 700 dollars to the Chin National
Front, which was at the time considered a Tier III
terrorist organization under U.S. law, was
inadmissible on the grounds that she had

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provided material support to a terrorist


organization. It was irrelevant that the U.S.
Government supported the National Democratic
League, an ally of the Chin National Front, and
that the Chin National Front fought against the
Burmese Government, to which the U.S. was
opposed. In the wake of controversy following the
broad application of the material support bar to
refugees and asylum seekers, the U.S.
Government has subsequently applied a
discretionary waiver to several organizations,
including the Chin National Front, permitting
refugees who had supported these organizations
to enter the U.S. as resettled refugees or claim
asylum.

WAR CRIMES AND CRIMES AGAINST


HUMANITY
Negusie v. Holder, 555 U.S. 511 (2009): The
U.S. Supreme Court remanded to the BIA to
determine whether the Refugee Act, which
incorporated the 1967 Optional Protocols
exclusion of individuals who had committed war
crimes and crimes against humanity from refugee
status, included an exception for persecutory acts
committed under duress. The Court held that the
BIA, in denying Negusie, an Eritrean nationals
asylum application, had erred in relying on
Fedorenko v. United States, 449 U.S. 490 (1981),to
find there was no duress exception because
Fedorenko concerned a claim arising out of the
Displaced Persons Act and not the 1980 Refugee
Act.

A.B. v. Refugee Appeals Tribunal and Minister


for Justice, Equality and Law Reform, [2011] IEHC
198 [2008] 667 Ir. Jur. Rep. (5th May, 2011) (H.Ct.)
(Ir.): Irish High Court granted leave to apply for
judicial review where Refugees Appeals Tribunal
had failed to conduct an adequate assessment of
whether a former Taliban commander had
personally participated in war crimes and crimes
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against humanity. The Court adopted the


standard articulated in Joined Cases C-57/09 and
C-101/09 Bundesrepublik Deutschland v. B und
D [2010] ECR I-000, whereby there is a permissive
presumption that any person who occupied a
high position within a terrorist organization
participated in the activities articulated in Article
1F of the 1951 Convention but authorities must
nonetheless conduct an assessment to determine
the role the individual personally played in
carrying out such acts.

PARTICULARLY SERIOUS CRIME


Matter of Carballe, 19 I&N 357 (BIA 1986): BIA
held that aliens who had been convicted of a
particularly serious crime within the U.S. were
presumptively dangerous to the community,
denying withholding of removal to a Cuban
national. See also, Ali v. Achim, 468 F.3d 462 (7th
Cir. 2006) (a irming BIAs holding that the
Attorney General may consider other crimes not
listed in the INA to constitute a particularly
serious crime for preclusion from withholding of
removal, rejecting contrary opinion of UNHCR
guidelines, denying withholding of removal to a
Somali national.)

Conseil detat [CE] [Council of State] April 7,


2010, Rec. Lebon 2010, IX-X, 319840 (Fr.): Council
of State granted asylum to Iraqi national who had
participated in an honor killing while still a minor
holding that the Commission des Recours des
Rfugis should have considered whether family
pressure lowered his free will and whether his
young age may have made him especially
vulnerable to such pressure. (Decision is only
available in French but an English summary can
be found here.)

R (on the application of) ABC (a minor)


(Afghanistan) v. Secy of State for the Home Dept

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[2011] EWHC 2937 (Admin.) (U.K.): In determining


whether there is material before the Home
Secretary that justifies a serious belief that the
individual who claims protection has committed a
serious crime, the Home Secretary is required to
look at all the circumstances of the case
including: the law of England and the law of the
country where the crime is said to have occurred,
the individual factual matrix of the alleged crime
including any potential defenses, the age and
circumstances of the applicant, and the likely
punishment if found guilty. To be considered a
serious crime, there must be a high degree of
culpability on the part of the alleged o ender.
Here, the Home Secretary erred in finding there
were serious grounds for believing the applicant
had committed a particularly serious crime when
she had found that the applicant, a minor from
Afghanistan, had likely committed the alleged
crime unintentionally and failed to consider his
age and circumstances.

ADDITIONAL
RESOURCES
UNHCR Handbook for the Protection of
Internally Displaced Persons
U.N. O ice for the Coordination of
Humanitarian A airs
Guiding Principles on Internal Displacement
UNHCR Handbook on Procedures and
Criteria for Determining Refugee Status under the
1951 Convention and 1967 Protocol relating to the
Status of Refugees
International Organization for Migration, an
intergovernmental organization which, in
addition to other activities, assists governments
in developing migration policies and helps return
individuals whose asylum claims have been
rejected

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U.S. Committee for Refugees and


Immigrants, Our Work with Refugees
UNHCR, Figures at a Glance
UNHCR, Asylum in the European Union: A
Study of the Implementation of the Qualification
Directive
UNHCR RefWorld, database for searching
asylum law and cases from a variety of countries

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