Barrister Nadia Choudhury explains the current rules governing the rights of asylum seekers.
World War II left 40 million people across Europe stateless and displaced. The aftermath of the atrocious suffering people endured during this period was the revelation that the protection and security of fundamental human rights required strengthening.
The 1951 Convention Relating to the Status of Refugees, followed by the 1945 European Convention of Human Rights, came to be established and remains to this day a source of international protection available to asylum seekers. It was the first instrument which laid out the basic rights of refugees and states’ responsibilities towards them. The refugee crisis had been identified; consecutively, the need for international cooperation (burden-sharing among states and harmonisation) to tackle the crisis was acknowledged.
This was followed by the 1967 Protocol, which removed the geographical and time limitations written into the original Convention, therefore transforming the Convention into a universal instrument. The most important features that came out of the Convention, mandated by the United Nations High Commissioner for Refugees, was the definition of a refugee (defined for the first time under this instrument) and the non-refoulement policy.
The Convention defines a refugee as ‘A person who is outside his or her country of nationality or habitual residence; has well-founded fear of persecution because of his race, religion, nationality, membership of a particular social group or opinion; and is unable or unwilling to avail himself or herself of the protection of that country, or to return there for fear of persecution’.
Non-refoulement originates from the 1933 Convention under art. 32 and 33, prohibiting the removal of a refugee to the country where persecution is feared. Still, with the Convention made at a different time for a different set of people in mind, many people emerging from subsequent civil wars failed to be effectively accommodated within the Convention, such as internally displaced persons (as they are not people outside their country of origin).
Ultimately, through the changing times, the ‘good’ image of asylum seekers, escaping communism or the Jews seeking protection, has been drastically altered. The threat of increased number of immigrants looking to escape poverty and to enter the European job market through the asylum process, heightened fears of terrorist attacks and most importantly the government’s inability to manage the continually increasing number of asylum seekers have all contributed to a very different view of those who seek asylum.
As more and more rejected asylum seekers plunge into the UK’s black labour market and live in poverty, the media has seemed to be able to corroborate with xenophobic ministers’ agenda by depicting all asylum seekers as an unwanted category of people. Consequently, stricter border controls and other measures such as visas, carrier’s liability legislation and safe third-country principles came to be introduced. These restrictions, criticised by expert on international refugee law Dr James Hathaway, deprive asylum seekers of their right to seek asylum as was provided in the ambitious Universal Declaration of Human Rights.
The European Convention enshrined the Human Rights Charter and established the European Court of Human Rights (ECHR). Its most important articles relied on by asylum seekers to seek asylum on humanitarian grounds, are articles 3,5,13, 14 and 2 in extreme cases. Art 2-4 of protocol 4 also makes relevant provisions, but the UK has not ratified the optional protocol.
Article 3: Right to protection from torture, inhuman and degrading treatment: ‘this is an absolute right being one of the fundamental values of democracy and cannot be derogated from’. Landmark cases demonstrate what constitutes torture, inhuman and degrading treatment. In the case of Ireland v UK (1978), inhuman interrogation practices such as sleep deprivation and food deprivation used on IRA members, who conducted terrorist acts, were regarded as a breach of article 3. Torture was subsequently defined as ‘deliberate inhuman treatment causing very serious and cruel suffering’.
In the case of Aydin v Turkey (1997), a 17 year old girl was tortured, beaten and raped while held in detention by Turkish security forces. The decision of this case found that, the accumulative conducts of the state agents against her, breached article 3. The girl had also endured degrading treatment, defined as any treatment which debases or grossly humiliates. Another important case dealt with an applicant suffering from AIDS in D v UK (1997). The court ruled that, if by sending him back to his country of origin, where he would be subject to distressing circumstances, he is exposed to a greater risk of aggravated health deterioration, article 3, 8, 13 and 2 will be breached. Ill-treatment can also amount when facing a death row sentence (Soering v UK 1989), or when alleged to be involved in terrorist activities in his or her country of origin (Chahal v UK 1996).
In the case of Chahal, the court recognised the potential threat posed to his life if deported to Punjab, where he was tortured and beaten by the state police. The court had decided to prioritise his rights under the convention over national security. The same opinion was derived in the case of TI v UK (2000). The court held that sending the applicants to Germany puts them at a grave risk of refoulement to Sri Lanka, since under Germany’s interpretation of the Convention, they did not qualify as refugees. Even though where a person’s fundamental Convention rights are concerned, the UK cannot derogate from such obligations (Pretty v UK 2002); in these recent times of exaggerated fear of terrorists, court opinions have altered. The court maintained ill treatment as requiring, ‘a minimum level of severity, where actual bodily or physical harm is incurred, where the treatment humiliates, debases, shows lack or respect and causes fear and anguish and where naturally occurring illness may be exacerbated by detention, expulsion’ or other measures.
Article 5: Right to liberty and security: Are asylum seekers allowed the right to liberty and security? If so, then how can detention and removal centres be justified? The lawful explanation of detaining victims fearing persecution, goes on to reason that their detention is necessary to prevent unauthorised entry, which only the state can authorise.
Article 8: Right to respect for his private and family life, his home and his correspondence: The definition of a family is a wide one. For this article to apply, it must be shown that ‘it would be impossible for the applicant to start life anew in the new country without his family’ (Abdulaziz, Cabales and Balkan Dali v UK 1985). For example, ‘in consideration to obstacles mounting to language barriers, place of past residence, ability to adopt to living abroad’ and cultural, religious and social practices, etc.
Another implication under this provision for asylum seekers, is with regards to biometric data storage of asylum seekers under the recent UK legislation (Immigration, Asylum and Nationality Act 2006), and the requirement of medical screening on public health grounds. Can their information storage be held to breach their respect to private life?
Article 13: Right to an effective remedy: Every asylum seekers has a right to have his or her application reasonably considered. Should not this right therefore, also entitle an asylum seeker to an efficient appealing system?
Article 14: Every asylum seeker has a Right to non-discrimination in the application of the convention’s rights.
Article 2: Right to life: This article is only likely to be successful if the consequence of returning is definite death, which can only be assured under an awaiting death penalty. Even though fear of persecution for most asylum seekers entails ultimate death or at least a serious risk of death, definite death is hard to prove. Definite death under death penalty is unlikely because protocol 6 has abolished it.
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