• Posted on October 26, 2023
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Assignment Sample on Asylum Procedures Directive

Introduction

Law is the most essential part in operating a country successfully. A society’s law is critical because it acts as a standard of conduct for inhabitants. This was created to give states a structure for all people’ behaviour and attitude, as well as to maintain the administration’s branch balance. Adding to this, it ensures the smooth operation of societal structure. In this context, the following essay will also talk about asylum laws such as 1951 Geneva Convention and European Convention on human rights and charter of fundamental rights.

Citizens and communities escaping persecution have been granted shelter by authorities for generations; however, the existing immigration legislation is essentially a development of the later decades of the twentieth century. Modern refugee law, including international humanitarian law, seems to have its roots after the wake of World War II along with the interwar waves of refugees. Refugee protection and human rights law are directly linked; immigrants leave regimes which are either reluctant in consideration to their fundamental human rights. In this relation, the fear of discrimination or a damage to any individuals existence or welfare because of a military conflict, refugee legislation connects with international human rights law.

Discussion

Brief overview of 1951 Geneva Convention

On 28th of July, the United Nations declaration on the rights of immigrants, widely known as “The 1951 Refugee Convention,” was officially approved. The pact, known as the “centrepiece of international refugee protection,” laws protecting national recruits to identify and safeguard refugees seeking asylum due to violence in their countries of origin (Asylum Access, 2021). Although the Convention seems to be not the only global protection for the international refugee framework, nevertheless it did set a significant social and political foundation in the massive response to immigrants. It also continues to thrive as a point of comparison for international protection and sustainable relationships. The 1951 Geneva Convention was perhaps the most thorough declaration of internally displaced persons on a global scale. Private organisations, such as the Red Cross, were just the primary players in refugee assistance antecedent to the 1951 Refugee Convention, providing informal emergency assistance (Asylum Access, 2021).

The League of Nations recognized and safeguarded a legal position for emigrants after 1921, although it was constrained to certain immigrant groups. Following World War II, the 1951 Geneva Conventions was established, which was the first constitutionally acknowledged refugees in the location based on their migratory status instead of their native land (Carton, 2018). Nonetheless, the jurisdiction of the treaty was first reserved to refugees escaping persecution in Europe. In this respect, four elements have been identified in respect to this convention: that the refugee needs to be outside of the country and they should not take any sort of benefits from their native country. Adding to this, inability, or unwillingness is attributed to the fear of being ill-treated and the persecution based on the religion, race, political option and members of social groups (Benhabib, 2020)

Since 1951, the 1951 Geneva Convention has evolved to regulate the overwhelming bulk of the world’s humanitarian rights system. The 1967 agreement removed the convention’s geographical limitation that has significantly allowed the treaty to be applicable to the other regions. Whereas only 26 states signed the initial agreement, it has subsequently been recognized by 145 jurisdictions, indicating that they will fully support it and plan to follow its regulations (Asylum Access, 2021). The 1951 Refugee Convention, which began as a provisional territorial accord, has evolved into a permanent worldwide agency. The 1951 Geneva Convention established a new classification of safeguarded individuals and established what that really meant to protect the human civil rights for migrants.

The 1951 Refugee Convention significantly contributed to international legal system on displaced persons, notably establishing a single worldwide meaning of the concept “refugee” and establishing the key principles such as non-penalization, non-discrimination and non-refoulement (Krause, 2021). A migrant is someone who is incapable of returning to their home country due to fear of victimisation for considerations of colour, faith and beliefs, language, participation of a specific social group, or any other political viewpoint. The agreement also states that no sovereign can deport or transfer a refugee to a country where their existence or independence is jeopardised. The 1951 Geneva Convention holds signatories accountable to its standards and principles, and several individual states, including the United States, have incorporated all or elements of the protocol into respective nationwide asylum seeker policy (Şimşek, 2020).

The 1951 Refugee Convention has an impact that extends far beyond the legislature’s authorised signatories. The concept of non-refoulement, for instance, belongs to all refugees at all circumstances, regardless of migratory position, and is backed up by several humanitarian laws (Garlick, 2016). Furthermore, even though nearly a quarter of the states of the UN really have not joined the 1951 Geneva Convention (GC). However, numerous governments are nonetheless persuaded by the rules and regulation and are willing to interact strategically with UNHCR as well as the convention’s superdelegates (Asylum Access, 2021). Therefore, the non-party governments are constrained to acknowledge immigrant entitlements and adhere to the convention’s basic components. The convention, in fact, had come up with several instructions, which are still applicable practically everywhere throughout the world today.

By the year 1951, many things had changed, and different migration settings necessitated alternative ideas to international refugees. There are a multitude of reasons to reconsider and broaden on the existing agreement (Krause, 2021). In this context, the convention’s concept of “refugee” excludes a rising subset of the population who have been relocated, such as those relocated as caused by nutritional instability, climate change or non-state aggression. Furthermore, the contract also lacked cohesion for long-term resettlement, which is becoming an increasingly regular phenomenon. Over the previous several centuries, the 1951 Geneva Convention has acted as a vital steppingstone for several governments. However, considerably more must be conducted to improve that refugees who have been pushed to flee from their homes can truly reconstruct their existence (Benhabib, 2020). Moreover, a brief description of the ECHR and CFREU will be illustrated in the next subsequent paragraph.

Overview of European Convention on Human rights and charter of fundamental rights

In accordance with the perception of the European Convention on Human Rights (ECHR), no individual may be put through to torture or punishment or evil treatment. This is recognised as the first council of Europe convention that has subsequently included the cornerstone of entire activities. This treaty was adopted during 1950 which was made applicable in 1953 (COE, 2021). The ECHR is responsible for efficiently serving the implementation of the convention across 47 Councils of Europe member states. According to this treaty, individuals are allowed to complaint regarding human rights violations to the Strasbourg court (COE, 2021).

Different articles can be notified as per this treaty with regards to clarify the obligation to respect human rights along with signifying the basic rights of an individual. These basic rights highlight right to existance and outlawing of torture, right to a fair trial,  provision of slavery and slave trade, right to liberty and security, and others (ECHR, 2021). Along with this, several additional consequences can also be reflected in this case including the freedom of thinking, family life, right to respect for the private and others. Strict prohibition is also applicable regarding the abuse of rights as highlighted within 18 articles clarified within the Convention.

Apart from that, different other elements can also be notified within this treaty concerning the ECHR. These aspects have highlighted significant understanding regarding the legal infrastructure of the European courts. The consequences of single charge formation and committees, consideration of plenary court, and others can be reflected. For evidence, it can be highlighted that article 32 under this treaty has been disclosing authority of the court whereas article 36 highlights third party intervention (ECHR, 2021). The overall aspect has been adding a significant value to clarify human rights attributes within the European continent that is efficiently combined with the legal framework.

European Union charter of fundamental rights (CFREU)

The authority of fundamental rights has been looking forward to consider the entire fundamental rights of an individual living within the European Union. The prime concern of introducing this treaty was to ensure distinctive consistency and clarity in terms of maintaining established human rights across entire individual European Union member states. The consent of fundamental rights was proclaimed by the EU during 2000 under the shape of a non-binding declaration. Article 18 of this charter highlights article 19 and right to Asylum reflects the principle of non-refoulement. This charter was made applicable across the EU member states with the rightful start of application concerning the Treaty of Lisbon that came into being during December 2009 (Equality Human Rights, 2021).

A variety of different human rights included in this charter were eventually associated with the previously established European Union treaties, non-statutory law of the court of justice of the EU, National constitutions, and others. This chapter has obtained similar legal power as compared with a European Union treaty. It reflects the superiority of this treaty for being applied in the Irish body during the implementation of the EU law. The overall conventions are segmented into different aspects such as dignity and freedom, equality and solidarity, justice and citizen rights and others (Citizens Information, 2021).

Different elements can be notified as per European Union consent of fundamental rights that have eventually enlightened the complete range of political and civil, economic, and social rights of people. The most significant concern, in this case, reflects the recognition provided by the European convention on civil rights to signify fundamental rights and freedoms. Moreover, the constitutional framework of respective European Union member states are highly signified as per this treaty along with considering long-standing protection of rights (Equality Human Rights, 2021). The community authority of fundamental social rights of workers is also associated with this charter. Other respective additional international conventions interrelated with the EU and its relational states members are also included in this case.

The agency for fundamental rights in the EU (FRA) is responsible for delivering independent advice to respective European Union institutions and their member states regarding the rights as established within the charter. Moreover, this agency is eventually engaged to signify valuable legal and social science research as a subsequent parameter of identifying respective areas in the European Union for complying with the international standards. The promotion and protection of fundamental rights for an individual across the EU are ensured by this agency. In this regard, this agency is responsible to work on different rights such as justice, judicial cooperation and victim rights, asylum, borders, and migration, non-discrimination and equality, data protection and privacy, support for human rights systems and others (FRA, 2021).

Prime differences between ECHR and EUCFR reflect different responsible entities for interpretation. For example, it can be stated that the CJEU (Court of Justice of the European Union) is responsible for the interpretation of the charter of fundamental rights. Similarly, the European Court of human rights is responsible for the interpretation of the ECHR (Equality Human Rights, 2021). Apart from that, the CFR (charter of fundamental rights) can be recognised as an overarching framework concerning the establishment of basic human rights across the EU. In this case, the ECHR profoundly looks forward to conceptualise and signify the most important aspects of human rights. However, the CFR is only applicable for the EU law which can eventually be raised in the courts of the UK a despite having unacceptance of this prospect in the respective country.

Definition of refugees

The idea has been gathered that both Conventions are for the rights of the refugees along with providing them a significant amount of support and security to protect them with better practises in the country along with not forcing them to return to their home country (Bakker et al. 2016). However, both conventions have their own elements and principles regarding refugees’ laws, which are being projected above. The conventions are the role model for the governments and non-government welfare organisations to put emphasis on the wellbeing of the immigrants and their safety. Through these conventions in the legal system allows to prevent those threats and challenges for the needy people along with bringing their life to an existence (Lee et al. 2016). In this context, refugees is the most common term among them however, it does have different definitions.

As per 1951 Geneva Convention, a refugee, according to Article 1 of the convention, is an individual who is out beyond his or her homeland or native country, and has a very good fear of persecution. This feeling is being emerged due to various reasons regarding “race, religion, nationality, membership in a particular social group, or political opinion“, and fails to fulfil the disinclined to seek shelter in that home nation or revert there for fear of being attacked (UNHCR, 2021). As per 1951 Geneva Convention, Governments oversee upholding the laws of their respective countries. People whose fundamental human rights are imperilled and have escaped their country and there is nothing that they can do for themselves are classified as immigrants and given constitutional freedoms. However, refugee and internally displaced persons are both different concepts as per the convention (UNHCR, 2021).

On the other hand, the ECHR and CFR has evolved into a critical tool for safeguarding the rights of thousands and millions of Europeans (Strasbourg, 2020). Even though the treaty does not directly mention immigrants, the Court’s judgement law ensures essential safeguards, including that of non-return, detention restrictions, the reunification of family. Despite this, immigrants’ rights under the agreement are quite often accused of violating, exposed to suffering or unjustified imprisonment, or imprisoned in overcrowded settlements in horrible conditions, returned to unstable countries, abandoned at sea along with alienation from their family members (Strasbourg, 2020).

Furthermore, it has been acknowledged that the convention does not mention the right for the asylum for the refugees as such it provides an overall human right for the inhabitants. The special focus of the convention is made upon non-refoulement. In this relation, the European Convention under both articles 3 and 4 talks about fundamental rights and protection for the refugees along with providing international protection to them (Ní Shúilleabháin, 2019). Furthermore, the interrelation between the both the conventions with EU Asylum Law will be further evaluated in the next segment.

Inter-relation with EU Asylum Law

The European union Asylum law is one of the legislations that is shared by all the member countries within the EU. The European union Asylum law has been assuring the Asylum seekers by welcoming with dignity and require to examine their cases by the EU member states in order to identify why they seek Asylum in a particular European union country. EU and the CFREU (charter for fundamental rights of the European Union) game store provide essential rights to personal freedom for the citizens living in the member countries of the EU (Bychawska-Siniarska, 2017).

The European union Asylum law is complementary with the ECHR and CFREU. Following the European convention on human rights and charter of fundamental rights would allow countries to also respect the EU Asylum in law. This respective law is focused on providing protection to individuals who seek Asylum in one of the many EU member countries (Gill and Good, 2019). As a result, the refugee might be either from one of the member countries or might not be from the member countries. In the case of any refugee who is not a part of EU member states, the ECHR and CFR might not be applicable for these individuals. The ECHR can be recognised as a convention that is essential to be followed by the country and the government (Ferreira, 2018). As a result, in any legal case, the court shall not deal with the indulgence of any private institution such as privately-owned companies or against any individual. Hence if an individual who has complaints regarding the breach of fundamental rights is caused by an individual or a private company the application of the European convention of human rights style does not stand its ground. In such cases specifically, individuals who are refugees and are having legal troubles with private institutions or individuals can refer to the 1951 Geneva convention (Lehmann, 2019). As mentioned in the 1951 Geneva convention on refugees have specific fundamental rights which include their right to stay in the country there right to seek legal Asylum right to work-study and clean benefits linked with welfare and housing as well as access to healthcare that is provided by the government of the country in which they are seeking Asylum.

Similarly, refugees for having issues with privately-owned companies or any individual in the country in which they are seeking Asylum can also refer to Asylum law of the EU (Leigh, 2019). The EU Asylum Law provides international protection specifically to immigrants who have fled from their country of origin to seek Asylum in one of the many European Union States. The prime concern of this Asylum law aims to provide fundamental rights and introduction to any refugee belonging from other countries and has also provisions for providing employment in the country in which they are seeking refuge.

Apart from that, The Asylum law of the European Union has also specific policies for providing immigrants with the provision to receive several benefits from the Government of the country in which they are present only seeking Asylum (Cameron, 2021). To support the requirements and necessity is of these individuals the European social funds are utilised. In this regard, it can be stated that The Asylum law of the European Union has a profitable impact on the economy of the different countries present within the European Union. Instance it has been seen that 25 out of the total countries present weather in the European Union have access to more than 400,000 asylum-seekers (Kellerbauer et al. 2019). These individuals play a major role in forming the migrant workforce which not only provides some food and shelter but also employment facilities that work in the favour of the economy of the country and the entire European Union.

While on the other hand, the 1951 GC has no particular provision for such facilities and has only provisions for ensuring that Asylum seekers for individuals who have fled their country to seek Asylum and protection of another country are received with justice, dignity, and social care (Kır, 2017). Actions against immigrants as a part of the 1951 Geneva convention is unlawful however this contradicts the provisions of open union Asylum law that aims to provide employment to immigrants. It can also be mentioned that immigrants working in a particular country are met with resistance from the locals and discrimination is quite rampant against these individuals which can often lead to violent outcomes.

The refugee crisis that was the result of the civil war in Syria had led to a severe humanitarian crisis in the European Union (Cameron, 2018). Many countries in the European Union were reluctant in terms of providing Asylum to the Syrian refugees however some countries offered support like Germany. Countries like di UK had maintained strong grounds for not admitting Syrian refugees in the country. The increasing number of refugees that became a result of the Syrian civil war was also becoming a problem that could be marginalised with the as a level of the European Union. The EU Asylum law was not fully established to confront the increasing number of refugees from 2016 to 2019 (Peers et al. 2021). Since most immigrants were coming from civil war-torn countries like Syria there was a risk of allowing disguised terrorists among refugees due to which several countries prohibited the entry of refugees. Due to the sheer number of refugees during this period the 1951 GC, the ECHR, or the CFR were not properly addressed. This reflects that all these three policies, conventions and laws might not be applicable in every case. The result might not get protection considering the circumstances in which they try to seek Asylum in a particular European Union country.

Existing Gaps

Different gaps can be notified in both the international treaties like 1951 Geneva convention and European convention on human rights and charter of fundamental rights. These gaps are highlighted below-

Gaps within 1951 Geneva convention

The 1951 Geneva Convention is noted to provide an inadequate guarantee to signify the right to be granted asylum. This treaty has just paid attention to consider the right to protection for every refugee (Benhabib, 2020). Apart from that, the consequences of the reception conditions directive (RCD) have been completely avoided in this treaty. Due to this reason, this treaty has been lacking from a profound infrastructure and framework to the identification and consideration of refugees. Another existing gap within 1951 Geneva Convention reflects the involvement of no certain body regarding the clarification or definition of the convention if required. In this case, a huge loophole can be considered within this treaty regarding its directional authority. The consequences of enforcement mechanisms have not been associated with this treaty that has increased its risk and gaps (Thimm-Braun, 2020). This factor has also been increasing the risk of breaches with regards to signify the protection of refugees with their basic and fundamental rights.

Another important gap within the 1951 Geneva Convention highlights the prohibition of inadequate access to the asylum process or territory of the receiving States. No specific guarantee is provided as per this treaty in this case which have mandatorily reduced its efficiency to some extent.

Existing gaps within the ECHR and CFREU

Different gaps and risk factors can also be notified within the ECHR. The topmost concern in this context highlights strict prohibition of removal from an individual perspective in case of exposing the individual to real risk of loss of life. This attribute is eventually enlightened within article 2. Moreover, similar aspects are eventually applicable in case of experiencing the provision of degrading treatment or punishment to an individual as per article 3. No certain exceptions are included to the prohibition of removal as maintained within the operational framework of the ECHR. Another requirement of this treaty highlighted the consideration of virtual certainty to the prospect of death from an individual perspective. It is eventually associated with the existence of substantial grounds that have explicitly increased the risk and gaps within this treaty (Mavronicola, 2017).

Similar consequences can be reflected from the perspective of the CFREU. This attribute has been notified to consider increasing reliance upon the independent expertise of the fundamental rights agency (Gerstenberg, 2021). The reason behind this dependency highlighted the preparation of compatibility checks as per this treaty. However, this prospect has been increasing a loophole within this framework. Apart from that, the lack of a profound operational mechanism has been creating a potential barrier in the case of developing International human rights attributes. Due to this reason, the international human rights law development might provide adequate doubt on the continuous validity of union law through the interpretation of the charter for ensuring fundamental rights of an individual.

On the other hand, the CFREU has been noted to pay inadequate focus upon the adoption of a fundamental rights strategy in which the prospects of time bound objectives are not entitled (Pye, 2018). This attribute has created another gap in the conceptualisation of this charter for respective European Union agencies. A suitable mechanism is not present within the CFREU concerning the treatment against any violation of fundamental rights detected and reported to the authority. It eventually reflects lack of establishment to the position for a fundamental rights officer who will be directly responsible for reporting to the management board for ensuring a certain degree of independence.

The mentioned aspects highlight the consideration of a profound reformation to both the mentioned treaty such as 1951 Geneva Convention and ECHR, CFREU. A respective authority is likely to be formed as an integral part of extending the compatibility check for both the international treaties. This action can ensure increasing acceptance and credibility of these treaties for establishing basic ok and fundamental human rights along with the protection of refugees.

Access to asylum procedures

Every individual who is in dire need for international protection must be ensured access to the procedures of asylum. Several people that are in need for protection do not know their obligations and rights and therefore do not actively look for asylum when they arrive in a new country (EASO, 2021). The persons present in the borders as the first point of contact of the refugees play a vital role as they must identify the people wanting to apply for asylum. It is the responsibility of the first contact officials to refer the refugees with appropriate procedures for the purpose of applying in the asylums. Measures which are taken at the crossing point of the borders along with the detention facilities are marked as one of the primary moments where the needs of the person vulnerable to the situations are detected or declared (Kakosimou, 2017). As the official of first contact, it is their duty to identify the vulnerable person and refer them for support and further assessment to national authorities.

The Asylum Procedures Directive (APD) describes three separate steps of access to procedures, distinguishing between registering, making, and lodging an application for the person looking for international protection (EASO, 2021). Primarily making an application for the purpose of international protection is referred to as an act of expressing a person’s need to any authority about the wish to obtain international protection. Any person who has been seen to be expressing their intention for applying for international protection can be considered as an applicant with all obligations and rights attached to the status. Adding to that, after the application has been made for international protection, it needs to be registered by any competent authorities within a limited timeframe, which is not more than 3days (EASO, 2021). This timeframe is feasible if the application has reached the responsible authority for registering it. However, the time may be extended to 6 days, if the application has been handed to any other officials such as border guards, police, and others (EASO, 2021). Moreover, under exceptional circumstances such as a large number of simultaneous applications and others, the period can be further extended up to 10 working days (EASO, 2021). Finally, lodging an application for the purpose of international protection means that the person who is referred as an applicant has to present the documents/information for completing the previously created file during the period of application registration. Furthermore, starting of the first-instance examination is specifically triggered by the lodging of the applications. The rules are often set by the member states regarding the location of lodging to take place.

The people associated with providing international protection to the refugees need to be extensively proactive in every situation to judge the needs of the people in the vulnerable situation. Furthermore, the people need to pay attention to every detail of the people in need (Hoór, 2021). Every refugee deserves to get a shelter and therefore, people in authority need to be open minded, respectful, and non-judgemental. Moreover, to analyse the situation, the person needs to be a good listener and adopt an appropriate communication style to deal with the situation and refugees.

Apart from that, Article 42 of the CFREU eventually highlights from the individual perspective regarding the right of accessing the documents. This article defines the right of access for any person residing in the country within the Union or any person lawfully eligible with a registered office or residing within the state of Members. The accessing right in this case has conceptualized valuable institutional documents along with respective agencies and offices present in the union, bodies, and others. The guaranteed or assured right in this case is considered from Article (255) of the EC treaty (FRA, 2021). The basis of this right highlights the consideration of regulation number 1049/2001 that has been subsequently adopted for guaranteeing access to rights. However, this right has been expanded by the European convention to respective institutions and bodies as per the treaty with Article 15(3) which is related to the ways the EU functions or operates. On the flip side, the charter containing Article 52(2) eventually reflects certain conditions and limits regarding accessing rights to the documents (FRA, 2021).

Conclusion

The overall essay has highlighted different attributes of both the 1951 Geneva convention and European convention on the aspect of rights of human beings and fundamental rights from charter. Adding to that, the prime concern of the 1951 Geneva convention highlighted the attributes for the protection of refugees. The ECHR and CFREU speed attention to signify fundamental and basic rights which every individual needs to possess. With regards to this concern, the prospects of right to liberty, right to life and security, prohibition of slavery and others are conceptualized along with freedom of thought and others.

Different definitions of a refugee can be reflected as per both the international treaties as mentioned. However, the 1951 Geneva convention included the prospects of inadequate infrastructure and framework along with ineffective clarification of the convention due to having the involvement of no specific governing body. Almost similar aspects can also be pointed out across both the ECHR and CFREU concerning the requirement of virtual certainty to the prospect of death along with increasing dependence upon the independent expertise of the fundamental rights agencies respectively. Adequate access is also provided to the asylum procedure within both the international treaties where a detailed understanding of the application for individual protection has been enlightened. The consequences of different articles from the CFREU are eventually highlighted that has been clarifying the right to access for individuals.

 

 

 

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