Rahul Sharma (Editor)

Asylum seeker

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An asylum seeker (also rarely called an asylee) is a person who flees from one country and applies for asylum, i.e. the right to international protection, in another country. An asylum seeker may be a refugee, a displaced person or a migrant, such as an economic migrant. A person becomes an asylum seeker by making a formal application for the right to remain in another country and keeps that status until the application has been concluded. The relevant immigration authorities of the country of asylum determine whether the asylum seeker will be granted asylum and becomes an officially recognised refugee or whether asylum is refused and the person has to leave the country again and may even be deported. The asylum seeker may be recognised as a refugee and given refugee status if the person's circumstances fall into the definition of "refugee" according to the 1951 Refugee Convention or other refugee laws, such as the European Convention on Human Rights – if asylum is claimed within the European Union. However signatories to the refugee convention create their own policies for assessing the protection status of asylum seekers, and the proportion of asylum applicants who are rejected varies from country to country and year to year.

Contents

The terms asylum seeker and refugee are often confused: an asylum-seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated. On average, about 1 million people seek asylum on an individual basis every year.

Non-governmental organizations concerned with refugees and asylum seekers have pointed out difficulties for displaced persons to seek asylum in industrialized countries. As their immigration policy often focuses on the fight of illegal immigration and the strengthening of border controls it deters displaced persons from entering territory in which they could lodge an asylum claim. The lack of opportunities to legally access the asylum procedures can force asylum seekers to undertake often expensive and hazardous attempts at illegal entry.

Making an application

Some countries offer "asylum visas" which are a safe and legal way to reach the country where asylum will be claimed. Many countries don't offer that, which is why many people take large risks for entering these countries. In many countries asylum can only be claimed on arrival in the country:

  • When seeking admission at a port of entry (air- or seaports) when they first arrive, i.e. before passing through immigration control.
  • In-country applicants apply for asylum onshore after passing through immigration control. Some governments are tolerant and accepting of onshore asylum claims; other governments arrest or detain those who attempt to seek asylum; sometimes while processing their claims.
  • After making an unauthorized arrival and bypassing immigration control.
  • After making a legal entry but then having lost the right to stay or remain, such as after having overstayed a Visa.
  • As a response to being detained or apprehended by immigration enforcement.
  • Different types of asylum and protection

    Asylum as an institution is not restricted to the category of individuals who qualify for refugee status. Rather on the contrary, this institution predates the birth of the international regime for the protection of refugees.

    Convention refugee status

    As at 1 July 2013, there were 145 parties to the 1951 Refugee Convention and 146 to the 1967 Protocol. These states are bound by an obligation under international law to grant asylum to people who fall within the definition of Convention and Protocol. The refugee definitions of 1951 and 1967 are the stictest and most exclusive and persons who fall within this definition are called Convention refugees and their status is called Convention refugee status. Persons who do not fall within this definition may still be granted complementary forms of protection, if they fall within other refugee definitions.

    The practical determination of whether a person is a refugee or not is most often left to certain government agencies within the host country. In some countries the refugee status determination (RSD) is done by the UNHCR. The burden of substantiating an asylum claim lies with the claimant, who must establish that they qualify for protection.

    In many countries, Country of Origin information is used by migration officials as part of the assessment of asylum claims, and governments commission research into the accuracy of their country reports. Some countries have studied the rejection rates of their migration officials making decisions, finding that individuals reject more applicants than others assessing similar cases - and migration officials are required to standardise the reasons for accepting or rejecting claims, so that the decision of one adjudicator is consistent with what their colleagues decide.

    Complementary forms of protection

    The refugee definition of the 1951 Convention is universally binding, but there are many other definitions according to which protection may be offered to people who do not fall within this definition.

    Subsidiary protection status

    Subsidiary protection is an international protection for persons seeking asylum, but do not qualify as refugees. It is an option to get asylum for those who do not have a well founded fear of persecution (which is required for refugee status according to the 1951 Convention), but do indeed have a substantial risk to be subjected to torture or to a serious harm if they are returned to their country of origin, for reasons that include war, violence, conflict and massive violations of human rights. The Universal Declaration of Human Rights and European Union law have a broader definition of who is entitled to asylum.

    Compassionate and humanitarian grounds

    For cases that do not fit the Convention definition but nonetheless merit humanitarian concern. This is used amongst others in Canada and Australia.

    Group determination

    Asylum seekers may be given refugee status on a group basis. Refugees who went thought the group status determination are also referred to as prima facie refugees. This is done in situations when the reasons for seeking refugee status are generally well known and individual assessment would otherwise overwhelm the capacities of assessors. Group determination is more readily done in states that not only have accepted the refugee definition of the 1951 Convention, but also use a refugee definition that includes people fleeing indiscriminate or generalized violence, which are not covered in the 1951 Convention.

    Individual assessment

    For persons who do not come into the country as part of a bigger group individual asylum interviews are conducted to establish whether the person has sufficient reasons for seeking asylum.

    Appeals

    In many countries, asylum applicants can challenge a rejection by challenging the decision in a court or migration review panel. In the United Kingdom, more than one in four decisions to refuse an asylum seeker protection are overturned by immigration judges.

    Rights of asylum seekers

    Whilst waiting for a decision asylum seekers have limited rights in the country of asylum. In most countries they are not allowed to work and in some countries not even to volunteer. In some countries they are not allowed to move freely within the country.

    Destitution

    Because asylum seekers often have to wait for months or years for the results of their asylum applications and because they are usually not allowed to work and only receive minimal or no financial support destitution is a considerable risk.

    Asylum seekers usually get some kind of support from governments whilst their application is processed. However, in some countries this support ends immediately once they are given refugee status. But the fact that they were given refugee status does not mean that they were already given all the documents they need for starting their new lives. Because of these circumstances, some refugees are forced to sleep rough and beg for money or, if they’re lucky, rely on the generosity of charities and friends for food and shelter.

    Refusal of asylum

    It often happens that the country neither recognizes the refugee status of the asylum seekers nor sees them as legitimate migrants and thus treats them as illegal aliens. If an asylum claim has been rejected, the asylum seeker is said to be refused asylum, and called a failed asylum seeker. Some failed asylum seekers voluntarily return home and some are forcibly returned. They are most often placed in immigration detention before being deported.

    If asylum seekers have serious medical problems or it is not safe for them to return to their country of origin it is against international law to deport them. However, sometimes they are deported even though they face risks there and it is not safe for them to return.

    UK authorities have been accused of paying insufficient attention to medical evidence of torture in some cases.

    Exclusion from protection

    Asylum seekers who have committed crimes against peace, a war crime or a crime against humanity, or other serious non-political crimes, or whose actions are contrary to the purposes and principles of the United Nations, are excluded from international protection.

    References

    Asylum seeker Wikipedia


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