Asylum - A Right Denied

A Critical Analysis of European Asylum Policy

Helen O'Nions

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317177753
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Menschenrechte

In recent decades, asylum has emerged as a highly politicized European issue. The term 'asylum seeker' has suffered a negative perception and has been associated with notions of illegality and criminality in mainstream media. These misconceptions have been supported by politicians as a distraction from economic and political uncertainties with the result that asylum seekers have been deprived of significant rights. This book examines the effect of recent attempts of harmonization on the identification and protection of refugees. It considers the extent of obligations on the state to admit and protect refugees and examines the 1951 Refugee Convention. The motivations of European legislators and legislation concerning asylum procedures and reception conditions are also analysed. Proposals and initiatives for refugee movements and determinations are examined and assessed. The author makes suggestions for better protection of refugees while responding to the security concerns of States, and questions whether European law and policy is doing enough to uphold the fundamental right to seek and enjoy asylum as set out in the Universal Declaration of Human Rights. This book takes a bold look at a controversial issue and generates discussion for those involved in the fields of human rights, migrational and transnational studies, law and society and international law.

Chapter 1
Dimensions of Protection

Introduction

International law protects the dignity of all persons regardless of nationality, positing the human rather than the citizen at the centre of rights protection.¹ Yet human rights are not hermetically sealed from the politics of border control which seeks to define and exclude those who have no clear right of entry.² Border management itself results from a complex negotiation between different state actors and interests. The two most common justifications for tighter border controls relate to the financial costs of immigration and the preservation of national identity (including the culture and security of the national community). When considering the realisation of a right to seek and enjoy asylum, advocates of more generous admission policies must seek to overcome these justifications.

The Positivist Position of International Law

The right to seek and enjoy asylum was first accorded universal recognition in the Universal Declaration on Human Rights in 1948.³ The initial proposal had placed the asylum seeker in a strong position by preferring a right to ‘be granted’ over a right to ‘enjoy’ asylum, but states were keen to prioritise their territorial sovereignty over any legal obligation to offer protection.⁴

Whilst the right to seek and enjoy asylum did not find expression in the subsequent human rights covenants, it had by then received lex specialis recognition in the 1951 Refugee Convention and subsequent New York protocol.⁵ The Convention emerged from a cautious climate in the early days of universal obligations where state sovereignty prevailed and this resulted, according to Goodwin-Gill, in an essentially reactive legal instrument.⁶

Whilst the Convention defines a refugee in international law, it does not place a legal obligation on any state to admit an asylum seeker to their territory for the purpose of seeking refugee status. However, once an asylum seeker arrives at the frontiers of the state, s/he is protected from return or ‘refoulement’, as discussed in Chapter 2. This guarantee derives from the 1933 Convention Relating to the International Status of Refugees.⁷ It has special status in international law as an obligation erga omnes, and is regarded by many commentators as having the status of jus cogens and customary international law.⁸ The UNHCR have confirmed that this obligation should apply to those seeking asylum and should not be limited to those formally recognised as refugees.⁹

The Ad Hoc Committee on Statelessness and Related Problems had initially proposed an absolute prohibition on refoulement, with no exceptions,¹⁰ but the 1951 Conference of Plenipotentiaries qualified the principle by adding a paragraph denying its benefit to the refugee with regard to whom there are ‘reasonable grounds for regarding as a danger to the security of the country … or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country’.¹¹ Thus international refugee law legitimises a public order argument for limiting state obligations to refugees who may pose a threat to state security.

The obligation of non-refoulement clearly encroaches on traditional notions of territorial sovereignty and some states have attempted to evade their legal responsibility through resort to interception strategies which prevent access to their territory.¹² This practice has confronted the European Court of Human Rights (hereafter ‘ECtHR’) with the need to determine that a state’s obligations under Article 3 of the European Convention on Human Rights (hereafter ‘ECHR’) may be applied to actions taken outside of that state’s territory.¹³ Article 3 contains an absolute prohibition of, inter alia, inhuman or degrading treatment or torture. As such it overlaps and expands the non-refoulement obligation by admitting no exceptions. As well as finding implied recognition in Article 3 of the ECHR, non-refoulement finds specific recognition in European Union law by virtue of Article 19 of the EU Charter of Fundamental Rights.¹⁴

Although the Refugee Convention lacks an enforcement mechanism, the UNHCR acts as its guardian, having been established to provide ‘international protection to refugees and to assist governments in seeing ‘permanent solutions for the problem of refugees’.¹⁵ The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, published in 1979 provides authoritative guidance on the correct interpretation of the Convention. Whilst its Executive Committee Conclusions give further guidance which is increasingly cited as soft law in national refugee determinations.¹⁶

The Refugee Convention is merely a starting point in understanding international obligations to refugees. Due to its reactive nature, it does not oblige a state to provide asylum or deal with conditions of admission. It also neglects to address the causes of irregular migration, whilst its definition of the refugee as a person ‘outside their country of origin’ is inevitably construed as excluding internally displaced persons.¹⁷ Notwithstanding these limitations, it remains the bedrock of international refugee protection and, along with lex generalis human rights principles, it is the legal standard against which European harmonisation and burden-sharing initiatives must be assessed.

Normative Arguments for Enhanced Protection

The universal and individualised approach of the Refugee Convention has long been under assault with some states questioning its relevance in the modern era and others arguing for protection in regions of origin.¹⁸ For the purpose of expedited refugee determination, most European states have adopted lists of ‘safe’ countries from which there are presumed to be no genuine refugees.

On the other hand, there is an argument that European states should do much more to identify and protect refugees. Many in genuine need of protection are left with little option but to remain in the region or country of origin due to family responsibilities and resource constraints As a result, the European picture of the typical refugee as a young, single, male is distorted.¹⁹ Any system of enhanced protection must extend to all those in fear of persecution or serious harm, not just those who can afford to make the journey.

Yet the prevalence of the statist paradigm where the sovereign power to protect borders from intrusion is universally supported by state practice²⁰ poses a significant obstacle when advancing refugee rights which directly challenge that paradigm. It is commonly asserted that the stability of the nation state and the tolerance of its citizens demands restrictive immigration policies.²¹ Whilst it is evident that an emphasis on universal and transnational human rights calls into question the distinction between aliens and nationals which has characterised traditional statism,²² international human rights norms ‘cannot erase the spectre of the territorial border’.²³ This leaves non-citizens with a precarious, hybrid legal status, balanced between international, universal principles and territorially defined recognition.²⁴ For Benhabib, a person’s right to exit a state would be anomalous without a corollary right to enter in a world that is dominated by nation states.²⁵ Yet this is the anomaly presented by the legal position.

European states have been prepared to accept limitations to this sovereign right under European Union free movement laws which extend European movement and residence rights to all EU citizens and their family members.²⁶ Further, once an asylum seeker arrives at the state border, their legal status under international human rights law shifts to accommodate the non-refoulement obligation, even in cases where they have yet to be formally admitted. For Benhabib, ‘The prerogative of democratic sovereigns to define criteria of political inclusion is not an unconditional right. Democratic sovereignty and human rights considerations must mutually limit and control each other’.²⁷ Whilst the state’s executive agencies may attempt to limit their obligations by denying formal entry, national and regional judicial bodies are frequently called to plug this protection gap.²⁸ Asylum policy can be characterised as a ‘tug of war’ between international, universal norms and morals on the one hand and national, particularist interests on the other; effectively leaving lawyers with a choice between two ‘foundational paradigms’.²⁹ The state’s right to control its borders is clearly extensive but is certainly not unfettered.

The Liberal Case for Permissive Entry

For some scholars, state borders are arbitrary constructs which should be dismantled to generally enable entry for all.³⁰ According to John Rawls the original position of liberal democracy requires us to consider organisational principles of justice behind a veil of ignorance.³¹ For Carens this would extend to ignorance of our national origins, thus the right to migrate would necessarily be included as a fundamental human rights principle.³² This right would impose corresponding obligations on the nation state to facilitate entry and any limitations on entry would be narrowly construed. Expulsion should never be predicated on the negative reaction of existing citizens as all human beings have equal moral worth as part of a global community.³³ Thus, Carens argues that as liberalism expresses general moral views in terms of universal principles, these principles cannot be legitimately restricted by national origins.³⁴ Consequently, he views border controls as illiberal, feudal barriers to mobility which protect unjust and arbitrary privileges.³⁵ On this reasoning, any moral argument to restrict entry would directly challenge the assumption that all individua...