History of Asylum and refugee law. Refugee Convention
Throughout the history of humanity due to armed conflicts, famine, political or religious grounds people sought refuge. Originally an obligation common across many religions, to provide food, shelter and safety to strangers in need, asylum was linked to a sanctity of a temple or a church which provided a sanctuary from manmade jurisdiction. With development and strengthening of the state sovereignty, the power to grant asylum transferred from religious entities to nation states. In early 20th century, following the atrocities of two world wars, hundreds of thousands of people displaced and seeking asylum, the right to asylum underwent revolutionary conceptual transformations. The granting of asylum began to be seen not as a discretionary state prerogative but as the states’ obligation. The asylum began to be recognized a human right rather than as a tool of a state. Hallmark of this historical shift was the adoption of the Universal Declaration of Human Rights (UDHR)[1]. The declaration, however, did not guarantee the right to receive asylum, but the right to apply for asylum.
In a further step to transform asylum law, the United Nations adopted Convention relating to the status of Refugees in 1951 (Refugee Convention)[2]. It is a fundamental legal instrument, which provides definition of refugees, their rights and freedoms and states obligations towards them.
This Refugee Convention did not address the right to asylum in the same way the UDHR, but it outlined the central principle of the Refugee Law — the principle of non-refoulement, found in Article 33, prohibiting the return of a person to a territory where they may face persecution. However, Article 33(2)[3] of the Refugee Convention recognises existence of certain cases in which an exception to the principle of non-refoulment can legitimately be made.
Unlike other human rights treaties The Refugee Convention does not have a corresponding committee. This Convention established an Office of the United Nations High Commissioner for Refugees (UNHCR), mandating it to monitor and supervise the compliance with the Convention’s provisions.
At the time of adoption, the application of the Refugee Convention was limited to Europe only and to refugees from events that took place before 1951. The 1967 Protocol[4] amended this limitation granting the Convention’s jurisdictional applicability everywhere in the world and also to refugees from events after 1951.
As of April 2015, there are 145 states parties to the 1951 Convention and 146 to the 1967 protocol[5]. However, many of the countries currently hosting the largest populations of refugees are not signatories to the Refugee Convention, for example, in the Middle East: Jordan, Lebanon and Pakistan – became temporary homes for Syrians, Iraqis, Yemenis and 52 other nationalities fleeing war, genocide and persecution, and in Asia-Pacific region India, Malaysia and Bangladesh hosting settlements of Rohingya Muslims, fleeing genocide in Myanmar.
Who is Who
Refugee
In accordance with the article I of the Convention relating to the status of Refugees, “the term “refugee” shall apply to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[6]
Asylum seeker
An asylum seeker is someone who applies for asylum – the right to be recognized as a refugee and receive legal protection and material assistance. An asylum seeker must demonstrate that his or her fear of persecution in his or her home country is well-founded.[7]
Migrant
Although there is no strict formal legal definition for who migrants are, a migrant, in general terms, is someone who leaves his or her country of residence regardless of the reasons for migration. Migrant workers, however, are a different category of migrants, whose rights are protected under International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families[8].
Politics
In recent years Europe and the United States of America have been struggling with the distinction between the refugees and economic migrants.[9] Domestic politics is also playing a role as far right and anti-immigrant views gain ground across much of Europe and the USA. The language used by some governments and politicians to refer to asylum-seekers has also been shifting in recent months. Very often refugees seeking asylum are called “illegal migrants” as rejections of asylum applications soar not only at borders, but also for those already within territories of safe countries, not only in Europe, but also in Asia. More than 1 million Rohingya fled from brutal crackdown in Myanmar. They are unwelcome and rejected by the neighboring countries[10], requesting UNHCR, the UN Refugee Agency to resettle them in third country.
Eurostat[11], the statistical office of the European Union situated in Luxembourg shows that in 2015 and 2016 there were approximately 1.2 mln asylum applicants and around 600 thousand annually in the following years[12]. Situation remains dire, especially in front-line countries, at the EU’s external borders — such as Bulgaria, Greece, Hungary, Italy, Malta and Spain. Nils Raymond Muiznieks, the Commissioner for Human Rights of the Council of Europe in Strasbourg wrote about the inadequacy, the haphazard, botched response of the EU states to refugee situation and need for improvement of the existing system in 2015.[13]
The Council of Europe has also published a statement saying:
“There are alarming trends in the treatment of asylum seekers and refugees… asylum seekers, who do manage to enter Council of Europe member states are often criminalized, locked up in prison-like conditions, and expelled as quickly as possible – even to countries where they risk persecution and torture”.[14]
Unfortunately, little has changed. Behind each number is a person, a life, a tragedy, desperation and hope, which often shatters against a thick wall of indifference of bureaucrats trying to serve the anti-immigrant agenda of politicians.
Asylum Process. EU and Austria
Formal asylum procedure is clearly defined. As described by the UNHCR on their web-site: “Applications for international protection (asylum applications) have to be done directly at the police station or with a police officer. Following the application, a refugee will be brought to a specialized police department where the so-called “initial interview” will take place. The police will question the refugee on his/her identity, the fleeing route and – very briefly – the reasons.”[15]
Once the refugee is registered within the system, the police department forwards all data to the Federal Office for Immigration and Asylum (in Austria BFA). The BFA will then decide whether it has jurisdiction over the asylum case or if the case must be reviewed by another European country based on the Dublin Treaty. After several years of waiting, refugees face a second, long interview with the asylum authorities. In this interview the refugee must explain what was the reason to flee the country of origin. Many cases lead to rejection which can be appealed in the Administrative court (BVwG). If the refugee is not satisfied with the BVwG there is an option of the European Court of Human Rights.
Sounds like plenty of mechanisms to fight for international protection. However, according to opinion of refugee support groups in Austria, even refugees from Syria, Afghanistan, Iraq and some parts of Africa increasingly face deportation back to the humanitarian crisis zones.
The refugees seeking asylum due to personal threats and persecution in their home countries due to their political views, activism, journalism or human rights work face even more complications.
Austria seems to be one of the countries influenced by the anti-refugee rhetoric.[16] Austria’s government is keeping up its hard-line stance on immigration. It is continuing its policy of deporting well-integrated asylum-seekers.[17]
The practice of formal review of politically persecuted refugee’s applications where authorities simply do not believe and ignore the threats seems to have been established. Even with respect to persons with special needs and disabilities, or with terminal illnesses and victims of torture, no exceptions seem to be made. Letters of human rights defenders in support of refugees are rarely taken into account by migration authorities and courts.
Austria also actively conducts forced deportations to countries where the practice of torture is systematic and there are no conditions for justice, and even the conclusions and recommendations of the UN executive committees, including the UN Committee on Torture, are simply ignored. On June 16, 2020 European Council on Refugees and Exiles issued a statement: “Afghan nationals were the second biggest group to seek international protection in Europe in 2019. They face the largest discrepancy in recognition rates in Europe, with the rate varying from 0% in Croatia to 96% in Switzerland, with no apparent reason for the divergence such as the nature of the cases. This persisting divergence and the risk of human rights violations that result from it have prompted an increasing number of courts to suspend Dublin transfers of asylum seekers to countries where they would be at risk of onward deportation. In 2018, for example, domestic courts – mainly in France – ruled against transfers of Afghan asylum seekers to Germany, Austria, Belgium, Sweden, Finland and Norway.”[18]
Courts and asylum authorities of the EU countries rely on information from prosecution authorities of countries where the traditions of the communist KGB are still preserved in the government, and the practice of corruption remains almost legal, as an example: Tajikistan, Uzbekistan, Kyrgyzstan, Kazakhstan, Turkmenistan.
- There are clear signs of systemic discrimination against foreigners not only in Austria, but also in other EU countries, where the number of illegal refugees and people with false passports is increasing;
- Radicalization among refugees is increasing, even with the use of cybercrime;
- The illegal trade in arms and drugs is increasing among refugees, which poses a threat to security;
- Trafficking in persons and the “black labor market” is also a common reality;
- The number of violators of the Dublin Convention is growing, because many refugees are simply quietly extradited to Uzbekistan, Tajikistan, Kyrgyzstan and other Central Asian countries, there are especially many cases of forced return to dictatorial countries from Eastern Europe;
- I know hundreds of Uzbeks who were born at home because their parents were put on the international wanted list in violation of Articles 2 and 3 of the Interpol Charter. Hundreds of such people have been marginalized, living for almost 30 years without a passport, with no access to education and can only read Koran. True that such refugees mainly live in Turkey, Iran, Pakistan, Egypt and African countries. This is a ready material for terrorist organizations, such as ISIS.
Two of the worst dictatorships in Central Asia, Uzbekistan and Turkmenistan have not ratified the UN Convention on the Status of Refugees. The other three, Kazakhstan, Kyrgyzstan and Tajikistan, regularly participate in extraterritorial abductions and killings. All Central Asian countries are also burdened with obligations under the Shanghai Cooperation Organization and CIS conventions, and the practice of cooperation between the security services (KGB’s) of these countries allows them to transfer citizens to each other, even if the persecuted individual has applied for refugee status.
The role of human rights defenders in these countries is ineffective, as all of them are constantly under threat. Under such circumstances an actual opponent of the regimes of any of the Central Asian countries can not feel safe in a neighboring country, as well as in Russia and other CIS countries. The situation of refugees in Ukraine and Georgia is just starting to change, but in these countries, there is no effective protection against extraterritorial crimes and, of course, social protection is still weak.
Europe and the United States still remain the most reliable safe haven for opponents of the communist dictatorship
Some European officials expressed an opinion that refugees from Central Asia can apply for refugee status in neighboring countries, meaning Uzbek citizens can apply for refugee status in Kyrgyzstan, Kazakhstan or Tajikistan and vice-versa. There is an example that demonstrates why it is not effective.
In 2010, Kazakhstan accepted more than 800 cases of refugees from the UNHCR office in Almaty, and sensitive and privileged information of refugees, containing the reasons for their application for international protection was simply transferred to state authorities.
The consequences were horrendous. At first, all these refugees were no longer allowed to have their temporary residency on the basis of seeking refugee status prolonged, and so they were in violation of the rules of residence in Kazakhstan which allowed Kazakhstan’s migration police officials to issue orders to deport them to their country of origin, migration raids were launched to catch illegal aliens, including refugees.
And all those who were placed on wanted lists by their countries were arrested and mass extraditions began. Fifty of the cases of extraditions to Uzbekistan were recorded and monitored by an NGO “Association for Human Rights in Central Asia”. They have all been tortured and some are still in detention. Such treatment will hardly make these people to continue believing in the principles of justice. Not many of them will now trust human rights defenders if the UNHCR simply threw them into the jaws of the dictator Islam Karimov. This action had other far-reaching consequences. Based on the testimonies of the people extradited from Kazakhstan, the National Security Council of Uzbekistan (Uzbek KGB) made an unspoken decision to assassinate the reputable Central Asian religious leader Obidhon Kori Nazarov, who lives in exile in Sweden.
He survived an assassination attempt in 2012 and was in a coma for five years. So far, he has not been able to regain health. The killer was arrested and sentenced to life imprisonment in Sweden. However, such sacrifices could have been avoided if the UN and Western diplomats had not cast this situation aside.
In the last three years the human rights defenders are apprehensive to take refugee cases, because every fifth applicant for refugee status admits participating in battles in Donbas, in Syria, in Afghanistan, etc. The human rights defenders do not idealize those who apply for help. The Association for Human Rights in Central Asia[19] database contains more than 2 thousand cases of refugees from Central Asian countries, and almost all of them were exiled for criticism or ambitions to become leaders in their countries. 30 years past the collapse of USSR the manifestation of individualism and independence is suppressed in every possible way the countries of Central Asia.
It is true that refugees from authoritarian countries do not always follow the legal procedure for obtaining status, they often illegally cross the borders of countries or are unable to explain their situation for various reasons, but when countries like Austria give no chance to save the victims of the dictatorship and corruption, it deserves a legal assessment and public debate.
“Unglaubwürdig”
Case of Tajik citizen Khizbulloi Shovalizoda.
Case in point demonstrate the consequences of the bureaucratic indifference, which poses a mortal danger when even lawyers and human rights defenders are powerless to help those who rightly need international protection and should have the right to integrate in a democratic environment.
A young man, 29 years old, has been deprived of a chance to be saved.[20] The Tajik authorities have unfoundedly accused him of involvement in terrorism and extremism, because they believe that he is a member of the Islamic Revival Party of Tajikistan — this party was declared terrorist and banned by Tajikistan authorities, a step condemned by international and UN experts and international human rights organizations (ECOSOC members).
This young man was an active critic of the Tajik regime and a supporter of Tajik opposition community in the West.
In 2018 Tajik authorities issued an Interpol Red Notice against Shovalizoda on charges of “High Treason” and “Extremism” – classical scenario of political persecution. The BFA eagerly used this and issued a decision rejecting his asylum application because “Shovalizoda is a criminal and a danger to public order in Austria”. Although in 2019 a Prosecutor in Eisenstadt conducted a through investigation into allegations against Shovalizoda and issued a conclusion that he in fact was not involved in terrorism or extremism but was merely a critic and a supporter of Tajik opposition groups in exile. Austrian authorities and court relied heavily on the information provided by punitive system of Tajikistan. The administrative court decision contains baseless accusations against Shovalizoda of crimes against humanity. Shovalizoda has done nothing wrong, except supporting opposition IRPT party and criticizing the regime of the Tajik dictator Rakhmon on social media.
Although the prosecution found him not involved in any extremist or terrorist activity, and therefore denied extradition based on the Interpol search warrant, the court came to a conclusion that it doesn’t find the threat against Shovalizoda believable and doesn’t believe that Shovalizoda is in fact who he says he is and therefore is not the person who is placed in the Interpol search.
Shovalizoda was deported to Tajikistan on 5 of March 2020. The Tajik authorities however, had no doubts about Shovalizoda’s identity. Tajik Prosecutor General issued a press statement on their official website, praising Austrian authorities for cooperation and thanking for extradition (which in fact was a deportation) of Shovalizoda [21].
On 12 of June 2020 Shovalizoda was sentenced to 20 years on charges of extremism – the membership of the banned Islamic Renaissance Party of Tajikistan (IRPT), participating in an attempt to overthrow the government by force [22] and treason.
Austria, a democratic country, knowingly or not, played into the hands and collaborated with the criminal regime of Emomali Rahmon and failed to conscientiously consider Shovalizoda’s appeals.
Recent publications from media, such as Der Standard, state that as much as 45% of decisions in cases appealing the BFA decisions have been overturned by the higher court in Austria finding the BFA conclusions wrong. Such a high percentage is an indicator that it is not a mistake but rather an adopted systemic practice when de-jure everything looks perfect, but de-facto the practice violates human rights and obligations prescribed by treaties.
The European commission stated that:
Asylum must not be a lottery. EU Member States have a shared responsibility to welcome asylum seekers in a dignified manner, ensuring they are treated fairly and that their case is examined to uniform standards so that, no matter where an applicant applies, the outcome will be similar.[23]
Unfortunately, as can be seen from the described case, European countries have yet to live up to the stated principals.
[1] https://www.un.org/en/universal-declaration-human-rights/
[2] https://www.unhcr.org/3b66c2aa10.html
[3] https://www.unhcr.org/excom/scip/3ae68ccd10/note-non-refoulement-submitted-high-commissioner.html
[4] https://www.unhcr.org/pages/49da0e466.html
[5] https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf
[6] https://www.unhcr.org/3b66c2aa10.html
[7] https://www.unrefugees.org/refugee-facts/what-is-a-refugee/
[8] https://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx
[9] https://www.nbcnews.com/news/world/europe-grapples-distinction-between-refugees-economic-migrants-n965161
[10] https://www.aljazeera.com/news/2020/06/unwanted-bangladesh-malaysia-reject-rescued-rohingya-refugees-200610004345553.html
[11] https://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics
[12] https://migration.iom.int/europe?type=arrivals
[13] http://www.tagesschau.de/dublin-eu-103.html
[14] https://www.coe.int/en/web/commissioner/thematic-work/migration/-/asset_publisher/YeRfEkCWz64T/content/ensuring-the-rights-of-migrants-in-the-eu-from-vulnerability-to-empowerment-address-by-nils-muiznieks-council-of-europe-commissioner-for-human-rights-?inheritRedirect=true
[15] https://help.unhcr.org/austria/asylum-in-austria/the-asylum-procedure/
[16] https://www.telegraph.co.uk/news/2017/12/18/austrian-far-right-sworn-government-amid-protests/
[17] https://www.dw.com/en/austria-persists-with-relentless-hard-line-on-asylum-seekers/a‑53232600
[18] https://www.ecre.org/policy-note-no-reasons-to-returns-to-afghanistan-translated-to-dari/
[20] https://www.rferl.org/a/austria-extradites-tajik-asylum-seeker-ignoring-activists-warnings/30472355.html
[21] http://prokuratura.tj/news-tj/1091-alasai-ayati-mushovara-dar-prokuraturai-general-357.html
[22] Tajik Opposition Activist Extradited From Austria Jailed 20 Years For Extremism https://www.rferl.org/a/tajik-opposition-activist-extradited-from-austria-jailed-20-years-for-extremism/30667696.html
[23] https://ec.europa.eu/home-affairs/what-we-do/policies/asylum_en