Article 1(A) (2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.
REFUGEE RIGHTS INCLUDE;
NON-REFOULEMENT
The non-refoulement of refugee refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees art. 33 (1).
Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights.
Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a prohibition against refoulement.
The principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. African [Banjul] Charter on Human and Peoples’ Rights, art. 12 (5).
There are two important restrictions to this principle. Persons who otherwise qualify as refugees may not claim protection under this principle where there are “reasonable grounds” for regarding the refugee as a danger to the national security of the host country or where the refugee, having been convicted of a particularly serious crime, constitutes a danger to the host community. 1951 Convention, art. 33(2).
FREEDOM OF MOVEMENT
At the regional level, the rights to seek asylum and freedom of movement can be found within the text of the same article. African [Banjul] Charter on Human and Peoples’ Rights, art. 12(1) and (3);
American Convention on Human Rights, art. 22.
The rights are closely related, since the inability to return to one’s country is the basis of an asylum claim while the ability to leave one’s country is a prerequisite for claiming refugee status under the 1951 Convention.
Freedom of movement, however, is also a key right for refugees within their host country. International Covenant on Civil and Political Rights, art. 12.
Article 26 of the 1951 Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Meanwhile, Article 28 obliges States Parties to issue refugees travel documents permitting them to travel outside the State “unless compelling reasons of national security or public order otherwise require.”
Freedom of movement is an especially important issue with regard to protracted refugee situations in countries with limited national resources and/or limited legal frameworks for protecting refugees who nonetheless host large refugee populations. In such countries, refugee warehousing – in which refugees are confined to refugee camps, thereby restricting their access to employment and education – is commonly practiced.
Countries such as Kenya and Ethiopia specify in their national laws that the movement of refugees throughout the country may be restricted and that refugees may be limited to living in designated areas, namely refugee camps.
RIGHT TO LIBERTY AND SECURITY OF THE PERSON
The right to liberty and security of the person is important in the context of how asylum seekers are treated within the intended country of refuge. The national laws of several countries provide for the detention of asylum seekers at one point or another during the adjudication of their claims. U.K. Border Agency, Screening; The Refugees Act, No. 13, Legislative Supplement No. 7 (2009), Kenya Gazette Supplement No. 11 and 17.
The detention of asylum seekers is a contentious issue because of the conditions found in the detention facilities of several countries. This is particularly an issue in Greece, a country overwhelmed by the number of asylum-seekers it receives, many of whom use Greece as a port of entry as they try to access other European countries.
In order to clarify which State has responsibility for a particular asylum applicant, the Council of Europe issued Council Regulation EC No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national (commonly known as the Dublin Regulation).
Under the Dublin Regulation, the State through which the third country national first entered Europe is generally considered the State responsible for adjudicating that national’s asylum claim.
RIGHT TO FAMILY LIFE
The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the State.”
In respect of this right, a number of countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her.
National Refugee Proclamation, No. 409/2004, art. 12 (Eth.); The Refugees Act, No. 13 (2006), Kenya Gazette Supplement No. 11 and 24.
However, should that individual’s refugee status be terminated, the status of dependent relatives will also be terminated. National Refugee Proclamation, No. 409/2004, art. 12 (Eth.); The Refugees Act, No. 13 (2006), Kenya Gazette Supplement No. 11 and 24. Consequently, these domestic laws do not preclude dependent relatives from making their own asylum claims.
The definition of a dependent relative, however, varies by the cultural notions of family prevalent in the State Party. In the U.K., dependents are defined as the “spouse, civil partner, unmarried or same-sex partner, or minor child accompanying the applicant” while in Kenya, dependent relatives include the brother or sister of an applicant under the age of eighteen, “or any dependent grandparent, parent, grandchild or ward living in the same household as the refugee.”
RIGHTS TO EDUCATION:
Refugees also has the right to seek education in the institutes established at the camps or get a letter of identification allowing him or her to travel within the country or restricted area to access education institutions.
ACCESS TO JUSTICE:
Refugees are entitled to enjoyment of some rights, such as access to the courts; refugees are to be afforded the same treatment as nationals.
EMPLOYMENT:
Other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals. 1951 Convention, art. 16 (refugees are to be granted equal access to the courts), art. 17 (refugees are to be afforded the same access to wage-earning employment as foreign nationals), art. 13 (refugees are to be afforded the same rights to moveable and immoveable property as foreign nation
ASYLUM SEEKERS:
Asylum seeker is a person within a State Party who has applied for recognition as a refugee. If the asylum seeker is determined to meet the definition of a refugee they are granted asylum.
Typically, refugee status determinations or asylum adjudications are conducted by an official from a designated government department or agency. These officials should have a solid knowledge of refugee law. In most cases, the official will interview the asylum seeker to evaluate his or her evidence and credibility. The burden is on the asylum seeker to prove that he or she meets the definition of a refugee and asylum seekers are encouraged to supply as much supporting evidence as possible. Supporting evidence may take the form of country reports, NGO reports, news articles, affidavits or the in-person testimony of witnesses.
In accordance with Article 31 of the 1951 Convention, States Parties provide in their domestic law that an applicant’s irregular entry (i.e., without an entry visa or other documentation) will not have a negative effect on the asylum seeker’s application.
In addition to making a claim at the border, individuals in deportation proceedings may also raise an asylum claim, provided their claim is timely.
If the official finds that the asylum seeker has a well-founded fear of persecution based on one of the five grounds he or she can grant the applicant asylum. Individuals granted asylum receive a residence permit for themselves as well as one for any dependent relatives.
States provide that where the Government denies an asylum application, the asylum seeker is to receive an explanation of the reasons for the denial. Asylum seekers have a right to appeal their negative decision. Generally, an applicant may not be removed unless they have exhausted all of their available remedies.
Individuals who are ineligible for asylum may nonetheless be eligible for more limited forms of protection. These include protection under Article 3 of the Convention against Torture, which forbids States Parties from extraditing or returning an individual to a country where they risk being tortured or subjected to cruel, degrading, treatment or punishment. States also grant complementary forms of protection, such as withholding of removal, subsidiary protection, and Temporary Protected Status to individuals who do not meet the definition of a refugee but whose life or freedom would be in danger if returned to their country of nationality or country of habitual residence.
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