Note on Asylum

EC/SCP/12

I. Introduction

1. In the Note on International Protection (document A/AC.96/567), submitted to the Executive Committee, attention has been drawn to a number of serious developments in the field of asylum. These developments include a general refusal by States in a particular area to grant even temporary admission to large numbers of asylum-seekers arriving by sea, a similar systematic refusal is of admission at land frontiers, and the large-scale refoulement of refugees and asylum-seekers who had already entered a State's territory.

2. The problems that arise in the case of a large-scale influx of asylum-seekers are of a special character, often calling for extraordinary solutions on the international plane. In the present Note, attention is drawn to a number of problems with which individual refugees and asylum-seekers are confronted in different areas of the world. These problems arise in three types of situation; (a) where an asylum-seeker encounters difficulty in finding a country that is willing to consider his asylum request with a View to granting him asylum; (b) where a refugee for various reasons loses his right to reside in or to return to his country of asylum, without having acquired the right of residence in another country; (c) where a refugee leaves his country of asylum for compelling reasons. Situations of this kind which have been described as "orbit" situations - involve considerable hardship for the individual refugee or asylum-seeker. Due to the fact that- he cannot -find a haven of refuge, or that he has been "Cut adrift" from the country where he once enjoyed asylum, he may be forced to move from country to country in the. hope of finding a solution elsewhere. In pursuing his quest, he may have no alternative but to enter in an irregular manner the territory of States to. whose authorities he wishes to address himself in the hope of finding asylum. This, however, will expose him to the risk of imprisonment or detention as a result of his illegal presence in the country. In its day-to-day work, the Office frequently encounters cases in which refugees and asylum-seekers are detained or imprisoned for such reasons.

3. The problems that arise in the situations described above affect not only individual refugees or asylum-seekers but also the various States that might be called upon to provide solutions for them. Such solutions must therefore also be sought within the context of international co-operation and solidarity. The High Commissioner believes that efforts to find appropriate solutions within this context will be greatly facilitated by the Sub-Committee's consideration of the matter.

II. Difficulties encountered by refugees in finding a country of asylum

4. There are a number of reasons why asylum-seekers may encounter difficulties in finding a country that is willing to examine their asylum request:

(a) Restrictive practices of certain States

5. Restrictive practices in regard to asylum may take different forms. Some States close their borders to asylum-seekers and do not permit them to enter, their territory in order to submit an asylum request to their authorities. In some States, subordinate authorities are not given the necessary instructions for with asylum requests and therefore simply treat asylum-seekers as ordinary aliens wishing to enter or to remain in the States territory. Some States are only prepared to examine asylum requests by persons who have entered their territory legally. If an asylum-seeker enters the territory of such States in an irregular manner which he may frequently be obliged to do - he will simply be treated as an illegal immigrant subject to punishment and expulsion, and his asylum request will not be taken into consideration. Other States apply unduly restrictive criteria when evaluating asylum requests, or exclude certain groups of asylum-seekers for political reasons connected with their relations with the asylum-seekers country of origin. Finally, certain States, while observing the principle of non-refoulement, are only prepared to admit asylum-seekers to their territory on a strictly temporary basis, pending their rapid onward movement to another country. In such cases, due to the precarious nature of their presence, the authorities do not normally. regard it as necessary to carry out a full investigation into the reasons invoked by asylum-seekers in support of their asylum requests.

(b) The concept of the "country of first asylum"

6. Unlike those States mentioned in the preceding paragraphs, many States are prepared to grant asylum to persons whom their authorities consider to be refugees. In the case of States parties to the 1951 Convention and the 1967 Protocol, refuge status under these instruments is frequently a criterion for the granting of asylum.

7. States that thus grant asylum normally also apply certain, specific criteria for determining whether or not they are the "country of first asylum" i.e. the State to which an application for asylum should appropriately be addressed. These criteria are based principally on an evaluation of the circumstances arising between the departure of the asylum-seeker from his country of origin and his arrival in the country where he wishes to present his asylum request. Where an asylum-seeker proceeds to that country directly by land, sea or air, without transiting any other country, there will usually be little difficulty in considering that country as the "country of first asylum".

8. The position may, however, be less clear if the asylum-seeker has passed through one or more intermediate countries. (i) Certain States apply a strictly geographical criterion and consider that, where an asylum-seeker has passed through another country, it is to the authorities of that country that the asylum-seeker should have addressed himself. (ii) Other States place emphasis on the time element -and consider that they are not the "country of first asylum" if more than a certain period has elapsed the asylum -seeker's departure from his country of origin and his arrival in their territory. The length of the period varies according to the practice of different States. Certain States apply the criterion of the time spent in an intermediate country or countries in a strict manner, while others permit exceptions, e.g. if the asylum-seeker can bring forward good reasons to explain his having remained in the intermediate country beyond the specified period. (iii) Another criterion relates to the nature of the asylum-seeker's sojourn in an intermediate country, and in particular whether, during his sojourn he has established any relevant links with that country. An important variant of this criterion is that of so-called "protection elsewhere". According to this variant, the State to which an asylum-seeker addresses himself is to be considered the "country of first asylum" unless he has already obtained protection in another country, and in particular protection against expulsion and refoulement. (iv) In certain States regard is had to the intentions of the asylum-seeker. If the asylum-seeker can show that it was his intention, when leaving his country of origin, to request asylum in that particular State, loss importance will be attributed to the length of time spent by him in an intermediate country or countries. Other States do not take the asylum-seeker's intentions into account, or do not attribute decisive importance to them. (v) It should finally be mentioned that some States apply a combination of the various criteria. Others do not apply any specific criterion, and take all the circumstances into account in arriving at a conclusion.

9. The consequences for the individual asylum-seeker of the application of the various criteria will depend on the circumstances of his particular case. Experience has shown, however, that they may often operate to his detriment, especially as regards those criteria that apply a fixed and usually short period of sojourn in an intermediate country or countries. One particular difficulty inherent in the criteria is their frequently "negative" character. If, for example, an asylum-seeker has spend longer than the specified period in an intermediate country or countries, the country in which he wishes to submit his request will not consider itself the" country of first asylum". This does not, however, provide a solution for the asylum-seeker, who will need to make a further effort to find an asylum country. The criterion of the links that, an asylum,-seeker may have established with another country also has certain negative aspects. A determination that the country in which he seeks asylum is not his "country of first asylum", because ho has established relevant links with another country, will only resolve his problem if it is in fact possible for him to request and obtain asylum in that other country. Similar considerations apply as regards the criterion of "protection According to this criterion, an applicant must be. granted asylum unless he has already received protection" in another country. The application of this criterion will only provide a solution for the individual asylum-seeker if it is in, fact possible for him to return to and remain as an asylee in the country in which has previously received "protection".

10. There is thus a definite need for a close examination by Governments of the problem of the "country of first asylum" with a view to establishing common criteria. Such criteria should make it possible to identify in a positive manner the country that should be considered responsible for examining an asylum request. They should thus be "solution-oriented", and should not, as is frequently the case at present, merely make it possible to determine that the State to which the asylum-seeker addressed himself is not the "country of first asylum". Moreover, the country that, through the application of the proposed criteria, is identified as the "country of first asylum" should be a country to which the asylum-seeker is in fact able to proceed and where his asylum request will be examined by the authorities.

11. The criteria should make it possible to take all the relevant factors into account in order to arrive at an equitable solution. Attention should, as far as possible, be paid to the wishes of the asylum-seeker, and the asylum-seeker should, in principle, not be required to seek asylum in a country with which he has not established any relevant links. In this respect, mention should be made of the draft additional paragraph of Article 1 adapted by the Drafting Committee of the Committee of the Whole of the United Nations Conference on Territorial Asylum which met from 10 January to 4 February 1977. According to this paragraph,

"Asylum should not be refused by a Contracting State solely on the ground that it could be sought from another State. However, where it appears that a person before requesting asylum from a Contracting State already has a connexion or close links with another State, the Contracting State may, if it appears fair and reasonable, require him first to request asylum from that State."¹

12. In seeking to arrive at a solution that is "fair and reasonable", it is necessary to take the legitimate interests and needs of the asylum-seeker into account. Regard should also be had to the interests of the various States that may be involved. If a State determines that an asylum-seeker should appropriately address himself to another State, it necessarily imposes a burden on that State's authorities . This may not, however, constitute a "fair and reasonable solution vis-à-vis the second State if the asylum-seeker has no connection with that State other than having spent a relatively short period there while in transit. It may also not be a "fair and reasonable" solution vis-à-vis the second State, if the latter happens to be a State that, by reason of its geopolitical situation, is confronted with serious problems in granting asylum. In relation to States confronted with such problems, it is relevant to consider the principle of "burden-sharing", which has now acquired general acceptance². This principle should militate against requiring a person to seek asylum in such a State, in the absence of cogent reasons.

13. The elaboration of criteria that would enable all the relevant factors to be taken into account in identifying the "country of first asylum" may not, however, provide a solution for every case. There are always likely to be cases for which the criteria, however well devised, will not provide a clear answer. Moreover, as mentioned above, a "fair and reasonable" solution may in some cases require account to be taken of the interests of the individual asylum-seeker as well as of the State or States involved. The search for such solutions may therefore call for goodwill and a positive and constructive approach on the part of all concerned. It is therefore necessary not only to establish criteria but also to provide for appropriate institutional arrangements, e.g, provision for consultation between interested Governments to deal with cases that it has not been possible to resolve.

(c) Exclusion of applications from the asylum procedure on formal grounds

14. In certain States the examination of an asylum request is conditional upon the request being submitted within a certain period after the asylum-seeker has entered the country. Where an asylum request is submitted after this period has elapsed, it can no longer be taken into consideration. Certain States that adopt such rules apply them strictly. In other States, exceptions are possible if the asylum-seeker can provide an acceptable explanation for not having submitted his asylum request within the specified period. Rules of this kind should, in principle, not be applicable to cases where an asylum-seeker has entered the territory in a regular manner and for as long as his stay in the territory is legal. Where, however, an asylum-seeker as is frequently the case enters the territory in an irregular manner, the State has a legitimate interest in ensuring that he presents himself without delay to the competent authorities. While failure to do so could justifiably make an asylum-seeker subject to punishment according to the law, it should not result in his asylum application being excluded from consideration.

15. In this connection, it may be recalled that article 31 of the 1951 Convention exempts refugee who come directly from a territory where their life or freedom is threatened from punishment for their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. If, therefore, they fail to present. themselves to the authorities in due time, they may be subjected to punishment for their illegal entry or presence, but they nevertheless maintain their refugee status.

16. For similar reasons, failure, to submit an asylum request within a specified period should not lead to the exclusion of the request from consideration. Such exclusion necessarily leads to a situation in which the asylum-seeker is obliged to go in search of another country of asylum. When approaching the authorities of another country, however, he will in all probability encounter serious difficulties, since the second country may consider that he has already established a connection with the first country, which can thus be regarded as the "country of first asylum".

17. It may be added that situations of this kind can arise not only where provision is made for the submission of an asylum application within a specified period. They can also arise after an asylum application has been accepted for consideration, if there has been a non-observance of form requirements established within the asylum procedure, e.g. time-limits for submitting documents or for appearing personally before the competent authorities. The consequences of such a failure to observe procedural requirements - which in many cases may be duo to more inadvertence - are frequently of the sane serious character as those mentioned in the preceding paragraph.

(d) Refoulement agreements

18. A number of States have concluded agreements providing for the return to the other contracting State of persons who have entered their territory from that State in an unlawful manner. Such return is normally-made dependent upon the fulfilment of certain formal requirements, e.g. the period spent by the person concerned in the other contracting State, or the submission of the request for his re-admission within a specified time-limit. Such "refoulement" agreements apply both to nationals of the contracting States and in many cases also to aliens. They could therefore also apply to persons coming illegally from the territory of another contracting State in order to seek asylum. To apply the provisions of refoulement agreements to asylum-seekers may, however, lead to situations in which the relevant criteria for identifying the "country of first asylum" are not taken into account and in which asylum-seekers are simply returned to the other country on purely formal grounds. It is therefore desirable that refoulement agreements be applied with due regard to the special situation of the asylum-seeker.

III. Loss by a refugee of his right to reside in or to return to his country of asylum

19. When a refugee has been granted asylum in a particular country otherwise than on a strictly temporary basis, situations may arise in which he loses his right to reside in or to return. to his asylum country, even though he has not acquired the right of residence elsewhere. This situation could arise in a variety of circumstances: the refugee may lose his right of residence due to departure or, absence from the country for a certain period; while outside the country, the validity of the refugee's travel document and/or of the right of return given by the travel document may expire and the issuing authorities may not consider themselves obliged to grant a renewal; the refugee may be the subject of an expulsion measure; and finally, there may be cases in which the refugee leaves his country of asylum, for compelling reasons.

(a) Loss of right of residence through departure or prolonged absence

20. Even though a refugee has been granted asylum, it may nevertheless be necessary for him to travel to other countries for longer periods, e.g. to look for study or employment opportunities. Under the legislation or a restrictive regulations of a number of countries, however, a refugee may lese his right of residence upon departure or through absence from the country for more than a certain period. Even though the travel document issued to him by the authorities of that country may still be valid and may still give him the right of return, a refugee may find himself in difficulty if he returns to the country, due to his right of residence there having terminated. The authorities of certain countries may be willing to regularize the status of the returning refugee and to allow him to take up residence once again. In other countries, however, the attitude adopted vis-à-vis the returning refugee is more strict and may involve the imposition of penalties and measures of detention, based on the fact that his situation in the country is no longer considered legal. Such an attitude on the part of the authorities may seriously discourage a refugee from returning and, if he has not been granted the right of residence elsewhere, pay place him in a situation where he is again without a country of asylum.

(b) Expiration of validity of refugee's travel document and/or of the right to return

21. Where a refugee proceeds to mother country on the basis of a travel document issued by his current country of asylum, and the validity of his travel document expires while he is abroad, the issuing country nay refuse to re-admit him even though he may not have acquired a right of residence in another country. In certain cases, the travel document my give a right to re-admission that is shorter in duration than the validity of the travel document itself. In such cases, the issuing country may not grant re-admission even though the travel document may still be valid. In some cases, the refugee may have allowed the validity of the travel document or the right of return to expire, through ignorance of the relevant regulations. In other cases, the refugee may have intentionally allowed the validity of the travel document or of the right to return to expire in order to sever his connection with the issuing country. In either case, however, he may find himself in a situation where he is without a country of asylum.

22. Problems of this kind may arise where the refugee has been issued with a travel document as provided for in the 1951 Convention, or with other types of documentation (e.g, if the State in which he has been granted asylum is not a party to the 1951 Convention or to the 1967 Protocol). As regards travel documents issued to refugees by virtue of the 1951 Convention and/or the 1967 Protocol, paragraph 6 (1) of the Schedule to the Convention provides that:

"The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is, under the same conditions, a matter for the authority which issued the former document."

Moreover, according to paragraph 11 of the Schedule:

" When a refugee has lawfully taken up-residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply."

23. The purpose of those provisions is to avoid a vacuum and to ensure that there will always be a country that is responsible for issuing a travel document to the refugee and, to which, by virtue of the travel document, the refugee is entitled to return. The wording of paragraph 6 of the Schedule has, however, given rise to some difficulty in so far as it states that the obligation to extend the validity of or to renew the travel document shall exist so long as the holder has not established lawful residence in another territory "and resides lawfully in the territory of the said authority". The travaux préparatoires do not throw any light on the meaning of these words, which could be taken to mean that the obligation of the issuing State to renew or extend the validity of the refugee's travel document is conditional upon the refugee continuing to be physically present in its territory. Such an interpretation would not, however, be in line with the purpose of paragraphs 6 and 11 of the Schedule, since it would imply that a State could cease to be responsible for the issue of a travel document even though the refugee has not established lawful residence in another country, i.e. to place a refugee in a situation where he is without a country of asylum.

(c) Expulsion

24. Situations unfortunately arise in which the authorities of an asylum country fool constrained to resort to an expulsion measure against a refugee. Even though such a measure may be justified according to article 32 of the 1951 Convention, the consequences for the refugee are very serious and may often load to special hardship. The refugee will, in particular, lose the right to reside in his asylum country, and he will normally have no country, other than his country of origin, in which he is entitled to take up lawful residence. If he proceeds to another country in an irregular manner - which he may sometimes feel obliged to do - he will encounter numerous difficulties possibly including imprisonment and detention, duo to his illegal presence in the second country. He may be returned to his original country of asylum where, however, his presence is also illegal. In other words, he is once again in the position of a refugee without a country of asylum.

25. The question of expulsion of refugees was considered by the Executive Committee at its twenty-eight session. In its conclusions, the Committee recognized that a measure of expulsion may have very serious consequences for a refugee and his immediate family members residing with him. The Committee therefore recommended inter alia that, in line with article 32 of the 1951 Convention, expulsion measures against a refugee should only be taken in very exceptional cases and after due consideration of all the circumstances, including the possibility for the refugee to be admitted to a country other than his country of origin. The Committee further recommended that, in cases where the implementation of an expulsion measure is impracticable, States should consider giving refugee delinquents the same treatment as national delinquents, and that States examine the possibility of elaborating an international instruments giving effect to this principle. (Document A/AC.96/549 paragraph 53(5)).

(d) Cases in which a refugee leaves his country of asylum for compelling reasons

26. Where a refugee has been granted asylum in a particular country, he is normally not entitled to seek asylum in another country. If he wishes to take up permanent residence in another country, this can only be through acceptance for resettlement by the authorities of that country, or by transfer of lawful residence within the meaning of paragraphs 6 and 11 of the Schedule to the 1951 Convention (cf. paragraph 22 above). A refugee in his country of asylum may, however, find himself in so precarious a situation, e.g. if his physical security or freedom is in danger, that it can reasonably be said that he does not enjoy the protection normally associated with asylum, and indeed that lie does not have asylum" in the true sense of the term. If, as a result, he feels obliged to seek asylum in another country, his case should be favourably considered and he should not simply be told that he already has a country of asylum.

27. There may, however, also be cases where the prevailing conditions in the country of asylum, e.g. lack of employment or study possibilities, are such to make it genuinely impossible for a refugee to establish himself there. Cases of this kind should normally be resolved in the context of resettlement. Where, however, a refugee, in these circumstances, leaves his country of asylum on his own initiative there may be good reasons for other countries to give sympathetic consideration to his understandable desire to establish himself elsewhere. In any event, it is important that he should, if necessary, be re-admitted by the country of asylum so as to avoid a situation in which he once again becomes a refugee without an asylum country.

IV. Conclusions and possible solutions

28. At its twenty-eighth session, the Executive Committee expressed concern that cases continued to occur in which asylum-seekers had encountered serious difficulties in finding a country willing to grant them even temporary refuge, and that refusal of permanent or temporary asylum, had led in a number of cases to serious consequences for the persons concerned. it is indeed axiomatic that a person fleeing from persecution should always receive temporary refuge if this is necessary for his immediate protection, and should also have the possibility of receiving durable asylum within the shortest possible time. The aim of the preceding paragraphs has been to illustrate the various difficulties that asylum seekers may encounter in this respect, and also to describe the circumstances in which a refugee who has already been granted asylum may once again find himself in the position of a refugee without an asylum country. Situations in which refugees and asylum-seekers encounter problems of this kind invariably give rise, to considerable hardship and should as far as possible be avoided through the adoption of appropriate solutions on the international plane. In seeking such solutions, the following considerations may be relevant:

(a) States that at present follow restrictive asylum practices, e.g. by closing their frontiers to all or to certain groups of asylum-seekers, should in a spirit of international solidarity adopt a more flexible approach so as to increase the possibilities for refugees to find a country of asylum.

(b) An effort should be made to resolve the problem of the "country of first asylum" by the establishment of common criteria. In elaborating such criteria, the following factors should be taken into account:

(i) The criteria should make it possible to identify in a positive manner the country that should be considered responsible for identifying an asylum request, and to whose authorities the asylum-seeker can in fact address himself. They should be "solution-oriented" and should not, as is frequently the case at present, merely establish that the State to which an asylum-seeker addresses himself is not the State to which an asylum application should be addressed.

(ii) If an asylum-seeker has passed through one or more intermediate countries, regard should not only be had to the period spent there but also of the nature of his sojourn, including the possibility that the links that he may have with another country - or countries - are of such a character as to make it reasonable to expect him to seek asylum there.

(iii) Consideration should as far as possible be given to the intentions of the asylum-seeker as regards the State in which he wishes to submit his request.

(iv) Account should also be taken of the concept that asylum should not be refused merely on the ground that it could have been requested from another State.

(v) The establishment of criteria should be accompanied by appropriate institutional arrangements, e.g. regular consultations between interested Governments to deal in particular with cases in which it has not been possible to find a solution.

(vi) Refoulement agreements should be applied in respect of asylum seekers with due consideration for their special situation.

(c) Asylum requests should not be excluded from consideration under asylum procedures because of mere non-compliance with formal requirements, such as failure to submit an asylum request within a specified period.

(d) States should pay particular attention to the need for avoiding situations in which refugees lose their right to reside in or to return to the country of asylum without having acquired the possibility of taking up residence in another country.

(e) In line with the Conclusions adopted by the Committee at its twenty-eighth session, States, if constrained in exceptional cases to adopt expulsion measures against a refugee, should give due consideration to whether or not the refugee has the possibility of being admitted to a country other than his country of origin.

(f) In applying internal legislative or administrative provisions concerning the loss of the right of residence of a refugee, or also generally in the case of departure or prolonged absence, States should have particular regard to the need for avoiding situations in which refugees find themselves without a country in which they can lawfully reside.

(g) States, in line with the purpose of paragraphs 6 and 11 of the Schedule to the 1951 Convention, should continue to extend the validity of or to renew refugee travel documents until the refugee has taken up lawful residence in the territory of another contracting State. A similar practice should as far as possible be applied, mutatis mutandis, in respect of travel documents other than those issued to refugees by virtue of the 1951 Convention or the 1967 Protocol.

(h) Where a refugee who has already been granted asylum in one State requests asylum in another State on the grounds that he has compelling reasons for leaving his present asylum country, e.g. danger to physical security or freedom, the authorities of the second State should give favourable consideration to his asylum request.

1 See Report of the United Nations Conference on Territorial Asylum, A/CONF.78/12, Annex II

2 United Nations Declaration on Territorial Asylum, 14 December 1967, Article 2; OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, September 1969, Article II.4.