Governments and UNHCR are currently striving to formulate appropriate and effective responses to the challenge of asylum in a rapidly changing international environment. While there is a broad consensus within the international community concerning the continued relevance of the 1951 UN Refugee Convention, demonstrated by the positive outcome of the Global Consultations, there is also a recognition that the world has changed significantly in the past five decades. The number of states has proliferated as a result of decolonization and the demise of the communist bloc. The process of globalization has created an enormous amount of new wealth, but has distributed that wealth in a highly uneven manner. Developments in communications and transportation have led to unprecedented levels of human mobility and facilitated the instantaneous transfer of information and money from one part of the world to another. And serious new threats have arisen in the form of transnational terrorist and criminal networks.

Such developments have had major effects on the dynamics of human displacement and have generated an intense and sometimes polarized debate with regard to the way that refugees, asylum seekers and other uprooted people can be most effectively protected, while at the same time safeguarding the legitimate interests of states. The following sections examine three of the issues that have been most prominent in that debate: the relationship between national security, asylum and refugee protection; the asylum-migration nexus; and the challenge of building protection capacities in countries of asylum.

National security and asylum

While the trend of implementing ever more restrictive policies towards asylum seekers and refugees had started well before the events of 11 September 2001,[32] the new climate of heightened security concerns served to legitimise these practices. It also allowed for closer cooperation among states in criminal matters at the risk of the protection needs of refugees being overlooked.

Indeed, just a few days after 11 September, the UN Security Council adopted a resolution calling upon states to take appropriate measures under the relevant provisions of national and international law before granting refugee status to ensure that the asylum seeker has not been involved in terrorist acts.[33] It further called on states to ensure that refugee status is not abused by those involved in terrorist acts, and that asylum claims should not be grounds for refusing requests for the extradition of alleged terrorists.[34]

Since that time, the security concerns of states have increasingly been invoked as a justification for the introduction of laws and policies which impinge upon the principle of asylum and the protection of refugees. Border controls have been tightened in many parts of the world, while the grounds for the detention, exclusion, expulsion and extradition of foreign nationals have been broadened. Security considerations have also prompted some states to restrict access to asylum procedures and resettlement opportunities. More generally, in their efforts to strengthen national security and safeguard public safety, governments have paid less heed to the principles of multilateralism, due process and fundamental human rights – precisely those principles on which the refugee protection regime is founded.[35]

The perception persists that asylum provides a convenient cover for terrorists and their sympathizers. While this view may be based to a significant extent on the unfair stereotyping of asylum seekers (especially those who have travelled in an irregular manner, who are young and male, and who originate from countries that are associated with political violence and religious extremism) it cannot be entirely discounted. Asylum systems are not immune to abuse, and it would be naïve to believe that terrorists have ignored the opportunity to consider how the systems might be exploited.

At the same time, the security threat posed by the movement and presence of asylum seekers must be put into perspective. Asylum seekers are, for example, amongst the most closely scrutinized of all foreign nationals; they are routinely fingerprinted and checked against national and international security databases. Those who arouse any suspicion are liable to be detained, and to be monitored upon their release. If a terrorist wishes to enter and remain in a country undetected, submitting an application for asylum would not appear to be the most promising means of achieving that objective.

It is also essential to point out that the international refugee protection regime incorporates some robust mechanisms to prevent the abuse of asylum by those responsible for serious crimes. Article 1F of the 1951 UN Refugee Convention, for example, provides for the exclusion from refugee status of those responsible for war crimes, crimes against peace and humanity and serious non-political crimes committed outside the country of refuge prior to their admission to that country.[36] People who have engaged in acts contrary to the purposes and principles of the United Nations are also excluded from the protection of the Convention. In addition, the Convention allows for an exception to the principle of non-refoulement, permitting states to expel refugees from their territory if there are reasonable grounds for regarding them as a danger to national security, or if they have been convicted of a serious crime which constitutes a danger to that country.

The danger in the current international context is that states will use the issue of terrorism to legitimize the introduction of restrictive asylum practices and refugee policies, a process which began well before the events of 11September 2001.[37] Indeed, there is already evidence to suggest that the exclusion clauses of the 1951 UN Refugee Convention are being invoked more frequently, using low thresholds of proof and without adequate due-process protections. Terrorism is, of course, a matter of life and death, and it is incumbent upon states to ensure that their citizens enjoy the highest possible level of safety and security. At the same time, when decisions about the fate of asylum seekers are taken in haste, are made on the basis of inadequate evidence and are not open to public or judicial scrutiny, there is the serious risk of a miscarriage of justice which could place the life and liberty of those asylum seekers at serious risk.[38]

The asylum-migration nexus

In recent years, the issues of asylum and refugee protection have become inextricably linked with the question of international migration, especially those migratory movements that are undertaken in an irregular, undocumented or clandestine manner. That linkage is manifested in three principle ways. First, many migrants who are looking for work and who are not in need of international protection submit asylum applications once they have arrived in another country, hoping they might be granted refugee status because they have no other legal means of entering and remaining in that state, even on a temporary basis. Second, population movements from a single country may include some people who have a genuine claim to refugee status and others who do not, especially when that country is simultaneously affected by persecution, armed conflict, political instability and economic collapse. Third, many refugees and asylum seekers are obliged to move from one country to another irregularly because they are unable to obtain the passports, visas and tickets they need to travel in an authorized manner. Such phenomena are often referred to collectively as 'mixed migrations' or the 'asylum-migration nexus'.[39]

The new linkages that exist between asylum and migration derive from several dimensions of the globalization process: the growing disparity in standards of living and levels of human security in different parts of the world; the growth of global transportation, communication and social networks; and the ease with which capital and goods can now flow from one country and continent to another, while the movement of labour remains subject to strict controls.[40]

States, especially those in the developed world, have responded with some alarm to the issue of mixed migration, pointing to the relatively low proportion of asylum seekers who qualify for refugee status, the expense of maintaining their asylum procedures and social welfare systems, the difficulty of deporting those asylum claimants whose applications are rejected, and the security risks associated with the growth of irregular migration and human smuggling.[41]

Their primary response to this situation has been to introduce a raft of measures intended to obstruct or deter the arrival of irregular migrants in general and asylum seekers in particular, including those who have a bona fide claim to refugee status. In exercising their sovereign and legitimate right to control their borders and safeguard national security, states have made it increasingly difficult for people to 'seek and enjoy asylum in another state', a right guaranteed by the Universal Declaration of Human Rights. The number of asylum seekers registered in 50 European and non-European industrialized countries dropped by 40 per cent from 2001 to 2004.[42] While the drop may in part be due to a stabilization of the situation in war-torn countries such as Afghanistan, the Democratic Republic of Congo, Liberia and Sierra Leone, it also seems that the restrictive measures introduced by the world's more prosperous states have had their intended effect.

A principal goal of the Agenda for Protection is that of 'protecting refugees within broader migration movements.' If that objective is to be realized, it is essential to ensure that the principle of asylum is not undermined by the effort to stem irregular migration. First, states must respect Article 31 of the 1951 UN Refugee Convention, which states that refugees must not be penalized on account of their illegal entry or presence in a country, 'provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.' Second, police officers, border guards, immigration and asylum officials must be trained and convinced to uphold the principles of international refugee law. Third, states should establish fair, thorough and efficient refugee status determination procedures, so that asylum seekers are quickly informed of the outcome of their case. In situations of mass influx, the provision of prima facie refugee status to new arrivals has proven to be a particularly valuable means of safeguarding asylum and refugee protection. Fourth, if the integrity and credibility of asylum systems are to be preserved, steps must be taken to ensure the departure of those asylum seekers whose applications for refugee status are rejected after a full and fair examination of their case. In this respect, unsuccessful asylum seekers have a particular obligation to respect the law and to respect the wishes of the authorities when they are asked to leave the country. Fifth, there is a strong case to be made for the industrialized states, many of which are confronted with the prospect of diminishing and ageing populations and whose economies increasingly rely on illegal and casual migrant labour, to establish regular migration programmes.

Unless they are able to access the labour markets of the North by legal means, migrants from the South will continue to submit invalid claims to refugee status, further undermining public confidence in the whole notion of asylum. Similarly, an expansion of refugee resettlement programmes would allow more people who are in need of international protection to move in an orderly manner to, and gain residence rights in, a country which offers them a more promising future.

Finally, action is required to address the issue of 'onward movements', whereby refugees and asylum seekers move in an irregular manner from a country where they have already been granted (or had the opportunity to seek) asylum, often because they are unable to find an adequate degree of protection or standard of living in that state, and have no prospect of finding an early solution to their plight.[43] As demonstrated by the recent experience of sub-Saharan Africans who have moved to the countries of North Africa in the hope of gaining access to the European Union, the people involved in such movements have to spend large amounts of money for the services of human smugglers, and are then obliged to undertake very hazardous journeys in which their lives and liberty are at constant risk. Even then they have no guarantee that they will reach their destination. It is for this reason that UNHCR gives such priority to building protection capacities in countries of asylum.

Responses

Enhancing protection capacities

Notes

32. UNHCR, The State of the World's Refugees. Fifty Years of Humanitarian Action, Oxford University Press, Oxford, 2000, pp. 155-183.

33. UN Security Council Resolution, UN Doc. S/RES/1373 (2001), 28 September 2001, paras. (f) and (g).

34. Similar language can be found in later resolutions, most recently UN Security Council Resolution 1566 (2004), of 8 October 2004 and the General Assembly Resolution 59/195 of 22 March 2005.

35. V. Türk, 'Forced Migration and Security', International Journal of Refugee Law, vol. 15, no. 1, January 2003, pp. 115-6.

36. G. Gilbert, 'Current Issues in the Application of the Exclusion Clauses', in E. Feller et al. (eds) Refugee Protection in International Law, 2003, p. 428.

37. See for instance, S. Grey, 'United States: Trade in Torture', Le Monde Diplomatique, April 2005; Amnesty International, USA: Human dignity denied: Torture and accountability in the 'war on terror', AMR 51/145/2004, 27 October 2004, pp. 181-190; Amnesty International, USA/Jordan/Yemen. Torture and secret detention: Testimony of the 'disappeared' in the 'war on terror', AMR 51/108/2005, 4 August 2005.

38. European Commission, Commission Working Document. The Relationship between Safeguarding Internal Security and Complying with International Protection Obligations and Instruments, COM(2001) 743 final, of 5 December 2001, para. 2.3.1; and C. Dyer, 'Ministers Seek to Overturn Torture Rule in Deportations', The Guardian, 3 October 2005.

39. Global Commission on International Migration, Migration in an Interconnected World: New Directions for Action, Global Commission on International Migration, Geneva, October 2005, p. 40.

40. Ibid., p. 7.

41. Ibid., p. 33.

42. UNHCR, Asylum Levels and Trends in Industrialized Countries 2004, 1 March 2005, pp. 3-4.

43. Global Commission on International Migration, Migration in an Interconnected World: New Directions for Action, 2005, p. 41.