The Right to Refugee Asylum and Eventual Repatriation

Introduction

Background

In the recent decades the subsistence of refugee crisis has been on the rise. The problem of asylum seekers has become a major global humanitarian issue. This in turn has led to the issue of refugee asylum and repatriation becoming an issue of public interest and also of major political significance. This has led to major criticism made against local laws, international laws and conventions with regards to the upholding of refugee asylum rights and repatriation. This in advent has led to proliferation of various policies and legislations designed to deal with asylum seekers such as article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948. It guarantees the right to seek and enjoy asylum in other countries. Very few countries can efficiently claim to have a substantive governing administration that is flexible and accommodating to uphold asylum rights.

The objectives of this study is to evaluate on the right of asylum in regards to refugees, similarly to evaluate on the legislative provisions dictating on the right. The study also focuses on the determination of the progress of refugee asylum rights with the dynamic and ever advancing field which sets precedents in determining cases. The study also seeks to extensively evaluate on the repatriation process and how it relates to asylum seekers. This is in advent in scenarios whereby the legal question of suitability of repatriation over grant or expiration of asylum arises. The outcome of the research would be based on the assessment and implementation of the right to asylum and repatriation and their effectiveness.

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Statement of the Problem

One major basis posing a tough legal question on both asylum status and repatriation is the principle of non-refoulement. In most cases where host states offer temporary protection it is rather meant to be on a temporary basis. The legal question being posed is when such states and under what circumstances it is acceptable and morally acceptable for host states to return those granted asylum by the state. Another legal question being posed is what circumstances have to exist in the country or origin? Can people be returned to any safe place in their country of origin or must they be able to return to the homes or at least the communities in which they lived prior to flight?

On the matter of handling combatants, what would be the most humanitarian basis of host states when the populations they seek to protect in refugee camps include combatants or war criminals? Is it inhumane not to grant such person’s asylum or would the host country risk the safety of its citizens at the expense of hosting them?

Another tough legal problem is identifying those in need of international protection and those who are not is a problematic issue. For many refugees seeking an asylum status in most cases the line between forced and voluntary international migration is increasingly blurred. In most scenarios their migration is driven by an array of overlapping factors at play relating to looming poverty, inequality, environmental degradation and the effects of climate change, as well as pull factors such as real and perceived economic and educational opportunities in other countries.

The purpose of the study is to gauge the extent of fairness in asylum cases. This is through the dictation of international refugee law statutes similarly to the provisions of humanitarian law and local laws as per given jurisdictions. Another purpose of the study is to showcase precedents set out in cases and also through legal scholars’ determinations on those seeking asylum and repatriation cases eventually. The study is also to showcase the plight of asylum seekers the hardships and hostilities they go through, the loopholes in the laws meant to cater for their quests and the various human rights violations surrounding failure to be granted asylum and also forceful repatriation of refugees. The study also purposely outlines the various laws and guidelines surrounding the field of the right to asylum and repatriation of refugees.

Significance of the Study

The study identifies key areas in the field of asylum and repatriation which contain loopholes preventing the legal enjoyment of the right to asylum and forceful repatriation of refugees from host states without a fair hearing and determination. The study also is meant to give recommendations on the solutions for such loopholes. It also identifies the legal process of acquiring asylum and also dictating the legal process of repatriation and exceptional cases where asylum can be denied and repatriation can be forceful and without the required consent of the victim. The study also showcases the strides made forth in refugee asylum law and repatriation and the precedents set in place for the future determination of such cases.

Literature Review

This book focuses on various factors of asylum seekers such as dimensional protection. Under this it states that the two major justification for more vigilant border controls relates to the financial costa of immigration and the preservation of identity inclusive of the cultural jurisdiction of the state and the security of the national community. In considering the realization of the right to seek and enjoy asylum, advocates of more generous admission policies must seek to overcome these justifications. The book also gives various normative argument towards the enhanced protection of asylum seekers. It gives a view that the universal and individualized approach of the Refugee convention has long been under threat with most states questioning its relevance in the current modern era while others argue on the basis of refugee protection in their regions of origin. In terms of liberalists’ case for permissive entry, they argue that borders are just arbitrary constructs which should be done away with to generally enable entry for all. The book gives a way forward to refugee asylum seekers protection by stating that in order to navigate these contrasting positions we need to distinguish the right to asylum from the broader issues of immigration and migration control. This crucial to fully appreciate humanitarian obligations especially in times of economic restrains when resource arguments are deployed to restrict general immigration.

This book focuses on the African Charter on Hyman and People’s rights based on the protection of the right to seek and obtain asylum. The study builds on the providing of additional dimensions towards the protection of refugees in Africa. The study takes it perspective based on human rights and other applicable laws drawn from the International Covenant on civi and political rights and the Convention Against Torture. The study outlines the background to the evolution of refugee protection. The study also outlines the application of relevant aspects of international law relating to the African charter. The major basis of this aspect as shown in the book is to showcase the basics of the system of law in various states and the obligation of such states to incorporate and implement the charter in their national laws. It also establishes the relationship between human rights and refugees especially asylum seekers in order to establish the basis for the application of human rights in the context of refugee protection. The book also gives a glimpse on the procedures by which refugees may exercise the right of individual protection before the court or the African commission. In addition to this it shows cases procedural and practical difficulties that should be tackled and borne in mind when doing so.

The book poses the question that if not now when are we going to revise the existing laws for the protection of the mounting number of refugees, asylum seekers and displaced persons? The study states that one common and most obvious thread leading to this mass exodus is the fact that there exists total disinterest on the part of both states and international regulatory bodies in producing any efforts to give reason to the causes of such causes or to give the refugees more desirable conditions in their country of origin. The author also states that another common thread is the fact that the only applicable legal regime basically the Convention on the status of refugees and the related 1967 protocol are rather inadequate to deal with both the quantity and quality of asylum seekers. It also gives rise to the basic question of the status of the principle supporting closed borders and relative policies dealing with exclusion and conditional admittance into state territories. It is also for a fact that the result of increasing number of asylum seekers prompts government of the receiving countries to do all in their power legally or not, to repel asylum seekers before they reach their borders.

The book also brings out to light the use of the so-called ‘Safe Third Country’ agreement which permits the use of unprecedented policies and means to return an asylum seeker from one country to the other.

The books form its basis on the fact that permanent resettlement is a rare solution to refugee crises. Repatriation of a refugees back to their country of origin is no longer an option but an imperative. This forms the only alternative to the consequences of protracted displacement. The book raises questions such as: What can refugees ultimately expect after returning to their former states of origin? What are the conditions of a legitimate and just return process? Who is obliged to ensure that such conditions are met? The book also majorly focuses on the responsibility’s states of origin bear towards their repatriating citizens and articulating a minimum account of a just return process. The author in her own opinion claims that the goal of a just return process must be to put returnees back on equal footing with their non- displaced co nationals by renewing a new relationship of rights and duties between the state and its returning citizens. It is argued that remedies such as property restitution, compensation and truth commissions play a critical role in creating the conditions of a just return as it is through such redress that the state of origin may re-establish its legitimacy by acknowledging and trying to make strides to make good on the duties it failed to upholding by forcing its citizens into exile.

The Right to Asylum

The growth of totalitarian states has increased adversely the frequency within which governments are requested to provide refuge. This has led to fresh emerging considerations of whether the right to asylum is an automatic right vested in an individual or faith-based matter vested in the government of the refuge state. The right to asylum is contained in Article 14 of the United Nations Universal declaration of human rights which states that everyone has the right to seek and enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles. Legal practitioners and critics put forth an argument that entry and residence for an asylum seeker cannot be denied however courts and other related tribunals have in the past discredited this belief and cast a doubt on whether there is a true existence of a right.

Hohfield a legal scholar in 1913 laid down a definitive answer towards the right stating that right is to be understood in relation to its mural correlative, a duty. A right exists if a duty is placed on another that can be enforced by the holder of the former. In relation to the traditional scenarios, it was evident that a refugee’s right to asylum was dependent on the existent obligations if any of the state of refuge and its power of enforcement. This consequently meant that an individual trying to enter a sovereign State of which he/she is not a national in practice, can be denied entry because the State would be under no duty to grant admission. In some scenarios whereby the refugee is granted entry it would be a matter of grace and the individual would be the holder of a mere revocable privilege which is nevertheless unenforceable against the refuge State. The stated scenarios were the traditional processes towards the refugee attainment of asylum. With the recent review in policies regarding the right to asylum, a qualified refugee has the right to enter a State in search of asylum and such a State would be under an obligatory duty to grant asylum.

The traditional approach to the right to refugee asylum

In the olden times there was no right to asylum. The state of refugee exercised complete discretion as to whether to grant a refugee ana asylum status or to decline. With regards to the approach used during the olden context a refugee could not file a complaint if he/she was a deserving case. In advent, such a refugee was repatriated back to face persecution. The traditional approach is based on the principle of State sovereignty. It is grounded on the fact that a country can exercise their sovereign right by denying one entry.

According to the author of the book titled ‘Reflections upon the Political Offence in International Practice’ he states that States view the right to asylum as rather permissive. This is with view that the state is the only subject to international law. This in turn meant that f international law. If only a State is subject to international law, then the right to asylum in international law to asylum cannot be claimed by an individual. In the context whereby there are also conventions existent guaranteeing the right to asylum, this does not automatically grant such rights directly to individuals but establishes mutual obligations on States to grant such rights to the individuals. In the event of breach of such obligations no rights is granted to the refugees but the refuge state will be liable to other States partied to the convention.

In the case of Ker vs. Illinois in supporting the above view, it was stated that the right of the Government of Peru to voluntarily give Ker and his conditions an asylum in that country would be quite a different thing from the right to demand and insist upon security in asylum. The view was also restated in the case of Chandler vs. United States in which it was stated that ‘it has long been the practice of States to give asylum but the right belongs to the State to voluntarily offer asylum and not that of the fugitive to insist upon it’.

Interpretation of the right to asylum

The right to seek and to enjoy asylum from persecution in countries of origin can be traced backed to the right of sanctuary during the ancient Greek era, early Christian civilization and imperial Rome. In modern civilization it is recorded and addressed by States in Article 14 of the UDHR. It is based on the principles of State sovereignty whereby the right to grant asylum remains a right of the state. The 1967 convention on the Declaration on Territorial Asylum states that the granting of an asylum is an exercise of the refuge state however reaffirms that the discretion of such States should be interpreted hand in hand with Article 3(1) which states that no person shall be subjected to such measures as rejection at the frontier if he/she has already entered the territory in he/she is in search of asylum. Granting asylum in this sense is a lawful exercise of territorial sovereignty, not to be regarded by any State as an unfriendly act.

Some scholars argue that States do not have a completely free hand in deciding whom to admit with regard to refugees. This was further elaborated the 1951 convention. The 1951 convention reinforced the inclusion of a specific prohibition on refoulement including the state of non- rejection at the frontier. Articles 1 and 33 read together place a duty on States parties to grant, at a minimum, access to asylum procedures for the purpose of refugee status determination. The free access to asylum determination procedures are one of the rights dictated by the 1951 Convention and is an accepted state practice. Without adherence to total asylum procedures, obligations towards non refoulment including the rejection at the frontier the asylum seekers rights could be infringed.