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The War Report: Armed Conflict in 2014 edited by Bellal, Annyssa (1st December 2015)

Part III Thematic Chapters, B Protection, 5 Refugees and asylum seekers from conflict-affected States, A International refugee law

Kristin Hausler

From: The War Report: Armed Conflict in 2014

Edited By: Annyssa Bellal

A.  International refugee law

International refugee law aims to protect individuals seeking asylum from persecution and those who have been formally recognized as refugees with a specific set of provisions. Fleeing an armed conflict is neither a requirement nor a guarantee to be recognized as a refugee. Although refugee law overlaps with international human rights law and humanitarian law, it is here considered separately. The way international human rights law and humanitarian law protect asylum seekers and refugees is considered thereafter.

Refugee law has been enshrined in treaties, notably the United Nations Convention Relating to the Status of Refugees (‘1951 Refugee Convention’) and its Optional Protocol Relating to the Status of Refugees (‘1967 Optional Protocol’).23 The Convention was adopted to respond to the cross-border movements of population which were the result of the Second World War. Although it was meant to address the situation of individuals having been displaced because of a war, it was not drafted in a manner that would allow all war-affected migrants to obtain the refugee status and the rights associated with it. Its scope of application was restricted in various ways. In particular, it was limited temporarily as it was only applicable in relation to events which occurred before 1 January 1951. Furthermore, contracting States could also limit the application of the Convention geographically to events which occurred in Europe only.24

Following a new refugee crisis in the late 1950s and early 1960s, there was a need to broaden the temporal and geographical scopes of the 1951 Refugee Convention, which led to the adoption of the 1967 Optional Protocol. While the temporal limitation was removed entirely, contracting States could retain the geographical limitation to events which occurred in Europe if they wished to do so.25 Both of these binding instruments (p. 428) have been widely ratified, with 145 States being party to the 1951 Refugee Convention and 146 States being party to the 1967 Optional Protocol.26

Scope of Application: Who is a Refugee?

The 1951 Refugee Convention first establishes the requirements that asylum seekers need to fulfil in order to be recognized as refugees by providing a definition of the term ‘refugee’.

According to its Article 1(A)2, a ‘refugee’ is any person who:

… 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.

According to this definition, there are three key requirements for someone to qualify as a refugee. The first requirement is the presence of a well-founded fear of persecution. Although the 1951 Refugee Convention does not explain what constitutes persecution, some indications as to its meaning may be inferred from a look at other articles of the Convention. For example, Article 31(1) states that no penalties should be imposed on ‘refugees who, coming directly from a territory where their life or freedom was threatened’, referring to the definition contained in Article 1, which includes the risk of persecution. Article 33(1) provides for the principle of non-refoulement, according to which a refugee cannot be returned to the State ‘where his life or freedom would be threatened’. Therefore, a fear of persecution, as enshrined in the 1951 Refugee Convention, may include a fear of a violation of one’s right to life or right to liberty. However, persecution is not necessarily limited to facing serious risks to life or liberty but may extend to risks of other human rights violations, including a violation of the principles of equality and non-discrimination.27 Therefore, the term persecution must be understood not only by reading other Convention articles, but also through a consideration of human rights treaties,28 the EU Qualification Directive,29 the domestic asylum laws which have (p. 429) implemented the 1951 Refugee Convention,30 the relevant case law, as well as other authoritative publications.31 What is clear is that persecution implies serious human rights violation(s), as the result of systemic mistreatment or an isolated act of torture.

In addition, the fear of persecution must be based on one (or more) of the following grounds: ‘race, religion, nationality, membership of a particular social group or political opinion’. For example, in a case before the Attica Regional Asylum Office in Greece,32 an applicant who had fled Syria was granted refugee status because, as a Christian he was considered an enemy of both parties to the conflict. Furthermore, the Syrian State was likely to consider him as a political opponent to the regime as he had lived abroad. Thus his chances of being arrested and mistreated upon return were deemed reasonable.

The formulation adopted in the 1951 Refugee Convention was based on the prohibition of discrimination, which had already been adopted in Article 2 of the Universal Declaration of Human Rights and Article 14 of the 1950 European Convention on Human Rights.33 However, the 1951 Refugee Convention omitted some of the grounds for discrimination covered by those two instruments, such as sex or language, as it was originally drafted to protect a specific category of persons, i.e., Jews fleeing Nazi Germany.

The second requirement for someone to qualify as a refugee is being outside his or her country of nationality or outside the country of his or her former habitual residence. Therefore, the 1951 Refugee Convention does not apply to IDPs as an international border must have been crossed by the person who has been forcibly displaced.

According to the third requirement, to be considered a refugee one must be unable or unwilling, owing to a well-founded fear of being persecuted, to benefit from the protection of his or her country of nationality or former habitual residence.34 States have an obligation to protect all individuals under their jurisdiction against human rights abuses, including those that may be considered to amount to persecution. While a State’s government itself shall not carry out acts amounting to persecution, it must also ensure (p. 430) that non-State actors, including non-State armed groups, do not carry out such acts.35 Any evidence of a lack of State protection from certain human rights abuses, including those committed by non-State actors, may assist in determining the likelihood of persecution and the legitimacy (‘well-founded’) of a fear thereof.

In addition to defining refugees, a few distinctions should also be made. For example, an ‘asylum seeker’ is someone who has applied for asylum but whose refugee status has not yet been granted. The qualification of ‘statelessness’ applies to persons who are not considered as nationals by any State but who have not generally been displaced across a border.36 Finally, refugees are different from ‘migrants’, a term which refers to individuals who have chosen to move in order to improve their living conditions, such as ‘economic migrants’ who seek better work opportunities.

Applying International Refugee Law to War Refugees

Given the above requirements, the 1951 Refugee Convention is, in principle, not applicable to individuals who have crossed an international border to escape a situation of generalized violence, even if such situation amount to an armed conflict. Anyone wishing to benefit from the protection afforded by the 1951 Refugee Convention must fulfil these three requirements, including a well-founded fear of persecution. However, many of those individuals who have been forcibly displaced across borders are fleeing ongoing armed conflicts or the consequences of past hostilities, which often entail the destruction of their homes, means of subsistence, and all the infrastructure necessary for them to enjoy their rights. While there may be situations, notably in conflicts with an ethnic dimension, where individuals are fleeing because of a fear of persecution based on their ‘race, religion, nationality or membership of a particular social group’, as required under the 1951 Refugee Convention, this is not always the case.

In order to fill this gap left by the 1951 Refugee Convention and its Optional Protocol, additional instruments providing for refugee protection were adopted at the regional (p. 431) level.37 Both the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention), which was adopted by the Organization of African Unity,38 and the non-binding 1984 Cartagena Declaration on Refugees, applicable for the Central American area, expand their definitions of refugees to include persons fleeing armed conflicts or other situations of violence, in addition to the category of persons already protected under the 1951 Refugee Convention.39 Thus, according to Article 1(2) of the 1969 OAU Convention a refugee is also someone 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’.40 According to Article 3 of the Cartagena Declaration refugees are also those ‘who have fled their country because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’.41 A similar understanding of the term ‘refugee’ was also adopted by the Asian–African Legal Consultative Organization in its 1966 Bangkok Principles on the Status and Treatment of Refugees,42 as well as by the League of Arab States in its 1994 Arab Convention on Regulating Status of Refugees in the Arab Countries.43 A broader understanding of the causes behind the flight of refugees was necessary in those regions given the large-scale displacement resulting from armed conflicts.

(p. 432) The refugee protection was also expanded within the EU Framework with the adoption of the Qualification Directive in 2004 and the recast Qualification Directive in 2011.44 Although both Directives embrace the narrow definition of refugee,45 as contained in the 1951 Refugee Convention, a complementary form of protection is afforded, under certain conditions, to those persons who have fled a war-caused generalized violence.46 This ‘subsidiary protection’ is provided to those who do not fall under the refugee definition but who are believed to ‘face a real risk of suffering serious harm’ if returned to his or her country of origin or former habitual residence.47 The Directives define ‘serious harm’ as either the death penalty or execution, torture or inhuman or degrading treatment or punishment, or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.48 For example, in MOJ & Ors (Return to Mogadishu) Somalia CG v Secretary of State for the Home Department,49 the Immigration and Asylum Chamber of the United Kingdom Upper Tribunal assessed the levels of conflict in Mogadishu and found that they did not amount to ‘a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in a situation of international or internal armed conflict’ under the Qualification Directive.50 With regard to an applicant from Afghanistan, a Hungarian court granted subsidiary protection holding that, although (p. 433) the country information was neither consistent nor coherent, the risk of serious harm was present as a consequence of indiscriminate violence in a situation of internal armed conflict, including in Kabul.51

Thus, under the EU system, if an individual comes from an area where there is indiscriminate violence, such as the one generated by the Syrian armed conflict, he or she must thus be granted the subsidiary protection as provided for in the Qualification Directive. However, if an individual, who comes from a conflict zone is also at personal risk of persecution, he or she may be granted the refugee status.52 In a case before the Belgium Council for Alien Law Litigation,53 it was decided that a Syrian national of Kurdish origin, who had sought refugee status on the grounds of his political involvement in the Syrian Kurdish Democratic Party, should not be confined to subsidiary protection as a result of the conflict in Syria but should be granted the refugee status as a result of his political activities.

Moreover, certain States have also adopted an expansive definition of the term refugee or have developed administrative or legislative measures to protect persons fleeing armed conflict specifically.

Limitations on Eligibility for Refugee Status

In addition to the above-mentioned requirements that one needs to fulfil in order to be eligible to be granted refugee protection, the 1951 Refugee Convention includes a number of exclusion clauses. This is the case of those individuals who, at the time of the 1951 Convention, were already receiving protection or assistance from another organ or agency of the United Nations than the UNHCR, at the time the Convention was adopted.54 This was mostly applicable to Koreans receiving aid from the United Nations Korean Reconstruction Agency (UNKRA) and Palestinians receiving aid (p. 434) from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), for which it continues to apply.55 Another exclusion clause applies to persons who are given the same rights and obligations as nationals in their State of refuge.56 Finally, the 1951 Refugee Convention does not apply to persons who are seriously believed to have committed a war crime or another serious crime.57 The case law concerned with this particular exclusion clause is the object of Chapter 12 in this volume.58

In addition to the above-mentioned limitations, the refugee status is also meant to be limited to particular circumstances. It can thus be considered temporary, concluding when the situation that led to someone being recognized a refugee has ceased to exist.59

The Rights of Refugees and the Obligations of States

Being granted the refugee status under the 1951 Convention means benefiting from its system of protection, which includes a number of specific rights for the refugees, as well as obligations for its State parties.

Rights of refugees

Non-refoulement principle

One of the most important rights provided under the 1951 Refugee Convention is the right not to be forcibly returned where the individual’s ‘life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This is known as the ‘non-refoulement’ principle, which is now considered part of customary international law and therefore binding on all States, whether they are a party to the Convention or not.60 It has also been incorporated in several international human rights treaties,61 as well as in the Fourth Geneva (p. 435) Convention of 1949.62 The principle of non-refoulement is also prohibited in a number of regional human rights instruments, either explicitly or through interpretation.63

In EM (Eritrea), R (on the app of) v Secretary of State for the Home Department,64 the UK Supreme Court stated that, while the asylum seeker must prove the risk of ill-treatment upon removal to a particular country, there is no requirement that the risk of ill-treatment be systematic.

Non-refoulement applies with regard to everyone seeking refuge, including asylum seekers, with the exception of those, such as terrorists, who can be reasonably believed to represent a danger for the security of the country where they are situated.65 One does not need to have been granted the refugee status to benefit from it. When this principle is violated or threatens to be, the UNHCR intervenes with the relevant authorities, and, if necessary, will inform the public. In some circumstances, persons facing refoulement may have recourse to relevant human rights mechanisms, as non-refoulement is a principle which has also been enshrined under international human rights law, as discussed below. Importantly, the ECHR and the Convention Against Torture, which both link the prohibition of torture with the principle of non-refoulement, have a broader understanding of non-refoulement than the 1951 Refugee Convention as they extend it to everyone, including those presenting a security concern such as terrorists.66

Other rights

Under the 1951 Refugee Convention,67 refugees have other specific rights including the right not to be punished for illegal entry into the territory of a contracting State (Article 31), the right not to be expelled unless strict conditions are met (Article 32), the right to public relief and assistance (Article 23), and the right to be issued identity and travel documents (Articles 27 and 28).

The 1951 Refugee Convention also contains a number of rights which were later enshrined in human rights treaties, including both civil and political rights, such as the right to freedom of religion (Article 4), the right to freedom of movement within the territory (Article 26), the right to access the courts (Article 16), and rights falling with the category of economic and social rights, such as the right to work (Articles 17–19), the right to housing (Article 21), and the right to education (Article 22). However, the 1951 (p. 436) Refugee Convention does not provide any explanation as to the content of these rights but, rather, provides that refugees must be treated in the same way as nationals in relation to them, or, with regard to certain aspects of these rights, at least as other foreign nationals. Therefore, it is necessary to know what rights nationals do enjoy within a particular legal system in order to understand what rights belong to refugees situated on the same territory. In particular, it is useful to consider the relevant international human rights obligations of the State in question, as discussed below.

States may grant those rights to refugees who do not fall within the 1951 Refugee Convention, in particular if they have adopted an expansive definition of the term refugee. Thus, refugees from armed conflicts, although they do not necessarily fear persecution, may benefit from a form of international protection. This is for example the case within the EU, where the Qualification Directive afford a subsidiary protection to asylum seekers originating from conflict zones, as already mentioned above.

Obligations of States

While States have no obligation to grant asylum,68 State parties to the 1951 Convention have nevertheless a number of obligations, such as cooperating with the UNHCR in the exercise of its functions, including with its supervision of its implementation.69 The 1951 Refugee Convention also exempts States from having to provide reciprocity, according to which, if State A grants a particular right to the citizens of State B, then State B should be granting the same right to the citizens of State A. The principle of reciprocity does not apply in relation to refugees because they do not enjoy the protection of their rights in their home country in the first place.

In addition, States must provide information to the UN Secretary-General regarding the domestic laws and regulations they may adopt to implement the Convention. The 1951 Convention does not define how States parties should determine whether an individual meets the requirements to be considered a refugee. Instead, asylum proceedings and refugee status determinations must be established at the domestic level. States are thus able to develop asylum policies in accordance with their own concerns, including economic stability or national security, for example. This has resulted in important disparities with regard to requirements, evaluation processes, as well as deadlines, which render certain jurisdictions more favourable to asylum claimants than others. For example, Syrian refugees have so far been accepted by Lebanon with few limitations while Jordan has confined most of them in camps and prohibited them to work.70

(p. 437) In any case, State parties to the 1951 Convention must grant the refugee status to asylum seekers which fit the refugee definition, which means that they are outside of their country of nationality and have a well-founded fear of being persecuted on one of the grounds mentioned in Article 1 of the Convention. This means that the decision maker must take into account both subjective and objective elements. Objective elements include facts deriving from the legal and policy frameworks of the State from which protection is sought, as well as country reports from NGOs, for example. In a case before the Swedish Migration Court of Appeal, a stateless Palestinian woman from Syria was recognized as a refugee as she was deemed not to have the option to return, following an assessment of the security situation resulting from the internal armed conflict in Syria.71 Subjective elements entail the personal characteristics of the asylum seeker, such as gender, age, or family background. A credibility assessment is often conducted, which leads to major differences in the percentage of status granted, not only from one country to the next, but also, possibly, from one office to the next.72

As already mentioned, number of causes may warrant a refusal to grant asylum seekers the refugee status. These include participation in terrorist activities or commission of crimes against humanity or other particularly serious crimes. War crimes are another possible cause for exclusion. However, in general, asylum procedures are not entirely clear and objective processes.

When there is a mass movement as a result of a war, it is often not feasible to conduct individual asylum assessments in a timely manner and the reasons for fleeing are generally evident. In such circumstances, States may decide to declare groups of individuals ‘prima facie’ refugees. This means that they may lower the standards of proof with regard to the determination of the refugee status.73 While States are still meant to conduct individual assessments, this determination method ensures that the asylum process is time efficient.

Despite some inevitable disparities among asylum procedures, each State should ensure that its procedure abides by the rule of law, a principle which includes equal treatment, a timely and fair process, as well as an effective remedy if their application is rejected.74 Some States detain any individual that has crossed its borders illegally. (p. 438) Immigration detention can be extremely problematic, in particular when there is no time limit associated with the detention, where the possibility of judicial review is missing, and where conditions of detention are inadequate. Several countries have a system of mandatory detention for all individuals arriving without a valid visa, including those seeking asylum from persecution.75 In order to ensure that their asylum processes abide by the rule of law, States should adopt the necessary procedural safeguards. In the case of immigration detention, it means, for example, ensuring that detainees have access to judicial review and that there is a time limit to the period of detention.76

While the EU has tried to harmonize the requirements to benefit from international protection and the rights belonging to those who have applied for international protection,77 it has also attempted to streamline the decision-making process with regard to the asylum procedures in place within its Member States. The Dublin system, which establishes the Member State responsible for examining asylum claims, has been heavily criticized for not being favourable to asylum seekers, such as by causing delays, encouraging the use of detention, and supporting their transfer to States with deficient asylum procedures.78 In accordance with the Asylum Procedures Directive, which establishes minimum standards for granting refugee status within the EU, an application for asylum may be deemed inadmissible if the country of (p. 439) origin is considered safe; such country is not considered safe if it presents threats of indiscriminate violence as a result of an international or non-international armed conflict.79 The Procedures Directive offers other procedural safeguards such as the right to have a lawyer or the right to be informed.

In 2014, the European Court of Human Rights assessed the Dublin system in Tarakhel v Switzerland,80 which concerned a family from Afghanistan that originally sought asylum in Italy. After ten days in an Italian centre for asylum seekers, the family left because of the poor living conditions, and eventually applied for asylum in Switzerland. Their request was denied and they were ordered to return to Italy under the Dublin regulation. The Court ruled that returning the family to Italy constitutes a breach of Article 3 if Switzerland does not first obtain specific guarantees that the Italian authorities would take charge of the applicants in a manner adapted to the age of the children and that the family would not be separated.81

Once an asylum seeker has been granted the refugee status, he or she enjoys the international protection system of the 1951 Refugee Convention. The granting of the refugee status by the UNHCR may be reversed by domestic authorities. In I.A. v The Secretary of State for the Home Department,82 the UK Supreme Court upheld a previous decision to not grant the refugee status to an Iranian national who had been granted that status by the UNHCR in Iraqi Kurdistan on the basis of feared persecution as a member of the Kurdistan Democratic Party of Iran (KDPI). If an individual does not meet the conditions to be granted refugee protection in the State where the asylum claim has been filed, he or she may be returned to his country of origin, unless he or she would face serious threats to his or her life or freedom if returned. In such instance, the principle of non-refoulement applies.

The 1951 Convention also sets out when refugee status terminates, such as in the case of voluntary return, the acquisition of a new nationality or a change of circumstances in the country of origin.83

Footnotes:

23  The 1951 Refugee Convention, which entered into force on 22 April 1954, was adopted by UNGA Resolution 429 (V) of 14 December 1950, while the 1967 Optional Protocol, which entered into force on 4 October 1967, was adopted with UNGA Resolution 2198 (XXI) of 16 December 1967.

24  Art. 1B(1) of the 1951 Refugee Convention.

25  Art. 1(2) and (3) of the 1967 Optional Protocol.

26  The full texts of the treaties and more information regarding their ratification is available on the website of the UNHCR at: <http://www.unhcr.org/pages/49da0e466.html>.

27  A definition of ‘persecute’ given by the Merriam-Webster dictionary is ‘to treat (someone) cruelly or unfairly especially because of race or religious or political beliefs’, see: <http://www.merriam-webster.com/dictionary/persecute>.

28  With regard to human rights treaties, see, for example, Arts 1 and 3 of the 1984 Convention against Torture, Art. 3 of the 1966 International Covenant on Civil and Political Rights, Art. 5 of the 1969 American Convention on Human Rights, or the Preamble, and Arts 2, 3, and 5 of the 1981 African Charter of Human and Peoples’ Rights.

29  Art. 9 of EU Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 (recast).

30  For example, for an analysis of US law, see Alexander Aleinikoff, T., 1991, ‘The Meaning of ‘Persecution in United States Asylum Law’, Int J Refugee Law, vol. 3, no. 1: pp. 5–29.

31  See, for example, Hathaway, J., 1991, The Law of Refugee Status, Butterworth, Toronto.

32  GT [2013] Application No. 95/000186182 (24 October 2013), Attica Regional Asylum Office (Greece), available at: <http://www.asylumlawdatabase.eu/en/case-law/greece-attica-regional-asylum-office-24-october-2013-gt-2013-application-no-95000186182#content>.

33  The prohibition of discrimination was thereafter also enshrined in other human rights treaties such as the 1966 International Covenant on Civil and Political Rights (Art. 2), the 1969 American Convention on Human Rights (Art. 1), and the 1981 African Charter of Human and Peoples’ Rights (Art. 2).

34  The consideration of a ‘well-founded’ fear of persecution with regard to individuals having fled an armed conflict was considered by the Slovakian Migration Office in A. A. S. v Ministry of the Interior of the Slovak Republic, 10Sža/18/2013 (21 August 2013), which deemed that the fear must be real and not fictional. Its decision is available at: <http://www.asylumlawdatabase.eu/en/case-law/slovakia-migration-office-21-august-2013-aas-v-ministry-interior-slovak-republic#content>.

35  See, for example, Art. 2(1) of the Convention Against Torture, which states that ‘Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’.

36  Therefore, stateless persons are not included in the figure of 51.2 million forcibly displaced people. There are an estimated 10.5 million stateless people worldwide but this is difficult to assess with precision, see ‘World Refugee Day: Global forced displacement tops 50 million for first time in post-World War II era’, UNHCR, News Stories, 20 June 2014, available at: <http://www.unhcr.org/53a155bc6.html>.

Note that the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness have been adopted specifically to address the issues associated with statelessness.

37  In addition to the texts mentioned, the Council of Europe adopted in 1976 Recommendation 773 on the situation of de facto refugees, recognizing the inherent limitations of the 1951 Refugee Convention and thus calling its Member States to apply its definition of ‘refugee’ liberally.

38  The Organization of African Unity was replaced by the African Union in 2002.

39  The OAU Refugee Convention (1001 UNTS 45), adopted on 10 September 1969 and entered into force on 20 June 1974, counts forty-five State parties; its ratification table is available at: <http://www.achpr.org/instruments/refugee-convention/ratification/>.

The Cartagena Declaration on Refugees was adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama on 22 November 1984. Although it is not a binding instrument, it has been incorporated in several domestic laws. Furthermore, in December 2014, thirty years after the adoption of the Cartagena Declaration, the Brazil Declaration and Plan of Action was adopted by twenty-eight countries and three territories of Latin America and the Caribbean, to promote the highest standards of protection and implement innovative solutions for refugees in the region.

40  Art. 1(1) of the OAU Refugee Convention.

41  Art. III (3) of the Cartagena Declaration on Refugees.

42  Art. I(2) of the Bangkok Principles states that a refugee is also ‘every person, who owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of 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’.

43  Its Art. I states that a refugee is also ‘ any person who unwillingly takes refuge in a country other than his country of origin or his habitual place of residence because of sustained aggression against, occupation and foreign domination of such country …’.

44  Council Directive 2004/83/EC (Qualification Directive), 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, was adopted on 29 April 2004. On 13 December 2011, the EU adopted the recast Qualification Directive (2011/95/EU), applicable to all EU Member States except Denmark, Ireland, and the United Kingdom, which all remain bound by the 2004 Directive. The recast Qualification Directive was adopted to harmonize the eligibility requirements and the content of the protection among EU Member States.

45  Art. 2(e) of the Qualification Directive and Art. 2(d) of the recast Qualification Directive.

46  Art. 2(c) of the Qualification Directive and Art. 2(f) of the recast Qualification Directive.

47  Art. 2(c) of the Qualification Directive and Art. 2(f) of the recast Qualification Directive. Note that the term ‘humanitarian protection’ has been adopted in the United Kingdom in lieu of ‘subsidiary protection’.

48  Art. 15 of the Qualification Directive and the recast Qualification Directive.

In Case C-285/12 Diakité v Commissaire général aux réfugiés et aux apatrides (30 January 2014), the Belgium Conseil d’État (Council of State) requested a preliminary ruling from the Court of Justice in order to ascertain whether the interpretation to be given to the concept of ‘internal armed conflict’ as referred to in Directive 2004/83 must be independent of the definition used in international humanitarian law and, if so, what are the requirements for a situation to be covered by it. The judgment of the CJEU is available at: <http://curia.europa.eu/juris/document/document.jsf?text=&docid=147061&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=505934>.

49  MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (3 October 2014), available at: <http://www.bailii.org/uk/cases/UKUT/IAC/2014/%5B2014%5D_UKUT_442_iac.html>.

The UKUT was referring to Art. 15c of the Qualification Directive.

50  See also the case of M. A. N. v Ministry of the Interior of the Slovak Republic, 4Saz/2/2013 (29 May 2013), Slovakia—Kosice Regional Court, available at: <http://www.asylumlawdatabase.eu/en/case-law/slovakia-ma-n-v-ministry-interior-slovak-republic-29-may-2013-4saz22013>.

51  S. M. A. v Office of Immigration and Nationality (OIN), 20.K.31072/2013/9 (23 May 2013), Administrative and Labour Court of Budapest (Hungary, available at: <http://www.asylumlawdatabase.eu/en/case-law/hungary-administrative-and-labour-court-budapest-23-may-2013-sma-v-office-immigration-and#content>.

For another case regarding an Afghan applicant, where specific regional situations of conflict are discussed, see 10 C 15.12 (31 January 2013), Federal Administrative Court (Germany), available at: <http://www.asylumlawdatabase.eu/en/case-law/germany-federal-administrative-court-31-january-2013-10-c-1512#content>.

52  There is thus a hierarchy of status as the relevant authority first checks if someone qualifies to be recognized as a refugee and, if not, considers if this person can be granted the subsidiary protection.

53  CCE, arrêt n°103921 (30 May 2013), Belgium—Council for Alien Law Litigation, available at: <http://www.asylumlawdatabase.eu/en/case-law/belgium-council-alien-law-litigation-30-may-2013-no-103921#content>.

54  Article 1 (D) of the 1951 Refugee Convention.

55  See UNHCR, Handbook on Procedures for Determining Refugee Status under the 1951 Convention & the 1967 Protocol relating to the Status of Refugees, first published in 1979 and re-issued in 2011, para 142, available at: <http://www.unhcr.org/3d58e13b4.html>.

According to para. 143, Palestinian refugees living in areas where the UNRWA does not operate are eligible for refugee status under the 1951 Refugee Convention.

56  Art. 1(E) of the 1951 Refugee Convention.

57  Art. 1(F) of the 1951 Refugee Convention.

58  Ilia-Maria Siatitsa, ‘12. National Trials of International Crimes in 2014: Prosecuting ‘Refugees’ suspected of International Crimes’.

59  Art. 1(C)(5) of the 1951 Refugee Convention.

60  Art. 33(1) of the 1951 Refugee Convention.

61  Art. 3 of the Convention Against Torture prohibits the forcible removal of persons to a country where there is a real risk of torture; see also Art. 7 of the International Covenant on Civil and Political Rights (Art. 7), Art. 8 of the Declaration on the Protection of All Persons from Enforced Disappearance, or Principle 5 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

62  Art. 45(4) of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949.

63  Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 22 of the American Convention on Human Rights, Art. II of the OAU Refugee Convention, and Art. 2 of the Cairo Declaration on the Protection of Refugees and Displaced Persons in the Arab World (Art. 2).

64  EM (Eritrea), R (on the app of) v. Secretary of State for the Home Department [2014] UKSC 12 (19 February 2014), available at: <http://www.bailii.org/uk/cases/UKSC/2014/12.html>.

65  Art. 33(2) of the 1951 Refugee Convention.

66  See Art. 3 ECHR and Art. 3 CAT Convention.

67  Note that, as already mentioned, the 1967 Protocol only extended the temporal and geographical scopes of the 1951 Refugee Convention. Thus, it contains the same rights.

68  Note however that Art. 18 of the EU Charter mentions the right to asylum (and not just the right to seek asylum).

69  Art. 35 of the Refugee Convention and Art. II of the 1967 Protocol.

70  For a summary of the treatment of refugees from Syria into neighbouring countries, see ‘The fractured response of humanitarian aid in Syria’, Insight on Conflict, 1 May 2015, available at: <http://www.insightonconflict.org/2015/05/fractured-response-humanitarian-aid-syria/>.

71  UM 1590-13 (26 November 2013), Sweden—Migration Court of Appeal, available at: <http://www.asylumlawdatabase.eu/en/case-law/sweden-migration-court-appeal-26-november-2013-um-1590-13#content>.

72  See, for example, Ramji-Nogales, J., Schoenholtz, A., and Schrag, P. G., 2008, ‘Refugee Roulette: Disparities in Asylum Adjudication’, Stanford Law Review, vol. 60; Temple University Legal Studies Research Paper No. 2007-12, available at: <http://ssrn.com/abstract=983946>.

73  For information on State practice with regard to ‘prima facie’ determination, see, for example, Albert, M., 2010, ‘Prima Facie Determination of Refugee Status’, Working Paper Series No. 55, Refugee Studies Centre Oxford University, January, available at: <http://www.rsc.ox.ac.uk/files/publications/working-paper-series/wp55-prima-facie-determination-refugee-status-2010.pdf>.

74  For example, the EU provides for the right to an effective remedy in Art. 46 of Directive 2013/32/EU, which is available at: <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0032>.

According to its para. 5, this includes the right ‘to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy.’

75  This is, for example, the case in Australia where any non-citizen who has entered the territory without a valid visa must be detained according to the Migration Act 1958 (Cth) (Migration Act), see the website of the Australian Human Rights Commission at: <https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/immigration-detention-and-human-rights>.

76  See Fordham, M., QC, Stefanelli, J. N., and Eser, S., 2013, Immigration Detention and the Rule of Law—Safeguarding Principles, Bingham Centre for the Rule of Law, available at: <http://www.biicl.org/bingham-centre/news/immigrationdetention/safeguardingprinciples>.

See also UNHCR, 2012, Detention Guidelinesguidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, available at: <http://www.unhcr.org/505b10ee9.html>.

As mentioned below, IHRL also protects asylum seekers from arbitrary detention.

77  See the recast Qualification Directive and the EU Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast).

78  The Dublin system includes the Dublin III Regulation (No 604/2013), which replaces the Dublin Convention and Dublin II Regulation, applies to all EU Member States except Denmark, and the EURODAC Regulation, which establishes a Europe-wide fingerprinting database for unauthorized entrants to the EU. In M.S.S. v Belgium and Greece, App. no. 30696/09, ECtHR (21 January 2011), it was decided that Belgium, which had sent asylum seekers back to Greece under the Dublin Regulation, had violated Arts 3 and 13 of the ECHR; see also the joint cases C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, Judgment of the Court of Justice of the EU (Grand Chamber) of 21 December 2011.

79  Annex II of the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member States for granting and withdrawing refugee status.

80  Case of Tarakhel v Switzerland, ECtHR, App. no. 29217/12, Judgment (Merits and Just Satisfaction), Court (Grand Chamber), 4 November 2014, available at: <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-148070>.

The ECtHR referred to M.S.S. v Belgium and Greece (App. no. 30696/09) with regard to the particular situation of asylum seekers coming from an underprivileged and vulnerable section of the population, in need of special protection, and the special status of minors within that group.

81  Ibid., paras 121–122.

83  Art. 1C of the 1951 Refugee Convention.