It is enshrined in law that everybody has the right to seek asylum in other countries for protection from persecution in your home country.
Chances for recognition as refugee vary from country to country, depending on factors such as what happened to the individual in their country of origin and what will happen to them if they return there, whether there are alternatives to an asylum procedure such as humanitarian protection, and the decision practice of each country of asylum on applications from a certain country of origin.
You might have good reasons to think you are a refugee. But be aware of the high risk that your country of asylum may disagree with you. Even amongst states of the same region, there is little consensus on who should be regarded as a refugee.
What does refugee mean?
The official definition of a refugee given by the Geneva Convention is only a starting point for a large range of questions. According to the Geneva Convention, a refugee is defined as a 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”.
This definition gives the impression that the fear of the applicant is decisive for determining a refugee.
But most of the asylum states apply objective criteria: the applicant has to be in danger in the case of return if he wants to qualify for the refugee status.
Is a refugee different to an asylum seeker?
Yes, there is a fundamental difference in the terms ‘refugee’ and ‘asylum seeker’. An asylum seeker is a person who has left their home country because of persecution on the grounds of religion, race, nationality or some other factor, from which they seek protection and shelter, and who has applied for, but not yet been granted, the status of refugee.
A refugee has been granted status and permission to remain lawfully in the country of refuge.
Differences in recognition between states
There is consensus amongst the asylum states that a danger for life, physical and psychical integrity or the danger of unlawful imprisonment can amount to persecution. But other dangers could include:
- Religious freedom: Some states say that a violation of this right qualifies the applicant for asylum. Others like Germany tend to say that this is only the case when religious activity at home is forbidden. The prohibition of public religious gatherings is not sufficient to get asylum.
- The right to assemble: In some states, the violation of this right as such is not sufficient.
- The right to express one’s opinion: In some states, the violation of this right as such is not sufficient.
- The right to marry and to have children: In some states, the violation of this right as such is not sufficient.
- The right to live one’s (homo-) sexuality: More and more asylum states protect people who cannot live their (homo-) sexuality at home.
- Property rights: Some states say that the violation of property rights is not sufficient unless somebody loses its means for survival.
- The right to object the military service for reasons of personal consciousness: Only a few asylum states protect people who object the military service.
Another question is: Is the asylum seeker in danger because they belong to a certain social, religious, national, ethnical or political group or because they have a certain political, religious or philosophical belief? Again, the case law on asylum states varies considerably. For example, there is no common view on whether women are a ‘social group’.
Likelihood of being granted refugee status
The next divergence relates to the degree of likelihood of the danger requested for refugee recognition.
Some countries say that the danger has to be “concrete” in order to qualify the applicant as refugee, without explaining what this means. Others try to describe the requested likelihood in a different way. Whereas in some countries the mere possibility of a violation is sufficient, others request that it is “quite likely.”
Some states request that the applicant must have been targeted, meaning people who became civil war victims by accident cannot get refugee status in some asylum states. But there seems to be a consensus that if one of the conflicting civil war parties tries to persecute the whole opposite ethnical group, this is persecution.
Persecution by non-state agents is recognised in some asylum states, in some others only under certain restrictive conditions. The same thing is true for areas where there is no state any more.
More and more asylum states say that an internal flight alternative hinders the recognition as refugee. An internal flight alternative is assumed when the refugee could safely live in another part of their country, where the nation is so big and diverse with respect to its authorities that one might assume that nationals could settle down in another part of the huge country to avoid local persecution.
Most of the asylum states say that no asylum can be given when the applicant was safe in a third country. But what does this mean? Do they need a residence permit to be safe there? Is it sufficient to be tolerated? Does the transit through a certain country indicate that somebody was safe there? There is no consensus, but the utmost variety of interpretations.
Many asylum countries have procedural exclusion clauses. The variety is vast. Some examples include missed application delays may set an end to the procedure at its very beginning; a hidden identity or the use of falsified documents hinder sometimes the recognition as refugee; and the same might be the case if somebody does not co-operate in indicating the way he took before getting into the asylum country.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
