January 2012

Attorney Yonatan BermanCLB

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When are the Refugee Convention Rights Applicable? Recognition of a person as a refugee by a state is

declaratory, not constitutive. Art. 1.A: “For the purposes of the present Convention, the

term ‘refugee’ shall apply to any person who ...” UNHCR, Handbook on Procedures and Criteria for

Determining Refugee Status, para 28:“A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee.”

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Time of applicability of Convention RightsLevels of Attachment

1. Subject to a state’s jurisdiction: eg invasion and control; exercise of de facto control in territory over which it has no valid claim to jurisdiction (eg high seas).

2. Physical presence: includes eg not only refugees within a state’s land territory, but also those on its inland waterways or territorial sea; also those at a border post or in a so-called “international zone” of an airport.

3. Lawful presence: includes eg refugees temporarily admitted to a state party, undergoing status verification, or present in a state which has elected either not to establish or to suspend refugee status verification.

4. Lawfully stay: officially sanctioned, ongoing presence, whether or not there has been a formal declaration of refuge status, grant of the right of permanent residence, or establishment of domicile. Includes eg refugees in receipt of “temporary protection” where de facto settled.

5. Durable residence

Refugee Rights – Levels of Attachment

1. Subject to a State’s jurisdiction A small number of core rights are defined to apply with no qualification based upon level of attachment. While as a practical matter these rights will in most cases accrue to a refugee simultaneously with those that apply once the refugee arrives at a State party’s territory, there are some circumstances in which a refugee will be under the control and authority of a State party even though he or she is not physically present in, or at the border of, its territory: Article 3 - Non-discrimination Article 13 - Moveable and immoveable property Article 16(1) - Access to courts Article 20 - Rationing Article 22 - Education Article 29 - Fiscal charges Article 33 - Prohibition of expulsion or return -

refoulement

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Refugee Rights – Levels of Attachment

1. Subject to a State’s jurisdiction

Example:

Art. 16(1) – Access to Courts:

“A refugee shall have free access to the courts of law on the territory of all Contracting States.”

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Refugee Rights – Levels of Attachment

2. Physical presence

Several additional rights accrue to all refugees who are simply “in” or “within” a contracting State’s territory. Any refugee physically present, lawfully or unlawfully, in territory under a State’s jurisdiction may invoke these rights: Article 4 - Religion Article 27 - Identity papers Article 31(1) - Non-penalisation for illegal entry or

presence Article 31(2) - Movements of refugees unlawfully

in the country of refuge

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Refugee Rights – Levels of Attachment

2. Physical presence

Example:

Art. 27 – Identity Documents:

“The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.”

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Refugee Rights – Levels of Attachment

3. Lawful presence

Refugees who are not simply physically present, but who are also lawfully in the territory of a State party, are further entitled to claim the rights that apply at the third level of attachment:

Article 18 - Self-employment Article 26 - Freedom of movement Article 32 - Expulsion

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Refugee Rights – Levels of Attachment

3. Lawful presence

Example:

Art. 26 – Freedom of Movement:

“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.”

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Refugee Rights – Levels of Attachment

4. Lawful stay

Those refugees who are not simply lawfully in a country’s territory, but who are lawfully staying there, benefit from additional rights:

Article 14 - Artistic and industrial property Article 15 - Right of association Article 17 - Wage-earning employment Article 19 - Liberal professions Article 21 - Housing Article 23 - Public relief Article 24 - Labour legislation and social

security Article 28 - Travel documents

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Refugee Rights – Levels of Attachment

4. Lawful stay

Example:

Art. 23 – Public relief:

“The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”

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Refugee Rights – Levels of Attachment

5. Durable Residence

Only a few rights are reserved for refugees who are habitually resident in an asylum state: In addition to rights defined by the first four levels of attachment, such refugees are entitled to benefit from legal aid systems, and receive national treatment in regard to the posting of security for costs in court proceedings. After a period of three years’ residence, refugees are also to be exempted from both requirements of legislative reciprocity, and any restrictive measures imposed on the employment of aliens: Article 16(2) Article 7(2) Article 17(2)

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Refugee Rights – Absolute and Contingent Rights

ABSOLUTE:

Administrative assistance; identity papers; travel documents; recognition of pre-existing personal status rights; exemption from reciprocity and exceptional measures; protection from refoulement; freedom from penalization for illegal entry; and rights of solution. Freedom from discrimination (between and among refugees); access to courts.

NATIONAL TREATMENT:

Religious freedom; artistic and industrial property rights; rationing schemes; primary education; public welfare; to benefit from labour and social security legislation; tax liability.

MOST FAVOURED FOREIGNERS:

Freedom of non-political association; wage-earning employment.

ALIENS GENERALLY:

Property; internal movement; public housing; self-employment; professional employment; residual clause.

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Non- RefoulementArticle 33. - Prohibition of expulsion or return ("refoulement")

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

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Non-refoulement – Who is bound?“Contracting States” All States party to the 1951 Convention and/or the 1967

Protocol All organs of the state and provincial authorities All bodies exercising governmental authority Organs placed by the disposal of a State by another State Persons acting under the instructions or under the

direction or control of the State Acts not otherwise attributable to the State, but

nonetheless acknowledged and adopted by the State as its own

Articles on State Responsibility adopted by the International Law Commission (ILC) of the UN, 31 May 2001

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Non-refoulement – Is responsibility limited to State territory?

“Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action -whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.”

Loizidou v. Turkey, 40/1993/435/514 [1995], European Court of Human Rights

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Non-refoulement – Is responsibility limited to State territory?

Sale v. Haitian Centers Council, 509 U.S. 155 (1993), US Supreme Court:

“The President has directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they may qualify as refugees. …We hold that neither §243(h) nor Article 33 of the United Nations Protocol Relating to the Status of Refugees applies to action taken by the Coast Guard on the high seas.”

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Non-refoulement – Applicability at the Border

Executive Committee (ExCom) Conclusion no. 6 (1977):

“The Executive Committee … [r]effirms the fundamental importance of the observance of the principle of non-refoulement both at the border and within the territory of a State of persons who may be subjected to persecution if returned to their country of origin ...”

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Non-refoulement – Applicability prior to formal state recognitionExecutive Committee (ExCom) Conclusion no. 79 (1996) & no. 81 (1997):

“The Executive Committee … [r]eaffirms the fundamental importance of the principle of non-refoulement, which prohibits expulsion and return of refugees, in any manner whatsoever… whether or not they have formally been granted refugee status …”

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Non-refoulement – Need for Individual Assessment in each Case

Executive Committee (ExCom) Conclusion no. 30 (1983):

“[A]s in the case of all requests for the determination of refugee status or the grant of asylum, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status .”

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Non-refoulement – Applicability in Cases of Mass Influx

Executive Committee (ExCom) Conclusion no. 22 (1981):

“3… II. Measures of protection A. Admission and non-refoulement

1. In situations of large-scale influx, asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity. 2. In all cases the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed.

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Non-refoulement – The place to which refoulement is prohibited “Territories” not “States”

Art. 31(1): “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories ….”

Third Countries

T.I. v. United Kingdom, Appl. No. 43844/98 (2000):“The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention.”

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Non-refoulement – Third CountriesHCJ 4702/94 El-Taii v. Minister of Interior , Israeli Supreme Court:

“Prior to deportation to a third country, in which the life or liberty of a person would not be deprived, the Israeli authorities must ensure that the third country will not subsequently deport that person to his country of origin, where he faces such risk.”

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Non-refoulement – ExceptionsArticle 33(2):

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

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