What is the right of asylum? Who is a refugee?

The right of asylum has roots stretching far back in human history: the term asylum was used to denote certain places which were thought to possess the privilege of protection from persecution and the right of asylum was the term given to the immunity enjoyed by anyone who took refuge in those specific places.[1] The right of asylum was subsequently developed as a concept of international law in virtue of the principles that governed its exercise and it took a new direction when human rights were codified in international law. The two main instruments that shaped the development of an individual right of asylum are the 1951 Geneva Convention Relating to the Statute of Refugees (together with its Protocol of 1967) and the European Convention of Human Rights.[2] In addition, at the European level, the European Union as part of its competence in the field of asylum established a common asylum system which concluded in the adoption of important Council Directives and Council Regulations.

Definition of refugee

A person becomes a refugee as soon as he/she meets the requirements set out in Article 1A of the 1951 Refugee Convention. The Refugee Convention defines a refugee as:

someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

In simpler words, a refugee is someone who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are leading causes of refugees fleeing their countries.

According to the 1951 Refugee Convention, five criteria must be met for a person to qualify as a refugee:

  1. outside country of nationality/former habitual residence
  2. Well-founded fear
  3. Persecution
  4. Reasons (race, religion, nationality, membership of a particular social group, or political opinion)
  5. Unable or unwilling, for fear of persecution, to seek that country’s protection or to return there

The phrase ‘well-founded fear’ contains both a subjective and an objective element, and in determining refugee status, both must be considered. Fear is, by definition, a state of mind and hence a subjective condition. In some cases, the facts on record will be sufficient to attest to its authenticity. In many others, however, the personality and credibility of the applicant- i.e. personal and family background, membership in a racial, religious, national, social or political group, interpretation of his or her situation and personal experiences must be assessed.[3] As for the objective element, the applicant’s statements must be assessed in the context of the background situation. In general, the applicant’s fear well-founded must be considered if there is a reason to believe that his or her continued stay in the country of origin has become intolerable for the reasons stated in the definition, or would be intolerable if the applicant returned. The adjudicator must look at factors that would affect the likelihood of the asylum seeker facing persecution in his or her country of origin upon return.

The Refugee Convention also makes provisions for situations in which the status of refugee no longer exists or where it cannot be granted.[4] The exclusion must be assessed according to the same standards as applied in the ‘inclusion’ procedure.

One of the critical rules of international human rights law is that of non-refoulement. This provision is designed to prevent a state from returning a refugee to the country where his or her life or freedom would be in danger. This means that no person should be forced to return to a place where he/she is at risk of persecution. Such a return constitutes a violation of their basic human rights. This is a rule of customary international law and cannot be breached under any circumstances.[5] The non-refoulement principle as enshrined in Article 33 (1) of the 1951 Refugee Convention reads as follows:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Who determines whether a person is a refugee?

To this day, granting or rejecting asylum in the EU remains the responsibility of the member states’ authorities. States have the primary responsibility to conduct Refugee Status Determination. In cases where the host country is unwilling or unable to conduct status determination, the UNCHR will decide the status of the applicant. The Refugee Status Determination has two components: an interview with the asylum seeker and research into the situation in the person’s country of origin to assess whether his or her circumstances fit the requirements of any applicable refugee convention. The result is a positive or negative determination of the person’s eligibility to be a refugee.

            In addition, as established in the Common European Asylum System and stated in the directive, asylum seekers are entitled to a personal interview in which they can present the circumstances under which they left their country (Directive 2013/32/EU, Article 25).[6] The Asylum Procedures Directive is expected both to harmonise procedural guarantees given during asylum procedures and to safeguard the applicant’s rights. Therefore, this involves an interview to determine the reasons why a person has fled and is seeking international protection. In the case of a positive decision by a host country government, the individual who has been granted asylum may be placed on a track toward permanent residency or full citizenship in the country of asylum and the rights that come along with that status.

When a government rejects an asylum seeker, it may decide that the individual should be returned to the country of origin because there is no personal risk to the individual and general conditions in the country of origin pose no danger. The government or UNHCR is in effect saying that this person does not meet the criteria to be considered a refugee and does not deserve the protection of the international community.

Even if an asylum seeker’s initial application for asylum is rejected, all applicants are allowed to lodge appeals against negative decisions. In addition, if a person does not win refugee status, there are human rights guarantees in place to prevent that person from being forcefully returned to a country where their safety cannot be guaranteed, especially if the country of origin is experiencing severe conflict. The 1966 International Covenant on Civil and Political Rights (ICCPR), for example, prohibits people from being returned to countries where they might face torture.

Author: Shabnam Tautan

[1] Francesco Cherubini, Asylum Law in the European Union (Routledge 2015) 1.

[2] Article 3 of the Convention stipulates that ‘No one shall be subjected to torture or inhuman or degrading treatment of punishment’.

[3] For Determination of Refugee Status see: handbook and guidelines on procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, Reissued Geneva, December 2011 https://www.unhcr.org/publications/legal/3d58e13b4/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html, Also see: UN High Commissioner for Refugees (UNHCR), Aide-Memoire & Glossary of case processing modalities, terms and concepts applicable to RSD under UNHCR’s Mandate (The Glossary), 2017, available at: https://www.refworld.org/docid/5a2657e44.html  

[4] The grounds for excluding persons from refugee status are mainly set out in Article 1C and 1F.  

[5] The International Court of Justice defines customary international law as evidence of a general practice accepted as law. Custom is considered by the Court, jurists, the United Nations and its member states to be among the primary sources of international law.

[6] Karin Schittenhelm, ‘Implementing and Rethinking the European Union’s Asylum Legislation: The Asylum Procedures Directive’ (2019) 57 International Migration.

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