Test your understanding of global refugees by answering questions about them. The statistics and information from the most recent Global Trends Report of the UNHCR are the basis for the quiz.
Due to the adoption of the Asylum Procedures Directive and other asylum and immigration laws by the European Union, EU Member States must ensure that border control policies adhere to these standards. The more comprehensive 1951 Convention on the Status of Refugees no longer applies to them.
- Is this statement correct?
- Please justify your reply.
Key messages for question 1:
This statement is not completely correct: One can take different approaches, though all of them lead to the same reply: We can look at this question from the point of view of the so-called EU acquis. The EU acquis is the set of norms, standards and practices adopted by the EU as a whole.
International Conventions and other binding international and regional instruments are part of the EU acquis, as they are inseparable from the attainment of the objectives of the Treaty on European Union. In the asylum field, the 1951 Convention and the 1967 Protocol, as well as as the European Convention on Human Rights (ECHR) are, for the same reason, part of the EU asylum acquis.
The EU acquis on asylum contains instruments relevant for the development of asylum systems in candidate countries. Candidate countries to the European Union must accede to these instruments without reservations, in order to honour the international obligations to which Member States are – and future ones should be- committed.
From the perspective of the individual Member States of the EU: the 1951 Convention has been ratified by all Member States, so they are bound by the rules of the Convention, independently of their membership to the European Union.
If there is any rule of the Convention that the EU States would decide not to abide by, then the member states would have had to make a reservation to the Convention at the moment of ratifying it, (which some have done). They could also derogate from the application of some articles through the specific procedures established thereto. They may do so, for instance, in situations of national emergency.
However, there are some articles of the 1951 Convention which cannot be subject to a reservation nor derogated from under any circumstances, as any such derogation would go against the purpose and the spirit of the Convention itself. These articles include the principle of non refoulement and the refugee definition.
Sometimes EU Member States have to incorporate EU law into their national legislation (the legal term used is “transpose”) in order to implement it. This is the case of the Directives (on asylum procedures, reception conditions, qualification, etc). When transposing the directive into national legislation, States who are party to the 1951 Convention must make sure that they do so without de facto derogating from any of the rights set forth in this Convention.
To ensure this, however, most EU instruments on asylum and migration issues have incorporated a general savings clause with regard to the international protection obligations of the Member States.
Other instruments are directly applicable by the Member States. The Schengen Borders Code, for instance, must be directly implemented, as it has the form of a regulation, so it does not need to be transposed and border guards are to apply it directly in the discharge of their functions.
In such cases, most instruments include a general savings clause on to the need to apply them in accordance with the Member States international protection obligations and the principle of non refoulement. (In the case of the Schengen Borders Code, it is para. 20 of the declaratory part and art. 13).
To sum up, the 1951 Convention continues to be binding for all Member States that have ratified it. All EU instruments are to be applied in accordance with the obligations in the 1951 Convention.
A person who uses a fake passport to attempt to cross an EU external border can only request asylum when they are apprehended by border officials. The individual is denied entry into the Member States' borders and may face penalties for using false personal identification documents, as specified by national law.
- Is this statement correct or incorrect?
- Which international legal provisions are relevant in this context?
Key messages for question 2:
This question is much related to the previous one. This statement is incorrect– asylum seekers attempting to cross the border with false documents should be granted access to the asylum procedure and not penalized because of their illegal entry.
The Schengen Borders Code, (Art. 13), establishes that a third-country national who does not fulfil all the entry conditions laid down in Art. 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.
According to News Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognized as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter, a territory illegally.
The drafters of the Convention acknowledged that refugees may have justifiable reasons for using fraudulent documentation to travel abroad to seek asylum. UNHCR’s Executive Committee has dealt with this issue in a similar manner and has stated that their reasons for such actions are mainly based in their fear of persecution as such, or danger to their safety or freedom-.
Art. 31 of the 1951 Convention states: “The Contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, present themselves without delay to the authorities and show good cause for their illegal entry or presence”.
This is called the principle of non-penalization for illegal entry. It applies not only to recognized refugees but also to asylum-seekers pending determination of their status, as recognition of refugee status does not make an individual a refugee but declares him to be one.
The fact that an asylum seeker may only apply for asylum when spotted by the authorities using fraudulent documents at the border, should not negatively affect the possibility to apply for asylum, nor the analysis of the asylum claim as such.
The UNHCR Handbook underlines that the circumstances which lead asylum seekers to flee their country may also make them apprehensive about approaching persons in authority.
The reference to penalties appears to comprehend prosecution, fine and imprisonment. However, in some cases states may need to proceed to place the asylum seeker under administrative detention. There is a fine line between imprisonment and administrative detention. UNHCR has issued public guidelines to clarify what is considered to be non-discriminatory and lawful detention of asylum seekers. (The issues around the detention of asylum seekers will be dealt with in more depth later on in the workshop).
"A person who, because of a well-founded fear of persecution because of [his or her] race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his or her nationality and is unable, as a result of such fear, to seek refuge in that country, or who, in the absence of nationality and as a result of such events, is either unable or, as a result of such fear, is outside the country of his or her former habit.
- What element is missing in the following refugee definition?
- Why is it important?
- In which legal instruments can it be found?
Key messages for question 3:
The missing element is (in bold): “...or owing to such fear, unwilling to avail himself of the protection of that country”. The text has been excerpted from Art. 1 of the 1951 Convention. The EU Qualification Directive also incorporates this element in the refugee definition.
The term “unwilling” points to the subjective element of the fear of persecution. Asylum seekers do not need to have already suffered serious violations of their rights or suffered persecution in any other way to qualify for refugee status.
At border points, this element can be relevant where an asylum seeker requests entry into the territory of a specific country without fulfilling the migratory provisions for entry. One way they could have to express that they are requesting asylum may be by stating “I don’t want to return to my country because I am afraid that I may be harmed”.
Authorities in the country of origin may seem very open to have asylum seekers return to their country. However, an asylum seeker may still not be willing to return on grounds of that fear and the 1951 Convention recognizes this possibility.
By contrast, the term “unable to avail himself of the protection of that country” implies circumstances that are beyond the civil war or other grave disturbance. This may, for example, be a state of war or even the denial of protection.
The facilitator should take the opportunity to introduce the Handbook on Procedures and Criteria for Determining Refugee Status. The Handbook constitutes an accessible and official interpretation of each element of the definition. as an ExCom approved document.