As noted in the section Who is a refugee?, to be considered a refugee one has to be:
This section addresses some of the challenges of demonstrating that one fits this definition. It reviews three examples of refugee status determination processes from Turkey, Germany, and Sweden, and discusses how one can appeal a wrongful determination.
The 1951 Convention does not directly define “persecution”. There are three dominant approaches to interpreting persecution that countries have adopted when applying the definition:
Example: In the US, persecution can be “the infliction of suffering or harm upon those who differ…in a way regarded as offensive,” “punishment or the infliction of harm…that this country does not recognize as legitimate,” “an extreme concept that does not include every sort of treatment our society regards as offensive,” “not [encompassing] all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional,” and “[rising] above mere harassment.”
In most circumstances, proving one has a well-founded fear of persecution entails demonstrating an individualized fear of persecution. States have generally denied refugee status to applicants whose fear is derived from generalized risk. They ask applicants for refugee status to indicate that their predicament is appreciably different from the dangers faced by fellow citizens.
This makes obtaining refugee status difficult for victims of generalised violence and civil war. According to the UNHCR Handbook: “Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.” The individualized requirement also makes obtaining status after environmental disasters and climate change extremely unlikely:
Environmentally displaced persons have difficulty claiming refugee status due to the generalized nature of the harm they face. Environmentally displaced persons who are displaced as a result of their home being rendered unsustainable due to increasing environmental changes, these include natural disasters or severe deterioration of natural sources as a result of rising sea levels or desertification. A growing number of people have been displaced because of environmental factors, however there is a gap in the international response, resulting in environmentally displaced people often not being considered within their rights to asylum and/or protection.
To obtain refugee status it is not enough to have a well-founded fear of persecution. The persecution an individual fears must be due to his/her race, religion, nationality, member of a particular social group or political opinion. Out of each of these nexus grounds, there is the most controversy surrounding what it means to be a member of a particular social group.
A particular social group is a malleable category. There are in fact three common classifications:
If an asylum seeker needs to demonstrate persecution due to membership of a particular social group, an expert witness is extremely useful. The expert witness will have professional and objective knowledge of the culture in the individual’s country of origin. This provides crucial insight into the current conditions of violence and persecution in that country which supports the credibility of the asylum testimonies.
Example: Islam (A.P.) v. Secretary of State for the Home Department. Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals). Two women suffered domestic violence in Pakistan. The UK courts found that women in Pakistan was a particular social group because of the way they had been treated.
According to the UNHCR 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, a state may not deport an individual who may face fear of torture, persecution or punishment because of their sexual orientation or gender identity. LGBTQI individuals have protected characteristics which are fundamental to their human dignity.
Example: HJ (Iran) and HT (Cameroon) in the UK Supreme Court; Forcing a homosexual individual to hide their sexuality to avoid persecution is a violation of their human rights. LGBTQI individuals are protected by the UN Refugee Convention because they cannot be forced to hide their sexuality or gender identity. HJ (Iran) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action and HT (Cameroon) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action [2010] UKSC 31.
Persons with mental health issues may also constitute members of a particular social group. Courts will only find that mental health constitutes a particular social group in certain cases.
Example: Temu v Holder; A Tanzanian national who suffered from severe bipolar disorder was tortured by nurses and prison guards because of his illness. The court found that bipolar disorder could be treated but not cured and therefore it was an immutable characteristic of a particular social group. Temu v. Holder, No. 13-1192, at 10 (4th Cir. Jan. 16, 2014).
It may also difficult for persons with mental health issues to prove that they have a well founded fear of persecution under Article 1(A)(2) of the Refugee Convention. Mental illness may stop the individual from experiencing fear or may make them experience a sense of fear which is not rational.
Within the European Union, medico-legal reports (MLR) are given to asylum adjudicators to assess the client’s mental health status. An MLR is also useful to show the credibility of the persecution suffered and the future persecution that the individual could be exposed to.
In Germany, giving protection to victims of political persecution is considered a humanitarian and historical obligation. As such, the fundamental right of asylum for refugees is stated in Article 16a of the German Basic Law.
The procedure for granting asylum is governed by the Asylum Procedure Act (AsylVfG). All those admitted to the country or found within its borders without appropriate immigration documents are then subjected to the nation-wide distribution procedure. This means that the refugees are assigned to reception centres in individual German states.
Federal Office for Migration and Refugees (BAMF) receives application from the asylum seekers. It then grants asylum seekers preliminary certificates of permission which allows the applicants to remain in the country for the duration of the procedure. Case workers of BAMF personally enquire about the route applicants took to arrive in Germany and the details of the persecution they were subjected to in the country they are fleeing from.
The application process is provided with full translation services if needed. The decision is made based on the interview and relevant investigations and is given in writing to the applicant.
If the application has been successful, the person is granted refugee status and receives a temporary residence permit. He/she also gains access to the welfare system on the same level as German citizens. This includes, amongst others benefits, child benefit, an integration allowance and language courses as well as other forms of personalized assistance.
If the application has been unsuccessful, BAMF considers whether there any grounds to issue a deportation ban. However, as a general rule, those who have been refused refugee status, or some form of humanitarian protection, are required to leave the country.
Overall in 2016, there were 745,545 people who applied for a refugee status in Germany. Out of these, the authorities granted the right to remain to 256,136 applicants, with further 153,700 people receiving subsidiary protection and 24,084 being granted humanitarian protection assistance. 173,846 applications were rejected, and applicants were ordered to leave the country. The biggest number of applications came from Syria, Afghanistan and Iraq. 65.4% of asylum seekers were male and the other 34.3% female. Child applicants accounted for 36% of all applications and 5% of the total number were unaccompanied. This left 433,719 applicants awaiting decisions by the end of 2016.
To apply for an asylum in Sweden, an asylum seeker needs to apply at the Migration Agency. This requirement means that it is not possible to apply before arriving in Sweden. When entering the country, you will need to make known to the Border Police your intention of applying for the refugee status and after answering a set of basic questions, you will be taken to the Migration Agency where you will have a chance to submit your application.
The application will be formed of a set of questions asking who you are, why you wish to apply for an asylum in Sweden and how you travelled to the country. Your identity will have to be verified, ideally by a passport or national identity card. If, for some reason, you are unable to submit these documents, the authorities may be able to verify who you are using a combination of other documentation, such as a birth certificate, marriage certificate as well as family or military registration documents.
The next stage is having your fingerprints taken and being photographed. These will be added to the online register held by the Agency as well as on the ‘LMA card’ which you will be issued with as a confirmation of your asylum seeker status.
Afterwards, you will be interviewed by an Investigator who will ask you about the matters discussed in your application form plus your family and health history. You will be provided with a help of an interpreter, should you require language assistance. The Investigator will also explain to you further process and address practical questions you may have, such as accommodation or health care provisions. You should try to remain financially independent during the application process, however, there is financial help available should you need it.
Waiting for the outcome of the application varies from person to person and is usually based on the amount of investigation that the Investigator sees as necessary in the specific case. During that time, you are entitled to remain in the country. You may also be required to attend additional interviews if the Migration Agency deems it necessary to progress your case further.
In 2016, Swedish authorities received 28,939 asylum applications. The countries with biggest number of applicants, similarly to those observed in Germany, are Syria, Afghanistan and Iraq. Men accounted for 60% of refugee status applicants, with children’s applications at 37.7%. Unaccompanied minors were 7.6% of the total number of asylum seekers in Sweden.
Somewhat surprisingly, regardless of a relatively small number of applications received by Swedish authorities in 2016, the number of pending cases by the end of last year was estimated at 71,576. The situation in the country is frequently described as a crisis, with the number of lawless areas in Sweden only growing from 55 to 61, according to a leaked Swedish report commented on by Armstrong Economics.
The article entitled “Sweden on the brink of legal crisis” says
“Sweden’s National Police Commissioner, Dan Eliasson, came out and pleaded on national television for assistance: “He warned that Swedish police forces can no longer uphold the law. The refugees are so disrespectful that if the free money is cut off, Sweden can quickly find itself in the midst of total chaos. The refugees will turn violent and seek whatever they can from the other regions. When the police come out and ask for help, you know something is seriously “wrong.”
Some further estimations talk about more than 12,000 of rejected asylum applicants who have gone underground. In light of the April 2017 terrorist attack on the streets of Stockholm which was pursued by an Uzbek whose refugee application has been rejected, we can only predict that the general mood about asylum seekers in Sweden will be decreasing in positivity.
Turkey currently holds a dual structure asylum system, as the sets of rules and procedures differs for asylum seekers from Syria, to asylum seekers from other nationalities. This is due to the great influx of persons from neighbouring Syria and a surging number from other countries such as Iraq, Afghanistan, Somalia, among other countries.
Despite having ratified the 1967 New York Protocol, Turkey maintains a ‘geographical limitation’ of the 1951 Refugee Convention; it does not apply the 1951 Convention definition to persons coming from outside Europe
The current reality of situation faced by asylum applicants is not yet represented by the new asylum procedure provided by Law on Foreigners and International Protection (LFIP), as the transition process to the new Law is currently ongoing.
Turkey holds three types of ‘individual international protection’ status in accordance with ‘geographical limitation’ policy on the 1951 Convention:
1-Persons who fall under the definition for ‘refugee’ under 1951 Convention and come from a European country of origin, qualify for ‘refugee status’ under LFIP. The legal status of a refugee under LFIP enables refugees to rights and entitlements in accordance with requirements under 1951 Convention, including the prospect of long term integration in Turkey.
3-Persons who do not meet the eligibility criteria for either ‘refugee’ status or ‘conditional’ refugee status under LFIP, who would be subjected to death penalty or torture in country of origin or would be at personalized risk of indiscriminate violence due to situations of war or internal armed conflict if returned, qualify for ‘subsidiary protection’ status under LFIP. Similar to those under ‘conditional’ refugee status, subsidiary protection status holders do not receive equal set of rights and entitlements as ‘refugee’ status holders, and do not enjoy long term legal integration in Turkey. However, subsidiary protection beneficiaries are granted family reunification rights in turkey.
The LFIP has introduced the application and determination procedure for asylum seekers looking to qualify under ‘international protection’. This includes guarantees for legal advice for applications.
According to the LFIP the ‘international protection procedure’ aims to issue application decisions within six months, however this time estimate is not binding and may be extended by Directorate General of Migration Management (DGMM) if necessary. Under ‘accelerated procedure’ the status determination interview must be conducted within 3 days of the date of application and a decision must be issued within 5 days of the interview. Judicial appeals against negative status decisions under ‘accelerated procedure’ and inadmissibility decisions must be filed within 15 days. Negative decisions under the regular procedure can be challenged at the newly established International Protection Evaluation Commission within 10 days or directly at the competent administrative court within 30 days. All appeals under ‘international protection’ guarantee applicants right to stay in Turkey until their appeal process has been concluded.
LFIP does not guarantee the provision of shelter to ‘international protection applicants’ as a right, but plans to launch a small number of Reception and Accommodation Centres to accommodate particularly vulnerable applicants. DGMM currently hold a very limited capacity to shelter applicants and it is unclear when the new centres will become operational. The DGMM assigns a designated province to applicants, under the ‘satellite cities policy’, where applicants are expected to secure private accommodation on their own means and remain there until the end of their application process.
First it is important to note, that the definition of the refugee in the 1951 Convention has been expanded in some regions, notably in Africa and Latin America.
If you are seeking to obtain refugee status in one of the 45 African countries that have ratified the Organisation of African Union (OAU) Refugee Convention (1969), you will benefit from the Convention’s expanded definition:
According to Article 1(2) of the OAU Convention: “The term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”
If you a refugee seeking status under this Convention, you will be able to make a case for obtaining refugee status on the basis of external aggression, occupation, foreign domination or events seriously disturbing public order. You will also be able to make this case, regardless of whether or not there are internal flight alternatives, commonly defined as safe zones within your own country where you would be free from persecution.
If you are seeking to obtain refugee status in Latin America, you may benefit from the Cartagena Declaration (1984). While the Declaration is a non-binding legal instrument, it has been incorporated into national laws and state practices of 14 Latin American countries.
According to the Cartagena Declaration (1984), Part III (on Conclusions), No. 3: the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order
Even if you do not obtain refugee status, there are protection obligations arising from international legal instruments and custom that complement–or supplement–the 1951 Refugee Convention.
In essence, complementary protection is the obligation not to return an individual to serious harm. The three most important treaty-based sources of complementary protection are the following:
Example: Subsidiary protection under the EU Qualification Directive, which applies to countries in the European Union is one example of complementary protection. Subsidiary protection is granted only when an individual presents a well-founded fear of “serious harm,” which amounts to the death penalty or execution; or torture or inhuman, degrading treatment.
It is important to note that individuals who obtain complementary protection are often treated differently by their host countries. They are afforded less rights than refugees who obtain status according to the 1951 Convention definition. For example, beneficiaries of subsidiary protection in the EU receive less extensive entitlements with respect to family unity; access to and length of residence permits; eligibility for travel documents; access to employment; social welfare entitlements; health care entitlements; access to integration facilities; and rights of accompanying family members. Only Canada and the Netherlands provide beneficiaries of complementary protection the same status as that of Convention refugees.
If you are denied refugee status, you may be able to appeal your status denial. Each country has an individualized administrative procedure for appealing wrongful refugee status determinations. Some procedures are adversarial in nature and require that you present your case in a national court or before a formal State appeals board. Most states will have procedural obstacles that you should be aware of when seeking an appeal. States often impose time limits on the asylum appeal process. In the UK for example, the appeals process must take between 25-28 days. This is normally intended to speed up the process of deportation. Time limits impose added pressures for those seeking refugee status, as they must gather evidence and legal advice in a shorter time span.
In certain countries, you may face deportation after you have been denied refugee status or other forms of complementary protection. It is essential that you initiate an appeal prior to being deported, if you feel you have been wrongfully denied refugee status. If an appellant is deported before his/her appeal hearing takes place, the appeal is unlikely to be successful. He or she is often unable to give live evidence to the court due to a lack of IT equipment in both the host country and the country of origin. It would be both expensive and difficult for the appellant to successfully appeal his/her deportation from outside the country. In R (Kiarie and Byndloss) v Sec of State for Home Dept [2017] UKSC 42, lawyers for the appellant estimated that providing video links to the court from Nairobi would cost 1680 pounds.
Once you have exhausted national remedies, you may be able to take your case to international and regional courts.
The African Court on Human and Peoples Rights has jurisdiction over the African Charter on Human and Peoples’ Rights. This piece of legislation is also known as the Banjul Charter. Since its conception, the Charter has been ratified by 54 states. The court has the power to make binding decisions against States which violate the Charter.
For the purposes of appealing a wrongful refugee status determination or a deportation order, Article 5 and Article 12 are particularly relevant. Article 5 concerns the Prohibition of Torture and Cruel, Inhuman and Degrading Treatment. Public authorities are prevented from deporting individuals to their original countries if they may be subject to inhumane treatment. This prohibition was reaffirmed by the African Commission for Human and Peoples’ Rights in the Robben Island Guidelines: “States should ensure no one is expelled or extradited to a country where he or she is at risk of being subjected to torture. ” If you are seeking asylum in an African country due to fears of inhumane treatment in your home country, Article 5 may be a point you will wish to bring up in your favour.
Article 12 concerns freedom of movement within the countries ratifying the Banjul Charter. It specifically provides in subsection 5 that mass expulsion of non-nationals is prohibited.
If you believe that you have been targeted for expulsion due to your nationality, race, ethnic, or religious group, it is likely that others of your demographic are being similarly targeted. In this case, Article 12 will provide protection against such an action.
The European Court of Human Rights, which oversees the implementation and compliance of Member States with the European Convention on Human Rights (ECHR). Member States and individual victims can bring cases directly for the consideration of the ECHR. While the Court’s power is limited to ordering States to pay compensation and cannot directly overrule national decisions and laws, its decisions have symbolic power, and its requests for policy changes are often followed. The ECHR covers a wide range of human rights which States must respect. It may be effective in providing remedies in certain deportation situations. Article 3 in particular covers prohibition of “inhuman or degrading treatment or punishment.”
The Inter-American Court of Human Rights oversees the implementation of American Convention on Human Rights. This Convention is a treaty between countries in both North and South America to uphold and protect human rights. It consolidates an agreed upon list of rights deemed to be essential. It has been ratified by 25 out of 35 countries in the Organization of American States. However, bear in mind that Trinidad and Tobago and Venezuela have subsequently denounced the Convention. As such, it will not be applicable there. Other notable exceptions to the treaty are the United States and Canada.
Article 22 is especially relevant for the purposes of appealing deportation. It concerns the freedom of movement and residence within the States which have ratified the Convention. It prohibits deportation or return to a country if his right to life or liberty may be threatened as a result. It also prohibits collective expulsion of non-nationals.
Over the years, the UN has developed a range of human rights instruments to combat human rights violations. Although the UN itself does not have a true judicial system within which international human rights law can be enforced, some UN treaties have created committees which give authoritative guidance on how States should recognize human rights in accordance with those treaties.
If you have exhausted all domestic remedies, your claim for refugee status or complementary protection may be rendered admissible. Upon having their claim for refugee status declared admissible, an individual can take their complaint to an international treaty monitoring body. In contrast to international courts, international bodies are newer and have a less-developed jurisprudence and fewer resources; they meet only twice a year and are considerably overburdened. Most significantly, international bodies only have the authority to deliver non-binding decisions, which require voluntary State compliance to be effective.
It is important to note, that an individual can only lodge a complaint with the committees enforcing The Convention against Torture (CAT)–the Committee against Torture–and The International Covenant on Civil and Political Rights (ICCPR)– the Human Rights Committee—if the State has signed optional protocols allowing individuals to bring cases directly to these bodies.