According to the Office of the United Nations High Commissioner for Refugees (UNHCR), in the first six months of 2022, 1.1 million new asylum applications were lodged in 144 different countries. This represents an 89 per cent increase compared to the same period in the previous year. More than two out of five applications (41 per cent) were made by nationals of countries in Latin America and the Caribbean, notably Venezuela, Nicaragua, Cuba, Honduras and Colombia, as conditions in many countries in the region deteriorated during the first six months of 2022. By mid-2022, there were also 5.3 million other people in need of international protection, predominately from Venezuela, an increase of 21 per cent or 935,600 from the end of 2021.
I. The right to seek and enjoy asylum
An asylum is a place where individuals can take refuge to protect themselves from danger emanating from their country of origin. It thus implies the crossing of a State border and must be distinguished from the notion of internal displacement. The right to flee persecution and seek asylum is an international fundamental human right, as set forth in the Universal Declaration of Human Rights (UDHR) at its article 14(1).
However, this individual right is limited by the fact that there is no reciprocal and automatic obligation for States to grant asylum. Criteria of persecution, condition, and procedure for the management of request of asylum as well as the burden sharing of refugees between States are dealt within the framework of international refugee law.
From a legal perspective, a refugee must be distinguished from an asylum seeker: an asylum seeker is an individual attempting to submit a formal request for refugee status in a foreign country or awaiting the result from the examination of his file by the competent national authorities. A refugee is someone who has obtained an official refugee status from competent national authorities and therefore must be granted certain rights alike citizens of that State in conformity according to the 1951 Convention Relating to the Status of Refugees (Refugee Convention) (Arts. 12-34).
☞ The Rights of Asylum and Flight
Article 14 of the 1948 Universal Declaration of Human Rights establishes that “everyone has the right to seek and to enjoy in other countries asylum from persecution”. However, persecution “may not be invoked [by individuals] in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
The Refugee Convention and the UNHCR Statute attempt to guarantee and protect the right to seek asylum for all individuals who fear persecution in their country on the ground of race, religion, nationality, membership of a particular social group or political opinion and are unable to benefit from the protection of their country (Arts. 8(a), 8(d) of UNHCR Statute; arts. 1(A)(2), 31-33 of the Refugee Convention; art. 1(2) of Protocol Relating to the Statute of Refugees).
Other regional or international texts protect the right to seek asylum in another country, for example the Convention Governing the Specific Aspects of Refugee Problems in Africa and the Cartagena Declaration by Latin American States.
The Refugee Convention does not provide a definition for “persecution”. However, according to the UNHCR, it encompasses “serious human rights violations, including a threat to life or freedom, as well as other kinds of serious harm. In addition, lesser forms of harm may cumulatively amount to persecution. Discrimination will also amount to persecution where the effect leads to a situation that is intolerable or substantially prejudicial to the person concerned”.
Over the years, the UNHCR has added gender, sexual orientation and gender identification as well as victims of gender and sexual violence, or human trafficking as constituting a particular social group listed as a basis for granting refugee status. Thereby, the UNHCR recognized that rape and gender-based crime such as female genital mutilation, domestic violence and trafficking can amount to fear of persecution giving thus access to refugee status.
The UNHCR also considers that violence can be perpetrated by State or non-State agents as long as the country is unable or unwilling to protect the population.
The provisions of the Refugee Convention exclude all individuals who committed an international crime (crime against peace, a war crime, or a crime against humanity) (Art. 1(f) of the Refugee Convention).
II. Basic rights granted to individuals fleeing persecution in their country
To ensure that asylum seekers fleeing their country can submit a request for asylum to the authorities of a foreign State, the Refugee Convention and other treaties affirm certain fundamental rights of individuals whose life or freedom is threatened.
- The right to submit an asylum request before the appropriate national authorities
This means that States must not impede access of asylum seekers to the competent national authorities and, in fact, must facilitate this access notably at borders. Furthermore, the UNHCR must be allowed to assist individuals with these formalities. As refugees no longer receive administrative assistance from their State of origin to validate their rights, other States are therefore under the obligation to provide the necessary administrative services, either directly or through an international authority, namely the UNHCR. As a result, the UNHCR or the State in whose territory a refugee is residing commit to delivering or ensuring the delivery of documents or certifications that would normally be delivered to aliens by or through their national authorities (Art. 25 of the Refugee Convention).
- The right not to be expelled or returned to their State of origin as long as there is a threat to their safety ( non-refoulement )
A State may not expel or return an individual seeking asylum or a refugee to a territory where his or her life or freedom would be threatened (the principle of non-refoulement), even in case of irregular entry or presence on the State territory. (Arts. 32-33 of the Refugee Convention). Under the Refugee convention, this principle does not apply to individuals towards whom there is reasonable ground to believe they represent a danger to the security of the country of asylum (Art. 33(2) of the Refugee Convention). However, the principle of non-refoulement is also provided in stronger terms and without exception in a number of other international conventions:
- Convention against Torture (art. 3);
- International Covenant on Civil and Political Rights (art. 7);
- Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (art. 2(3));
- American Convention on Human Rights (art. 22(8));
- European Convention on Human Rights (art. 3).
- The right not to be penalized for seeking asylum
States may not impose penalties on a refugee who entered or is present illegally in its territory if the refugee arrived directly from a territory where his or her life or freedom was threatened. This provision applies as long as the refugee present itself without delay to the authorities and show good cause for their illegal entry or presence (Art. 31 of the Refugee Convention).
- The right to personal liberty and security of asylum seekers
The prohibition of arbitrary detention is absolute and can never be justified even in a situation of emergency or large-scale influx of asylum seekers (Arts. 3 and 9 UDHR; art. 9 ICCPR). Any form of detention of asylum seekers must be applied as an exceptional measure and in last resort, for the shortest period of time and must be approved by a judge. It can only be authorized if it is reasonable, necessary and proportionate considering every aspect of the specific situation. The detention of children is prohibited.
III. The protection of asylum seekers in situations of largescale influx (temporary asylum)
In the case of a large-scale influx of asylum seekers or humanitarian crisis, the State receiving the influx (generally a neighbouring country of the State(s) experiencing an exodus) is under an obligation to provide the incoming population with temporary asylum also known as subsidiary protection. This protection and emergency assistance is to be given with the collaboration of the entire international community, in accordance with the principle of equitable burden-sharing, through the UNHCR, until a durable solution is found or the situation causing the exodus has ended and the return is safe. (Conclusion 22 of 24 April 1981, UNHCR Executive Committee XXXII session).
In its Conclusion 58 (XL session, 1989), the UNHCR Executive Committee recommended that an individual, who do not qualify as a refugee, be sent back to a “safe third country” only if he or she will be treated in accordance with basic humanitarian norms—in other words, with respect for the civil rights set forth by the Refugee Convention and the Universal Declaration on Human Rights.
➔ Refugees </content/article/3/refugees>__
IV. First country of asylum and safe third country
The right to flee one’s country does not mean people have the right to choose their country of asylum. The terms first country of asylum and safe country (a country of transit or of previous stay) illustrate this notion by indicating that, while fleeing his or her own country, an asylum seeker may have crossed another territory, where he or she could have found international protection. This country is referred to as the first country of asylum. Therefore, a State can refuse to examine individuals’ request for refugee status if a country of first asylum exists and the asylum seeker may be return to that country. The condition of that return being that the refugee will be readmitted and treated in accordance with basic humanitarian norms —in other words, with respect for the civil rights set forth by the Refugee Convention and the Universal Declaration on Human Rights. The safe third country concept describes the place where asylum-seekers could request asylum due to the existence of a formal bilateral or multilateral agreement between States relating to the transfer of asylum seekers. In Europe, this prerogative is expressly recognized by:
•The Directive 2013/32/EU of the European Parliament and of the Council (Arts. 33-35 and 38) (harmonizing the criteria used to establish the safety of the third country of asylum);
•The Schengen Convention (regulating the movement of asylum seekers within the States party to the Convention); and
•The Dublin III regulation (a multilateral agreement determining the State responsible for examining asylum applications).
These directives and treaties apportion the responsibilities with regard to asylum seekers among the Member States of the European Union (EU). Other States have domestic laws, acts, and regulations that regulate the procedure for parties granting asylum.
V. Return or expulsion to their State of origin
Many asylum seekers do not meet the requirements to qualify as a refugee under the 1951 Refugee Convention and therefore do not receive the guarantees provided by the refugee status established by this Convention. In its Conclusion 96 (54th session, 2003), the UNHCR Executive Committee reaffirms the obligation of the States of origin to accept back their own nationals and the rights of other States to expel asylum seekers that are found not to be in need of international protection in accordance with humanitarian norms.
However, this right to return or expel foreign individual must still comply with the fundamental and mandatory guarantees of the principle of non-refoulement prohibiting returning people to a place where their life and safety are in danger. Indeed, there are numerous cases where people will not meet the criteria for obtaining the refugee status but will face a danger to their life and safety if sent back to their country of origin. This is why international refugee law is complemented by international human rights law including the Convention on the prevention of torture.
(1) Regional Courts
In the joined cases of C, B and X (C‑704/20 and C‑39/21) of 8 November 2022, the Court of Justice of the EU concluded that in the context of the review of compliance with the conditions for the lawfulness of the detention of a third-country national under EU law, a judicial authority must examine ex officio t he conditions of legality on the basis of the circumstances of the case brought to its attention, even if this information or the condition of legality infringed has not been raised by the individual concerned. The Court held that common procedural rules in EU law were designed to enable the competent judicial authority to release the person concerned, where appropriate after an ex officio examination, as soon as it appears that the detention is not lawful.
In the*Z.A. and Others v. Russia case (Applications nos. 61411/15, 61420/15, 61427/15 and 3028/16) of 21 November 2019, the European Court of Human Rights (ECtHR) established that the detention of asylum seekers at an airport transit zone in Russia for almost two years without access to medical or social assistance and sleeping on the floor is a violation of the European Convention on human rights (ECHR) (Arts. 3 and 5(1) of the ECHR).
In the*Al Husin v. Bosnia and Herzegovina (No. 2), (Application no. 10112/16) of 25 June 2019, the ECtHR ruled that detention in the context of immigration control must be lawful, not arbitrary and carried out in good faith. It can be justified if deportation or extradition proceedings are ongoing but violates the ECHR (Art. 5 (1) of the ECHR) when there is no realistic prospect of removal.
In the*Sh.D. and others v. Greece, Austria, Croatia et al. case (Application no. 141165/16) of 13 June 2019, the ECtHR confirmed that the detention of unaccompanied minors (from 14 to 17 years old) in police stations without psychological and social support and without considering any alternative violates articles 3 and 5(1) of the ECHR. The Court further stressed that the detention of minors should be used only as a last resort.
In the M.A. and Others v. Lithuania case (Application no. 59793/17) of 11 December 2018, the ECtHR found that the refusal of border agents to allow a Russian family to submit their asylum application on three occasions and their return to Belarus in the absence of any examination necessarily violated article 3 of the ECHR constituting a real risk of ill-treatment.
The Court of Justice of the EU in the CJEU interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. In the case - Minister voor Immigratie en Asiel v. X, Y and Z , no. C-199/12, C-200/12 and C-201/12 of 11 November 2013 ruled that homosexuals are members of a particular social group in accordance with the Refugee Convention (Art. 1(A)(2)). Not every criminal law targeting homosexuals amount to persecution. However, if imprisonment can apply it must be considered as such.
Grounds of persecution:
In its 7 June 2022 ruling no. 21042074 , the CNDA, the National Asylum Court of France delimited the elements to grant international protection for conscientious objectors by referring to the guidance of ECtHR, CJEU and the Resolution 1998/77 of the UN commission on Human Rights. Conscientious objection is described as a manifestation of a fundamental right, the freedom of conscience and beliefs. Consequently, the recognition of conscientious objection as grounds for refugee status determination must entail a real personal conviction, the existence of a state military obligation and the absence of a real possibility of alternative service for the conscientious objectors to avoid the military service. This real personal conviction must be proven to be important, cogent and serious for the person concerned to oppose to serve.
In the case CNDA, no. 16029780 of 21 October 2017, the Court granted the refugee status to Miss E. based on the high risk of genital mutilation and absence of protection against this threat in her country.
In accordance with German domestic law, the Administrative Court of Magdeburg in the case*Administrative Court Magdeburg, no 5 A61/17 MD of 26 June 2017 declared that individuals working for international aid organizations such as UNHCR are particularly at risk of persecution by non-State actors if returned to Afghanistan.
The US Court of Appeals for the First Circuit in the*Jaceyls Miguelina de Pena-Paniagua v. William P. Barr case (18-2100P (1st Cir. 2020)) of August 2020 recognized gender as a legal basis for granting asylum, allowing the US to finally become a safe haven for women fleeing domestic violence.
✎ European Court of Human Rights
Council of Europe
67075 Strasbourg cedex, France
Tel.: +33 03 88 41 20 18
Fax: +33 03 88 41 27
30 +33 03 90 21 43 10
Office of the United Nations High Commissioner for Refugees
94 rue de Montbrillant CH-1202 Geneva, Switzerland*
Tel.: +41 22 739 81 11
Fax: +41 22 739 73 77
For Additional Information:
De Bruycker Philippe, and Dias Urbano de Sousa Constança, eds.*The Emergence of a European Asylum Policy . Brussels: Bruylant, 2004.
Giuffré, Mariagiulia.*The readmission of asylum seekers under international law , vol. 73, Oxford: Hart Publishing, 2020.
Juss, Satvinder S.*Research Handbook on International Refugee Law , Cheltenham: Edward Elgar Publishing Limited, 2019.
Sinha, S. Prakash.*Asylum and International Law . The Hague: Martinus Nijhoff, 1971.
UNHCR. “The Asylum Dilemma.” In*The State of the World’s Refugees , 1997–1998: A Humanitarian Agenda , New York: Oxford University Press, 1997: 183-224.
A guide to international refugee protection and building state asylum systems* , 2017, Handbook for Parliamentarians N° 27, available at https://www.refworld.org/docid/5a9d57554.html
Guidelines on International Protection No. 1: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees* , Doc off UNHCR, 2002, Doc NU HCR/GIP/02/01, available at https://www.refworld.org/docid/3d36f1c64.html
Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked* , Doc off Doc NU HCR/GIP/06/07, 2006, available at https://www.refworld.org/docid/443679fa4.html
Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees* , Doc off UNHCR, 2012, Doc UN HCR/GIP/12/01, available at https://www.refworld.org/docid/50348afc2.html
Guidelines on Temporary Protection or Stay Arrangement* s, 2014, available at https://www.refworld.org/docid/52fba2402.html
Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees* , Doc off UNHCR, 2019, Doc NU HCR/1P/4/ENG/REV. 4, available at https://www.refworld.org/docid/5cb474b27.html
Legal considerations regarding access to protection and a connection between the refugee and the third country in the context of return or transfer to safe third countries* , 2018, available at https://www.refworld.org/docid/5acb33ad4.html
Mid-Year Trends* , 2022, available at https://www.unhcr.org/statistics/unhcrstats/635a578f4/mid-year-trends-2022
UN Working Group on Arbitrary Detention.*Revised Deliberation No. 5 on deprivation of liberty of migrants , 2018, available at https://www.refworld.org/docid/5a903b514.html