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 20^th 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.

1. 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.

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[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/

[19] https://ahrca.eu/

[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