Chapter 2 Keeping Asylum Meaningful
This chapter describes the increasingly complex challenge of preserving refugee protection and the integrity of asylum. It begins by describing the international legal framework for refugee protection, then describes the inconsistencies that beset its practice, and its entwinement with other forms of migration and the need to strengthen the ‘governance’ of the international refugee protection system. It concludes with a list of steps to keep asylum meaningful.
The world’s refugee protection regime was designed to offer international protection to refugees who cannot rely on the protection of their own state. The term ‘asylum’ is not defined in international law, but it has come to refer to a status that guarantees refugees the enjoyment of their full human rights in a host country. For more than six decades, UNHCR has been responsible for ensuring international protection for refugees in cooperation with states, and faces an increasingly complex protection environment in which to take this responsibility forward.
The institution of asylum is threatened today by divergent approaches, and signs that two parallel systems may be operating: an asylum regime in the global North, and a refugee regime in the global South. Since most displaced people today flee conflict situations in countries such as Afghanistan, Iraq and Somalia, certain developing countries are confronted with the largest mass influxes. These countries tend to grant refugees admission and protection on a prima facie or group basis, thereby offering protection from refoulement [forced return]. In many cases, they also strictly limit the rights of refugees, and confine them to camps. In contrast, wealthier countries, geographically removed from crisis zones, have implemented numerous measures to deter and prevent the arrival of asylum-seekers and refugees. Previously, only countries in Europe and North America operated individual refugee status determination procedures. In 2010, a total 167 countries and territories received 850,000 individual asylum applications, ten countries received more than half of them, and South Africa alone received 180,600 applications.
The protection framework
The 1951 UN Refugee Convention and its 1967 Protocol remain the cornerstones of the international refugee protection system. The 1951 Convention is conceived as a universal human rights instrument to protect refugees from persecution, prevent their refoulement and guarantee their wider rights. Today, UN members continue to recognize the value and relevance of the Convention and its Protocol, even though they do not apply them consistently, some are not signatories, and others have not translated its provisions into national law. Since 1951, the refugee protection regime has been further strengthened by the adoption of regional instruments in Africa, Latin America, and the European Union, and by other developments in international human rights, humanitarian and criminal law.
The refugee protection system is weakened by its less than universal application. By 2011, a total of 148 countries had ratified the 1951 Convention and/or its 1967 Protocol; however, more than 40 per cent of refugees under UNHCR’s mandate were hosted by states that had not acceded to the instruments. When states do not accede to the Refugee Convention, or fail to live up to their obligations under it, or enter reservations to the text, the potential for a system of mutual understanding and collaboration is weakened.
The practice of asylum is fraught with inconsistencies that also undermine the integrity of the international refugee protection system. States determine protection needs in divergent ways, with many important host countries in the developing world using prima facie procedures and countries in the developed world using individual procedures. Between 2001 and 2010, some 2.1 million people were found, through individual determinations, to be refugees under the terms of the 1951 Convention or entitled to a complementary form of protection, and in most cases this brought access to rights that enabled them to integrate in their countries of asylum. During the same period, 2.7 million people were considered as refugees on a prima facie or group basis, mainly in countries neighbouring their own, frequently with limited access to rights.
UNHCR itself conducts more than one in ten of the world’s individual refugee status determinations. By 2010, 100 countries had established national refugee status determination procedures, but in 46 countries, UNHCR continued to determine refugee status under its mandate. In that year, UNHCR registered 89,000 new asylum claims and issued 61,000 substantive decisions—11 per cent of all individual asylum decisions worldwide.
States show further inconsistency in the way they grant protection to people fleeing from violence and conflict, with states in Africa and Latin America granting protection on this basis alone, and states in Europe and elsewhere requiring a specific link made to grounds outlined in the 1951 Convention. In addition, states are inconsistent in the way they understand persecution on the grounds of ‘membership of a particular social group,’ with some linking it to objective characteristics and others to social perceptions. A UNHCR study in 2011 found significant variation in the outcomes of asylum applications from situations of violence lodged in six European Union countries.
Further, both signatory and non-signatory states offer very different types of protection to asylum seekers, ranging from full entitlements and enjoyment of social and economic rights, to strict limitations upon these rights, including long-term encampment, and detention intended as a deterrent. Many signatory states scrupulously respect the requirements of the 1951 Convention and 1967 Protocol; others maintain legal reservations to key entitlements foreseen by these instruments; and still others have not translated the Convention provisions into national law. Violations of the Convention range from denial or failure to uphold refugees’ socio-economic rights to egregious acts of refoulement.
Mixed population flows, along with pressure on states to control their borders, have increasingly complicated access to asylum. A dramatic global increase in human mobility has coincided with increased irregular migration, complex migratory flows, security concerns and people crossing borders without prior authorization in a variety of circumstances and for a variety of reasons. States have struggled to manage immigration and respect international refugee law and human rights law, with some resorting to an array of border control mechanisms—border closures, push-backs, interception at sea, visa requirements, carrier sanctions and offshore border controls. All of these may impede access to refugee protection.
In response, UNHCR and partners have sought new ways to ensure refugee protection. In 2006, UNHCR developed a 10-Point Plan on Refugee Protection and Mixed Migration aimed at encouraging states to incorporate refugee protection into broader migration policies and to ensure that all migrants are treated with dignity. Between 2008 and 2011, UNHCR led a process of regional consultations to raise awareness of the protection-related aspects of mixed migratory flows, and to improve protection responses through better cooperation among key actors and the development of comprehensive regional strategies.
UNHCR has highlighted that victims of human trafficking are one group of migrants whose protection needs may not be sufficiently appreciated in the context of mixed migration. States need to assess whether the harm an individual fears as a result of having been trafficked may amount to persecution. In some cases, their treatment may be so atrocious as to amount to persecution in its own right.
UNHCR has recognized that security concerns following theSeptember 11, 2001 terrorist attacks in the United States, and subsequent strikes in other cities, made states increasingly worried about importing a terrorist under the guise of a refugee or an asylum-seeker. In 2010, UNHCR established a new unit dedicated to issues of protection and national security. Yet asylum channels are among the most closely regulated of entry channels, and the drafters of the 1951 Convention built in provisions that effectively address states’ security concerns.
Preserving the integrity of asylum requires strengthening the international ‘governance’ of asylum at both institutional and political levels. UNHCR’s Executive Committee (ExCom), comprising 85 states in 2011, has long been the leading body for asylum’s governance and, since 1975, has adopted annual Conclusions that served to maintain a global consensus on the international protection regime. In recent years, however, ExCom has struggled to secure a consensus, and discussion of asylum has begun to shift to groupings at regional levels. Since 2007, the High Commissioner’s annual Dialogue on Protection Challenges has become the principal forum for global discussions on refugee protection, supported by its follow-up activities.
UNHCR, which remains responsible for supervision of the application of the 1951 Convention, struggles to hold states accountable for respecting their obligations. The Convention lacks a supervisory mechanism akin to those for other UN human rights instruments. UNHCR has increasingly made submissions to national or regional courts in search of more consistency in the application of asylum decisions.
Asylum is primarily the responsibility of states, but politicians, community leaders, and the media can contribute to a climate of tolerance in which asylum can be properly managed. In many countries, asylum and immigration debates are intertwined and politicians have staked out anti-immigration positions. Negative attitudes are easily fuelled by concerns about the costs of maintaining asylum systems and hosting refugees. A climate conducive to asylum requires explaining the asylum issue as distinct from immigration in general; focusing on education about forced displacement, including through the media; and acting to combat xenophobia and intolerance.
The 1951 Refugee Convention is intended to confer a right to international protection on people who are vulnerable because they lack national protection, and to assure refugees the widest possible enjoyment of their rights. But translating this aspiration into reality remains a challenge. To keep asylum meaningful there is a need to ensure that all refugees are able to exercise their rights; that refugee protection does not depend on where an individual seeks asylum; that individual and group determination systems are made coherent, particularly in relation to conflicts; that governance structures for asylum are further developed to resolve tensions between states; and that UNHCR continues to serve as both a partner and a watchdog for individual states and the international community on matters of asylum.