Post No.: 0918
Furrywisepuppy says:
So what is the typical procedure that an asylum seeker goes through?
Firstly, the journey from their country of origin to their country of destination can take several years and take a circuitous route. It’s often expensive for the impoverished migrants, who may encounter criminal smugglers who specifically exploit migrants. It’s dangerous and sex or labour traffickers may snare them. And even if they reach their destination, they might not be well received by the authorities or population there. So it’s frequently a truly ruff ordeal.
Examinations of individual cases around the world depend on which human rights treaties a relevant State have signed and/or ratified, with the help of customary international law. But the main sources of refugee law at the international level include (not exhaustively) – the Universal Declaration of Human Rights (albeit this is a non-binding text), the Refugee Convention, and the Convention on the Rights of the Child. At a regional level, there’s the European Convention on Human Rights in Europe, and the African Charter on Human and Peoples’ Rights in Africa, for example. Plus there are each country’s national/domestic laws and institutions, which ultimately make the decisions in the field of asylum and refugee status.
The asylum procedure typically has an administrative phase (the processing of applications and determining someone’s status), and a judicial phase (the handling of any appeals). Whilst their appeal is being examined, asylum seekers are considered illegal immigrants yet they shouldn’t be returned to their country of origin unless their appeal falls through.
Taking the UK as an example – the UK Visas and Immigration office examines international protection requests and interviews asylum seekers. In case of refusal, an appeal before the First-tier Tribunal (Asylum Support) is possible. The UN High Commissioner for Refugees is the main institution responsible for protecting and assisting refugees – internationally as well as internally displaced – and in some countries, it contributes as a decision-making body, often alongside their national authorities.
As of posting, the UK government’s policy to send asylum seekers to Rwanda is controversial, both in legality and political acuity.
Not all forced migrants and applicants for international protection are asylum seekers. There exist protection procedures other than asylum procedures. An application for protection in a general sense is contrasted to an application for international protection in the sense of the Refugee Convention where asylum seekers apply to technically become recognised as refugees.
Besides asylum seekers – in the EU under Directive 2011/36/EU at least – there exist secondary or subsidiary protections available for victims of human trafficking, economic exploitation or modern slavery. These people can be found in sectors such as hospitality, construction, domestic work, personal assistance and prostitution. Under this Directive, victims of human trafficking are eligible for a residence permit (under certain quite hard-to-meet conditions that involve a successful identification and prosecution of the perpetrators).
As EU citizens, unaccompanied minors from inside the EU can move freely within the EU if they’re economically autonomous, thus they aren’t specially protected; although there are soft law texts that recommend that member States adapt their procedures to safeguard particularly vulnerable people.
There’s currently no regulated tailored procedure at the international or regional level set up to protect unaccompanied foreign minors either; although again there are some soft law recommendations. It’s down to each State whether or not they adapt their procedures for such minors. They are, however, typically appointed a legal guardian who’ll assist them through the process of seeking asylum or some other durable protection.
A person mightn’t qualify for asylum yet they may not be returned to a country where they’re at risk of inhumane and degrading treatment – including on medical grounds because they’re seriously ill and won’t receive the care they need there. But there are again no clear legally-binding international or regional texts in this area.
A person might submit several applications for protection if they fall under multiple categories e.g. for being a victim of human trafficking as well as being an unaccompanied minor.
Transmigrants are those who are in transit in a third country. They maybe come from country A, but are passing through country B, in the process of trying to get to country C. But they might get stuck in country B, either for practical/material reasons (e.g. a dangerous channel crossing) or legal reasons (e.g. the Dublin Regulation – briefly discussed in Post No.: 0895 – would send them back to the first country they entered into the EU if they choose not to take any administrative action). Forced or vulnerable migrants mightn’t know what to do in these situations thus guidance centres, independent from the authorities, are usually set up in transmigrant camps.
The Red Cross might be present to provide some shelter, food, social support, medical assistance, and schooling for children.
The law for parties to the Refugee Convention may be harmonised – but not the procedures to implement it in practice. Thus there isn’t a standardised asylum procedure but a wide variety of national, or potentially regional, procedures. The ‘Handbook on Procedures and Criteria for Determining Refugee Status’ offers non-binding guidance though.
In the EU, Directive 2013/33/EU establishes a minimum harmonised level of reception conditions for all asylum seekers, including the identification of vulnerable persons as early as possible, the obligation to provide decent accommodation and material conditions, and the provision of information on their furry rights. It also provides for access to schooling for children, medical and social support for families, and vocational training and employment for adults. Vulnerable people (e.g. minors, unaccompanied minors, disabled persons, elderly persons, pregnant women, single parents with young children, victims of torture, rape, trafficking or other serious forms of physical or mental violence) should receive reinforced psychological and medical assistance and other benevolence. The detention of persons in closed centres is authorised but cannot be automatic and is subject to other conditions e.g. only if necessary where there’s a risk that the applicant might abscond while they’re being identified.
The asylum seeker’s story/account gives them the opportunity to provide all the necessary information relating to why they fled or were exiled from their country, and their journey to the host country. This firstly involves an interview with a protection officer. After the competent authority has gathered the facts based on the applicant’s story, the asylum seeker’s need for protection will then be assessed. The roles of interpreters and lawyers in accompanying asylum seekers are vital.
A reasonable level of proof is required, and may come in the form of the refugee’s personal account, evidence from experts like physicians and psychologists, news related to the country of origin, and via any other legal means.
The applicant’s ability to recount their historical narrative will however be affected by cultural factors (e.g. their language and dialect, and things getting lost in translation), institutional factors (e.g. the local reception conditions and asylum procedure, and the applicant’s trust in the administrative authority to keep any information given to them confidential) and personality factors (e.g. the vulnerability, state of mental and/or physical health, age, gender, stress, mental trauma and memory of the applicant, and the personality and mood of the assessor too). It’s also understandable that a person who has fled for their life may have difficulties in establishing certain documents and material evidence to prove their claims due to their hasty flight.
Usually in law, the burden of proof is on the plaintiff, not the accused, and the benefit of any doubt shall be in favour of the accused. But here – taking the aforementioned challenges into account – the burden of proof is shared with the authority examining an asylum seeker’s application. Woof.
Also, asylum seekers are given the benefit of the doubt as long as their stories are credible, coherent, consistent and free of major contradictions, and they’ve cooperated with the authorities. Women who face the risk of e.g. sexual violence, sexual exploitation, forced sterilisation, early or forced marriage, or female genital mutilation, can be particularly hard to prove thus must especially be given the benefit of the doubt. They also have the right to not be heard by a person of the opposite sex. Children who’ve faced violence also bear a lighter burden of proof.
Past persecution is a serious indication of a well-founded fear of future persecution, unless there are strong reasons to believe it’ll not reoccur. It’ll be up to the State to prove that the situation back at the asylum seeker’s country of origin has sufficiently improved. It’s pretty much down to the authority to prove why it thinks there are significant reasons to believe that persecution will not repeat.
There must be reasonable time limits and a rigorous examination of each case. The prioritisation or acceleration of a person’s application may be allowed under strict conditions.
The reception procedure of asylum seekers in regions of the world outside of the EU depends on existing national or regional legislations there. States often call on the UN High Commissioner for Refugees to assist them in the reception process, particularly when there’s a massive inflow of migrants.
So there’s an administrative phase. Then there’s also a judicial phase i.e. a process for appealing a decision before a neutral court if required and requested by an applicant. This usually confers a right to remain on the territory of a host State whilst the appeal is being examined.
By the way, as an aside – an embassy is not technically the territory of the State that uses it as its embassy. However, ‘diplomatic asylum’ does allow a fleeing person to seek asylum whilst inside an embassy within their home country; although this isn’t guaranteed by the Refugee Convention.
Although there are no universal, international courts competent in asylum matters, the UN Human Rights Committee (which monitors compliance with the UN International Covenant on Civil and Political Rights), and the UN Committee against Torture (which monitors compliance with the UN Convention against Torture), are two international supervisory bodies that can deal with individual appeals. The UN Committee on the Rights of the Child (which monitors compliance with the UN Convention on the Rights of the Child) also contains provisions on asylum. For not being courts, they don’t issue judgements, but their opinions and findings may help individual cases.
At the EU supranational, regional level though, there are two courts – the European Court of Human Rights, and the Court of Justice of the European Union. These jurisdictions can however only be accessed after exhausting national/domestic remedies. <1% of all cases will ever reach this stage of proceedings but they’re critical mechanisms because the case law of these bodies influence national decisions.
There’s an International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted in 1990. The Committee on Migrant Workers monitors compliance with this Convention. But over three decades later, this Convention has only been ratified by a quarter of UN member States; of which there are no prevalent migrant-receiving States and no States from the ‘Global North’ (who, under present political leaderships and policies, generally place more emphasis and investment on the repression of irregular migration!) It has thus been largely a failure.
Therefore monitoring bodies that protect human rights more generally, or the rights of a particular category of persons like children, are applied to refugees instead. Legislation is the first port of call when looking for answers. But if this is silent or obscure on a matter then case law and doctrine will attempt to provide guidance. And the body of international case law in the field of asylum and migration has increased significantly over the past few decades.
Woof. The field of refugee law is a dynamic one, with new challenges like environmental/climate refugees that must be broached. But this concludes our short series on international refugee law. I hope you’ve found it enlightening. If you think you’ve learnt something new and important then please share it via the Twitter comment button below.
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