Asylum is protection given by a country to someone fleeing from persecution in their own country. According to Article 1 of the 1951 United Nations Convention and Protocol Relating to the Status of Refugees, a refugee is a person who:
… owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country;
An asylum seeker is someone who has applied for asylum and is awaiting a decision on whether they will be granted refugee status. An asylum applicant who does not qualify for refugee status may still be granted leave to remain for humanitarian or other reasons. An asylum seeker whose application is refused at initial decision may appeal the decision through an appeals process. Asylum applicants initially refused refugee status may be granted leave to remain following an appeal.
The 1951 Refugee Convention guarantees everybody the right to apply for asylum. It has saved millions of lives. No country has ever withdrawn from it.
There is nothing in international law to say that refugees must claim asylum in the first country they reach. A European regulation allows a country to return an adult asylum seeker to the first European country they reached. This means that countries on the edge of Europe have responsibility for a lot more asylum seekers than others. Some of the countries through which people travel to get to Europe are unsafe for some. Many have not signed the Refugee Convention, meaning that people who remain there will not get international protection and be able to rebuild their lives.
TYPES OF ASYLUM AND PROTECTION
Asylum as an institution is not restricted to the category of individuals who qualify for refugee status. Rather on the contrary, this institution predates the birth of the international regime for the protection of refugees.
Convention refugee status
As of 1 July 2013, there were 145 parties to the 1951 Refugee Convention and 146 to the 1967 Protocol. These states are bound by an obligation under international law to grant asylum to people who fall within the definition of Convention and Protocol. The refugee definitions of 1951 and 1967 are the strictest and most exclusive and persons who fall within this definition are called Convention refugees and their status is called Convention refugee status. Persons who do not fall within this definition may still be granted complementary forms of protection, if they fall within other refugee definitions.
The practical determination of whether a person is a refugee or not is most often left to certain government agencies within the host country. In some countries the refugee status determination (RSD) is done by the UNHCR. The burden of substantiating an asylum claim lies with the claimant, who must establish that they qualify for protection.
In many countries, Country of Origin information is used by migration officials as part of the assessment of asylum claims, and governments commission research into the accuracy of their country reports. Some countries have studied the rejection rates of their migration officials making decisions, finding that individuals reject more applicants than others assessing similar cases - and migration officials are required to standardise the reasons for accepting or rejecting claims, so that the decision of one adjudicator is consistent with what their colleagues decide.
Complementary forms of protection
The refugee definition of the 1951 Convention is universally binding, but there are many other definitions according to which protection may be offered to people who do not fall within this definition.
Subsidiary protection status
Subsidiary protection is an international protection for persons seeking asylum, but do not qualify as refugees. It is an option to get asylum for those who do not have a well founded fear of persecution (which is required for refugee status according to the 1951 Convention), but do indeed have a substantial risk to be subjected to torture or to a serious harm if they are returned to their country of origin, for reasons that include war, violence, conflict and massive violations of human rights. The Universal Declaration of Human Rights and European Union law have a broader definition of who is entitled to asylum.
Temporary protection visa
Temporary protection visas are used to persons in Australia who applied for refugee status after making an unauthorised arrival. It is the main type of visa issued to refugees when released from Australian immigration detention facilities and they are required to reapply for it every three years.
International law that can be used to support an asylum application:
1. 1951 Geneva Convention Relating to the Status of Refugees
2. 1950 European Convention on Human Rights (ECHR)
3. European Union Asylum Qualification Directive
IMAGE CREDIT: Wikimedia Commons / Photo by Ggia. [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)]