May 14, 2020

Asylum in International Law

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ASYLUM

Author: Akanksh Deekonda, NLIU-Bhopal

What is Asylum?

Asylum is the protection granted as a Political refugee by a state who has left their Home country. An Asylum Seeker is a person who has been displaced from his home country to another state. This Asylum Seeker is also called a “Refugee”. However, every person who gets displaced may not be a Refugee. A person gets refugee status if he applies for the country to get refugee protection and that application subsequently granted by the country in which he wants to seek asylum. A person becomes an “Asylee” if the applicant’s claim for the Refugee is granted. An Asylum seeker is a person who applies to get Asylum, once he gets that status, he can be called a Refugee.

Every person has a right to seek Asylum according to Article 14 of UDHR, the universal declaration of Human Rights. Asylum, in general, is granted to protect the people legally who are traveling from one country to the other country. These people are afraid to stay in their home country. It is granted to those people who are unwilling or unable to live in their home country. This is because of the reason for persecution or any other well-founded fear of persecution on various accounts regarding Religion, Nationality, or even a membership in any political opinion or social group.

Asylum is an application that is made by someone during their lifetime for a country which he wishes to go to. The application regarding the same should before 1 year of entrance to a country according to law. This rule is not without any exceptions:

Any individual can apply to get Refugee status by filling and subsequently submitting an application to the country’s Immigration and Citizenship Authorities;
If the person who seeks Asylum has a hearing in front of an immigration judge or has a removal proceeding, this person can move forward this asylum application in the court;
The decision given by the Immigration and Citizenship authorities which denies the Refugee status of the applicant, this applicant can still file an appeal before the Board of Immigration Appeals or any appropriate Court of Appeal.
Some Advocates provide necessary assistance during all the time of this Asylum process to the public. This assistance extends to providing the applicants with any help concerning an appeal if it got rejected at first instance.

What is a Political Asylum

Political Asylum is an Asylum that is sought by someone when they are scared to live in their own country. This Asylum will make sure that they will go to another country. The permission that the other country gave to someone to allow him to live in that country is called Political Asylum.

The applicants who seek Asylum generally regard them as the victims of Denigration, Physical Harm, or any other Threats. These people are very subject to the violation of fundamental rights.

Article 14 of the UDHR (Universal Declaration of Human Rights) and other rules in the International Human Rights Law affirms political asylum. The countries who have ratified to the (UNC) United Nations Conventions Regarding the status of refugees, should allow the eligible persons.

One of the main Criteria for some Applicants to Qualify is that he seeks Asylum because he faces the following situations in his Home Country. Situations like:

Membership into a specific Religion/ Social Activity or any Social group.
Any opinions which are politically handed.
Depending upon the sexual orientation or the personal appearance of the applicant, etc.

People who sought political asylum are often called “refugees”.

Economic Refuge

Economic Refugees are not political refugees. Economic refugees are Applicants who travel from a poor country to a richer country so that they would work and make ample sums of money. These people after earning, often send back to their families.

What is the Convention on Political Asylum, 1933?

On December 10^th, 1948, the Universal Declaration of Human Rights was formed which subsequently led to the establishment of the Charter of Human Rights. After the formation, the General Assembly has strongly declared to abide with the principle which makes all human beings on earth to enjoy their freedom and their rights without any discrimination.

The United Nations, on its various occasions, has manifested its concern for the Refugees. They had also ensured that the Refugees are to be assured and endeavored with the widest possible exercise of the Fundamental Freedoms and the other rights.

The 1933 convention has come with a new impact and came as a desirable agreement that revised and consolidated all the International agreements which deal with the Refugee status existed on that date. This new convention also extended the scope and protection by the means of all such agreements.

The major aspects which are brought up by the convention are dealing with some countries which unduly place heavy burdens in order to gain Refugees to ease them and find a satisfactory solution for all the existing problems. The convention has soon recognized an international scope and nature by expressing its rules and regulations to all States. It also recognized the humanitarian and social causes and problems that are faced by the refugees and tried to prevent them.

The convention comprises of General Provisions, obligations regarding Non-discrimination, religion, rights granted by the convention, Exceptional methods, Provisional Methods. It also deals with Juridical Status, Welfare, Administrative measures, Executor and transitory Provisions, and all other final Clauses.

What is the benefit of asylum?

People whom the Refugee Status are entitled to get the benefits of Asylum. These benefits include:

These people can live in the country they wish for getting Asylum;
The Asylee could initiate court proceedings. Those include filing for their minor children and spouse;
The Asylee can even apply for a permanent residence. He can even apply for Citizenship.
He can travel anywhere outside the country.

What is the process for gaining asylum?

The following procedure to be followed for any individual who desires to seek a Refugee Status in another country.

The application needs to be taken from the destined country’s Immigration and Citizenship authorities. This application can even be filed or taken online for some countries like the USA. This is according to Article IV A of 1951 of Refugee convention.
All the requisite things are done which are mentioned in the Application and the same to be submitted to the authorities after successful completion of things mentioned under the application.
There are certain rules like it should be filed before a certain period before entering the country. For Example, the application for the United States should be made in a year, if one wishes to enter the United States. There can be even some exceptions to this deadline.
If the authorities reject the application, He can still file an appeal in the Board of Immigration Appeals or any appropriate Court of Appeal. The procedure for filing the same would be done according to the Refugee convention of other Refugee laws concerning the countries. Article 16 of the refugee convention gives the right to access the courts.
If the applicant is with removal proceedings which subsequently made him have a hearing in front of Immigration judge. This person can make the Asylum application in this hearing.

Who can grant Asylum?

The grant of Asylum is generally issued by the Immigration Authorities of the country in which he seeks Asylum. This is recognized as the official Refugee status of that particular person. The person who sought Refugee Status is recognized as a “refugee” who is governed under The Refugee Convention of 1951. He may be even governed under The European Convention on Human rights or any other Existing Refugee laws.

If asylum is sought out by European Countries, the signatories of the refugee convention often create their policies to access the protection status to asylum seekers. The applicants for refugee status can be rejected or accepted changes concerning time and concerning country.

What is the Role of Asylum under International Law?

Under the principles of International Law, the right to seek Asylum is a diplomatic embassy. It can be used because the embassy buildings are exterritorial. Moreover, it represents a small portion of people who are sent from one state to the other state (Receiving state). But this theory is ruled out today. The reason for seeking refuge has been modeled out with time and it is no more given to establish Diplomatic relations.

The Present-day, the refugee is used as an Immunity where the embassy depends in the country to waive the application of Jurisdiction who have actually committed some crimes in their home country. It has also been confirmed by the International Court of Justice asylum could be granted on “humanitarian grounds” concerning the protection of political offenders who had committed any disorderly or violent action.

In the hands of justice, the ‘arbitrary action’ would be substituted by the principle of “rule of law”. This international law also directs that any ambassador should not offer hospitality in no means for a person who is termed as a ‘Political offender’. The latest version of SATOW(An European convention) tells that it is the right to give asylum to political refugees has been denied and this denial has been established as a doctrine in the house of diplomatic agents.

The United States has also taken similar lines, a little later i.e. in the 20^th Century. For America, it came through as an experience where the missionary, unfortunately, had given asylum to a Persian Jew in his residence which later made the Government issue controversial statements like the US government declared that the domiciliary rights of US Citizens in Persia may not be expanded to embrace the protection by them of Persian subjects. By 1856, The consular and diplomatic relations thereby positively inhibited.

The French were also followed within the lies of the United States by saying that Humanity in its true form engages us to receive only a small number of Men who are expelled from their home, not for any crime or demerit.

This same line has been followed by every Nation later, who has the right to refuse to admit an alien into its territory who has come to evident danger or cause the country any serious trouble. The present-day, A country has no absolute right to grant exile at will and settle any political offender. It has become an absolute discretionary for a state to decide Asylum for an applicant. The applicant must seek the permission of the sovereign of that country. If at all, if the permission is refused, he is bound to submit for that country. The country which expounds/ deports thereby must establish definite and just for preventing/prohibiting him from offering an Asylum. The man once refused and has no further demand for it.

What are the different types of Asylum available?

There are 2 general types and 2 special types of methods to claim asylum in any Country. The general type comprises an “affirmative asylum” process which concerns the individuals who are not involved in removal proceedings as such. The second type is the “defensive asylum process”, which is for the individuals who are in removal proceedings.

Removal proceedings are these proceedings where the state government orders the applicant which are to be removed or have to be deported from the country in which he seeks Refugee status.

Affirmative Asylum:

Any applicant who hasn’t been listed in the removal proceedings can subsequently apply for asylum by the Government of the country in which he wants Refugee status. It happens through the Immigration and Citizenship Authorities of that country which can be governed under the Refugee Convention, 1951; other Conventions or the Refugee laws of that country.

If the asylum officer has not granted the asylum status to the person, the applicant in this stage is referred to have removal proceedings. This is a stage where the applicant can request or renew the asylum by undergoing the defensive process and having an appearance before the immigration judge. Any information about the affirmative asylum process can be found on the websites which are maintained by the country concerning the “Immigration and citizenship services”

Defensive Asylum:

Any applicant who has been through the removal proceedings can apply for the concerned Asylum defensively. This is done firstly, by applying to the “immigration judge” at the “(EOIR) The Executive Office for Immigration Review” through the “Department of Justice”. In simple terms, an Asylum can be applied through the defence against one’s removal from that country.

Any more detail about this process can be found on the websites which are maintained by the country concerning the “Immigration and citizenship services”.

Individuals after an apprehension, are still in the removal proceedings and are brought into custody by country police. The United States can be taken as an example.

entering into this country without any proper legal documents or
entering into the country which violates the immigration status.
The people who were sought out by “Customs and Border Protection (CBP)” and tries to enter the country without “proper documentation”
The people who found to have been entered by carrying a credible “torture” or “fear of persecution”.

In both of the processes, The applicants always have a right to seek a lawyer as mentioned earlier. Besides, Some countries policy these people deprived of getting lawyers in immigration court unless they can afford to get one.

Other forms of protection (Special Types)

There are few other types of protection in some countries like the US besides the Defensive Asylum.

These are “Withholding of Removal” or the “Convention Against Torture (CAT)”.

Withholding of removal

if an applicant does not fit for asylum, He still is considered for “withholding of removal”. If the applicant has been granted with ‘withholding of removal’, then he would certainly not be eligible to get permanent status in that particular country like getting a “Green Card” would be difficult. Despite this, these persons are often allowed to work or remain lawfully in the refugee-country.

To get ‘Withholding of Removal’, the applicant must demonstrate that it is expected for him to face persecution concerning if he is deported to his home country for any of the grounds like Membership in a particular group, Nationality, Race, Religion or even political opinion. The standard of proof lies on him for ‘withholding of removal’ which would be higher than that of asylum. One needs to show at least a 50% chance that they would be persecuted.

Relief under the Convention Against Torture (CAT)

If the applicant is fear of receiving torture in case of deportation to his home country, he would be qualified as relief under the CAT (Convention Against Torture). To Obtain this, the applicant must prove that he is more likely to be tortured. This torture can be either directly by the government or maybe with its acquiescence in case of his return to that country. “Acquiescence” generally means that the government knows about the torture but could not afford to control it.

What is the UNHCR Refugee Convention?

The UNHCR Convention of 1951 is a Refugee Convention. It is a very important document that forms the basis of the UN Refugee Agency. It has been Ratified by 145 nation parties. The convention also defines the term ‘refugee’ and it outlines the rights of the displaced parties. It also entails the legal-obligations of States for protection.

The principle on which the convention was formed is ‘non-refoulment’. In simple terms the non-return. It asserts that a Refugee should not be returned to a country in which they face serious threats to their life or freedom. This is today, taken as a customary rule of international law.

The UNHCR serves as the ‘guardian’ for the 1951 Convention and even its 1967 Protocol. The legislation entails the States to cooperate with the organization and ensure that the rights of refugees are protected and respected.

What is the Dalai- Lama case?

The famous Dalai-lama who has also been seen as the Buddha’s incarceration entered Indian territory in April 1959. The then Prime Minister Jawaharlal Nehru respectfully welcomed him and praised him. The communist group is anyway unhappy with his act.

Dalai-lama flew from China to India because of the indictments of the Chinese Communist Party. The Chinese ambassador directed the Indian government to send Dalai-Lama back. He did so, by calling the Indian Foreign Office. Indian then has immediately followed the 1951 Refugee Convention as Dalai-Lama fits the category, has issued the Political Asylum to him.

This made him Dalai-Lama to seek Refugee status in India and subsequently refused to convey his statement to the Chinese Government. There is a single constitutional and legal government of Tibet and it will always be wherever the Dalai Lama would go

The Prime Minister then issued a statement saying that the Dalai Lama had actually come along with his followers who are outnumbered to a total of 80 people who had come along the Towang Division through the check post of Chutangmu. India has decided to give all of them a Refugee Status. This was the first scenario where India has faced Refugee law after its independence.

The Dalai Lama’s presence in India as a political refugee exacerbated the strained relations between New Delhi and Peiping. It took Red China’s prestige to its lowest point which was subsequently judged from parliamentary debates, newspapers, and private comments in official circles.

This had badly constrained the relations between India and China. These two countries have exchanged their notes on many controversial issues regarding borders even today. The Communists of both the countries have repeatedly published their maps and disputes had subsequently arisen between them.

In 1964 however, Nehru decided to launch “The Liaquat pact” which allowed the minorities of countries like Pakistan to seek Refuge in India. This was done to prevent minority persecution in countries like Pakistan.

What are the other case laws regarding Asylum in India?

In the case of Gurunathan and others vs. Government of India which subsequently acted as a precedent in the matter of A. C. Mohd. Siddique vs. Government of India and others, The Madras Highcourt has clearly expressed its unwillingness to allow any Sri Lankan refugees to return by using Sri Lanka against their will.

In the case of P.Nedumaran vs. Union Of India before the same Madras High Court, Sri Lankan refugees had prayed for a mandamus letter directed the Union of India and the State of Tamil Nadu to allow UNHCR officials to test the willingness of the refugees to return to Sri Lanka and to allow those refugees who did not wish to return to live in Indian camps. The Hon’ble Court was pleased to argue that “since the UNHCR has been involved in determining the voluntariness of the return of the refugees to Sri Lanka and is, therefore, a World Agency, it is not for the Court to consider whether or not the consent is voluntary.” Furthermore, the Court acknowledged the competence and impartiality of UNHCR representatives.

The Bombay High Court in the matter of Syed Ata Mohammadi vs. Union of India was pleased to direct that “There is no question of deporting the Iranian refugee to Iran because the UNHCR has accepted him as a refugee.” However, the Hon’ble Court allowed the refugee to return to the country he wanted. Such an order is in accordance with the globally agreed ‘non-refoulement’ standards of refugees into their country of origin.
The Supreme Court of India has in a number of cases had actually stayed deportation of refugees such as Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab and in N.D.Pancholi vs. State of Punjab & Others.

In the matter of Malavika Karlekar vs. Union of India, The Supreme Court ordered the expulsion of Burmese refugees from the Andaman Island because “their application for refugee status was pending and the prima facie case for granting refugee status is pending.” The Supreme Court’s judgment in the Chakma refugee case clearly stated that no one shall be deprived of his or her life or freedom without the proper legal procedure.

What are the rights under Asylum?

The “Asylee” or a person with refugee status has three basic categories of rights. They are territorial, extraterritorial, and neutral. The rights under the 1951 refugee convention are dealt with in article 5.

Territorial Rights.

Those rights are given within the territorial limits of the asylum-providing nation. It is an apparent exception to the “extradition” norm. It is mainly employed and intended to protect the individuals suspected of any political crimes such as Desertion, Sabotage, Sedition, and Treason. It became common and widespread by excluding accused persons of the certain terr

Extraterritorial Rights

This form of privilege refers to “asylum” that is usually given in consulates, embassies, merchant vessels, legations, and warships that are of foreign territory and are thus given within this territory of the country requesting protection.

Such privileges are often given in diplomatic asylum-bearing embassies and are mostly in search of arguable occasions. For instance,

Neutral Rights

States employ certain rights to exercise neutrality during a conflict. It also provides in its territories to give refuge to troops of belligerent states if these troops apply during the war to internment.

In general, It is a right for a state to grant asylum to any individual, but it is not the right of that individual to be granted Asylum by the state in question. This principle has also been established in the “Universal Declaration of Human Rights (UDHR)” convention according to which the right to seek and to enjoy asylum in other countries from persecution does not explicitly provide the right of asylum.

The other conventions like Convention relating to the Status of Refugees. This was adopted by the “United Nations (UN) Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons” in 1951. It did not create any right of asylum for the people who are seeking it. It enumerates pertains only to the refugees who are “lawfully in” or the ones who are “lawfully staying in” the state which is offering shelter.

The other Individual rights of Asylum which are failed to get inserted because of the unsuccessful efforts to articulate. These are:

The UN General Assembly Declaration on Territorial Asylum of the year1967. This contained the objective exceptions to its non -return provision which pertains to national security and its safeguarding to its national population, and
A proposed Convention on Territorial Asylum, which was never materialized.

When can an Asylum be refused?

It often happens When a country which cannot either recognize the refugee status of the asylum seekers or When it cannot see the Asylum seekers as the legitimate migrants by treating them as “illegal aliens”. When asylum claims to be rejected, the asylum seeker is said to be called as “refused asylum”. He can also be called a “failed asylum seeker”. In some countries, these failed asylum seekers are often allowed to either remain temporarily or can return to their home country voluntarily. Article 31 to 33 of the 1951 refugee convention deals with the question of termination or refusal of Asylum. Some countries even make violent decisions like forcibly turning them out. This has been most often seen in Deportation after immigration detention. The grant of Asylum or a Refugee status can be refused under certain grounds:

Right to remain temporarily

In cases where Asylum was not granted, the applicant still has a chance to remain in the country temporarily for some time. The reasons behind this grant were CAT or persecution which have already been discussed earlier. In countries like the UK which follow European Conventions, the refused cases may be granted a temporary stay on the grounds of humanitarian protection. This temporary stay is usually up to 5 years or has discretionary leave.

Deportation

In general, the Refugees cannot be deported or forced to go back to their original country on the lines of return, which is against the principles of international law. The Asylum seekers have failed in many cases to be considered as “refugees”. These people are vulnerable and face voluntarily or involuntarily, the significant risks when getting deported.

The deportation of Asylum seekers having serious medical problems or not guaranteed by themselves for their safe return to their Home-country would go against the principles of International Law. There are instances where these people are deported by face all the risks or even when it is not safe for their return. The European conventions like the UK authorities are always been accused of giving improper attention to the medical condition of deportee or torture they face.

Deportees are often separated from their families who can be permanently or temporarily continue to remain in that country. The people, for example, the younger persons may not be allowed to deport to their Home-country in their entire life. They even sometimes cannot speak the language. There are instances where they are unaware of anyone with whom they have connections in their country. These people even have chances to get traumatized through experiences that are made in detention and there is no guarantee that they cannot be detained again when they enter their Home-country. The worst instance is getting them persecuted.

When can the Asylum be terminated?

The temporary refugee status of an Asylee can only get terminated. It does not deal with permanent status.

The temporary refugee status can be terminated in the following instances.

When there is an expiration of the set term as “Refugee”.
When the reasons established to get temporary status no longer exist.
When there is an instance that the Refugee leaves for Croatia.
The Asylum gets terminated if the Asylee seeks protection against some other law or International Treaty.
When the Asylee enjoys international protection or has regulated sojourn in the third country.
When the Asylee has been pronounced the safety or protective measure of Expulsion.

Conclusion

The article tries to produce a brief analysis and an in-depth understanding of the concept of Asylum. It started with defining the basic terms like Refugee, Asylum Seekers, Asylee, etc. and then explaining what Asylum is and produced all the relevant details like the benefits of obtaining such to get citizenship status, etc. A refugee whose Asylum application has been rejected could go to an appeal. There are certain authorities which issue Asylum like the immigration and the Citizenship authorities. The article then sought to explain the types of Asylum which are categorized into 2 general types, the affirmative and the defensive and also 2 special types: the CAT and Withholding of removal. The Asylum who has been enjoying the Refugee status would certainly have some rights which are categorized into the extraterritorial, extra-territorial, and neutral type.

Special attention has been given in explaining Asylum with the international Law aspects, it brought requisites that every Asylum law of a particular country couldn’t allow certain types of people to get Refugee status. These people include the one who has committed crimes, political offenders, etc.

The article finally undertook to examine under what conditions could asylum-seekers be punished for illegal entry and presence in a country and whether the Country’s legal regulation was compatible with this international regime. The Perspectives from international, European, and human rights law perspective, concerning this very narrow way of this study. The article also gave a detail, in brief, when a Refugee status or Asylum be terminated or refused.

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