Asylum and Human Rights - Essay Example

Asylum and Human Rights Asylum and Human Rights The Geneva Convention, 1951 lays out the internationally consented explanation of who is a refugee and norms for treatment of refugees and it serves as the legal foundation for refugee claims. Laws relating to refugee are still basically a part of international law. However, right to seek asylum is a methodology shared both between national and international law. A common European Asylum law by incorporating the main provisions of the 1967 New York Protocol and the 1951 Geneva Convention was introduced which is applicable to UK also. Well Founded Fear of Persecution In deciding the refugee application, UK administration will see that there exists well-founded fear which is crucial for the determination of refugee status. The objective aspect will examine at the objective principles of the claim and also the subjective principle will examine whether there is any presence of a fear of the objective conditions. (Harvey: 237). Thus, a refugee should demonstrate with concrete proof that they would suffer harassment if they return to their mother land. They should demonstrate that they would be subject to harassment or humiliation on logical grounds of persecution due to nationality, race, political ideologies and religion. In Adan v Secretary of State for the Home Department, Lord Slynn observed that well –founded fear must be present at the period when the claim for refugee status is to be determined. In Sivakumaran 1case, House of Lords observed that the fear of persecution must be a contemporary fear if it is the well founded. Thus, the most crucial factor in deciding the refugee status in UK is the Home Secretary’s evaluation of the narrations in the refugee application which will be considered in relation to the situations that existed in the applicant’s country of origin. (Harvey: 240). In Sivakumaran case , the issues pertains to Tamils in Sri Lanka and the House of Lords turned down the Court of Appeal’s acceptance of two tire test favoured by United States jurisprudence . The first is whether the individual is a refugee and the second is that would their freedom or life be in jeopardy. The Court of Appeal applied a composite standard of reasonable likelihood of real risk or harm to prove whether or not a fear was tenable or well-founded and prevented return to their mother land. In other parlance, the judges regarded the meaning of “well-founded fear” instead of “persecution.” The above decision did not meet the end of justice, given the incidence of atrocities unleashed on Tamil youths in Sri Lanka at that point of time. One cannot understand how a realistic Secretary of State of the Home Department had deemed it as counter –insurgency measure and have ignored the real possibilities that fear was of Convention persecution. In Sivakumaran case, the House of Lords were interpreting the ambit of the 1951 Convention and UK’s commitment under it ; any modification of Rules conflicting with this rendition of Convention rules would be ultra vires and will be against the section 2 of the Asylum and Immigration Appeals Act 1993. In Ravichandran’s case, the Court of Appeal was of the view that it is essential to prove under UK Immigration Rules that an individual should be both the refugee and to have suffered refoulement in his home country before asylum was granted and hence, immigration rules took precedence over the House of Lords verdict. In Gashi case, the Immigration Appeal Tribunal accepted the definition of persecution under Article 1(2) of the UNHCR. In Adan and others, Court of Appeals viewed that definition of persecution under Article 1 (2) is applicable and it rejected the definition of persecution that was due to the threat of life and liberty explained in Article 33. Mere arrest and detention will not tantamount to persecution. Likewise, not all feared persecutions like compulsory sterlisation, religious, ethnic or racial discrimination, prosecution for homosexual activities, deprivation of a livelihood and wife beating and only well-founded fear of persecution has to be proved for granting asylum status. (Shah et al: 124). In OT (Ivory Coast) v SSHD2, it was held that the intensity of political participation which the claimant had did not, on the discovery involve a menace of persecution. The Tribunal held that the claimant’s activities were at a low intensity. In SC (Zimbabwe) v SSHD3 , a teacher was recognised as a member of MDC and held that attributed political view could tantamount to persecution. For obtaining refugee status, an applicant must demonstrate that he has a “well-founded fear of being persecuted “and must not derive advantage from the safeguard of his mother land or of a third nation. Evidence of persecution is therefore the significant element in admission procedures. It is to be noted international instruments even though explain the reasons of persecution but does not elaborate on the terms “persecution” and “fear” have to be interpreted. Internal Flight Option Before granting asylum, a nation may look into whether asylum-seeker can evade persecution in his mother land by relocating to another province in that nation. This concept is known as Internal Flight Alternative which permits a host nation to refuse asylum when it concludes that he asylum-seeker had tried out all the alternative options of moving out to safety provinces of his country before seeking asylum. In exp Yurekli, it was held that it was not unreasonable for the Home Secretary to look into the reality that the applicant could have moved and lived in another part of his nation of origin without being victimised. In other parlance, it was held by the court that it was not unreasonable for the Home Secretary to use the “internal option “policy. (Harvey: 227). It is to be noted that some individual is being actively hunted by a military regime and in such scenarios, internal flight option may not be a viable option. In many sub-Saharan African nations, each province has its own language, culture, custom etc and a stranger who wishes to move to another province may be at a further disadvantage for this reason. An internal flight alternative ought to be viable, realistic, accessible and safe. It is to be recalled here that this phenomenon is supported by UNHCR rule; “In such scenario, an individual will not be refused from refugee status just because he could have taken refugee in the province of the same country if under all scenarios it would not have been reasonable to anticipate him to do so. In Ismail Alan v. Switzerland, the committee reconsidered the chances of an “internal flight” option for the applicant and found that this may not be a viable alternative in Turkey considering the political scenario existing there. Recent happenings has established on various situations how internal ‘safe heavens’ were in fact subject to considerable danger. Apparent instances of the unsuccessful of these policies were the purportedly UNPROFOR (United Nations Protection Force) safeguarded provinces in erstwhile Yugoslavia, the Rwandan UNHCR refugee camps and the Kurdish protection zone. Further, the failure to safeguard these safe heavens from what effectively tantamount to genocide could be directly ascribed to those powers that so eagerly supported the ‘internal flight option’ in their laws. (Boccardi: 78). According to Weis, the theoretical approach of internal flight option is not relevant and is not of much significance as it does not cover on the fundamental justification of protection for refugees due to lack of diplomatic safeguard due to persecution. Further, internal flight alternative do not cover the fundamental rationale of refugee safeguard. There will be absence of diplomatic protection because of fear of persecution. An individual will not be covered under diplomatic safeguard due to fear of persecution though an internal flight option is available to him. According to Weis, such individuals should qualify for a refugee status and their application cannot be rejected under the ground of availability of internal option. As per Grahl –Madsen view, protection to refugees aspires to rectify the ineffective nationality of the refugee mainly due to fear of persecution. The nationality of a person will become ineffective due to fear of harassment though an internal flight option is available. It goes after that such individual should be declared as refugee even if an internal flight option is available. According to Grahl –Madsen’s hypothesis, refugee protection is meant to offer remedy for ineffective nationality of the refugee mainly owing to persecution. Hence, an internal flight option does not fall under this reasoning. Though internal flight alternative is available, the nationality of an individual will become unsuccessful, as such individual should eligible to claim refugee status. (Nathwani 100) In Hilal v United Kingdom4, the European Court of Human Rights (ECHR) rebuffed that an internal flight option was available in mainland Tanzania for an applicant fleeing harassment in Zanzibar. The Court observed that the police in Tanzania may be considered as institutionally associated to the police in Zanzibar as part and parcel of the Union and cannot be trusted on as a protection against arbitrary action. (Feller: 396) In Januzi and others v SSHD5, it was held that where the State is in full control of the results and the police are vigorous everywhere ‘internal relocation is evidently not a viable alternative. In view of the above, both the well founded fear of persecution and internal flight option plays a pivotal role in granting asylum to an applicant in UK. List of References Boccardi Ingrid (2002). Europe and refugees. Bedfordshire: Kluwer Law International. Georgia Clayton. Immigration and Asylum Law. Oxford: Oxford University Press. Harvey Colin. (2000). Seeking asylum in the UK: problems and prospects. Cambridge: Cambridge University Press. Nathwani Niraj. (2003) Rethinking refugee law. JC Leiden: Martinus Niijhoff Publishers. Shah Prakash, Blake Nicholas J & Deobbler Curtis Francis. (1999). United Kingdom Asylum Law in its European Context. London: CD Publishing. Read More