Introduction to International Refugee Law Parts 4-7

Introduction to International Refugee Law Parts 4-7

E L T E INTERNATIONAL REFUGEE LAW Presentation by Boldizsr Nagy ELT HR LLM 2017 February 2 0 1 7 Motto: I urge you, Secretary-General, to initiate negotiations on sharing this burden at a global level. All major stakeholders of international politics will have to take some of the migrants to their countries as part of a global quota system. Statement by H.E. Mr. Viktor Orbn Prime Minister of Hungary

at the High Level Side Event on Strengthening cooperation on migration and refugee movements in the perspective of the new development agenda 30 September 2015 United Nations New York at http:// un.newyork.gov.hu/accessibility/download/5/02/21000/Statement_of_Viktor_Orb%C3%A1n_High-Level_Meeting _on_Migration.pdf E L T E 2 0 1 7 E L T E The orders of magnitude 2 0 1 7

Major trends, 2015, (flow data) During 2015 12,4 million persons were forced to flee from home. Of them 8,6 million were internally displaced and 1.8 new refugees crossing an international border Beyond them there were 2 million new applications submitted by persons who left home earlier On a daily average 34,2000 persons had to flee (In 2010ben the number was :10 900) 107,100 refugees were resettled from the country of first asylum to another state 201,400 returned home ( since 1994 altogether 18,4 million) Forrs: UNHC R, Global Trends

Forced Displac ement 2015, Geneva , 2016, E L T E 2 0 1 7 Stock data At the end of 2015 There were 65,3 forced migrants Of these 21,3 million were refugees. Of the refugees 5,2 million were the Palestinian and 16,1 million of other nationality 40,8 million internally displaced persons 3,2 million asylum seekers

Of all the refugees 50 % is below the age of 18. Syria (4.9 million) Afghanistan (2,8 million) and Somalia (1,1 million) are the three countries wherefrom more than half of the refugees came E L T E 2 0 1 7 Recognition rates within the decisions on the merits Between 2000 and 2012 yearly 0,6 - 1,0 million applications were submitted 2 0 1 7

Recognition rate wirhin the decisions on the merit oscillated between 27% and 47 %. In 2015-ben decision on the merit was taken on 1,18 million applications In 2014-2015- E L T E Sourc: UNHCR, Global Trends Forced Displacement 2015, Geneva, 2016, Syria! (January, 2017) E L T

E 2 0 1 7 Sources: http://www.migrationpolicycentre.eu/migrant-crisis/focus-on-syrians/ (20170109) http://data.unhcr.org/syrianrefugees/regional.php (20161107 authors assemblage Egypt: 115,204 Iraq: 230,836 Jordan: Lebanon: Turkey: 655,399 1,017,433 2,814,631 Number of asylum applications in EU+ EU 28 + Norway and Switzerland E L T E

2 0 1 7 Source: Latest asylum trends 2016 overview, p. 1 https://www.easo.europa.eu/sites/default/files/Latest%20Asylum%20Trends%20Overview%202016%20final.pdf Main countries of origin of applicants in the EU+ in 2016 E L T E 2 0 1 7 Source: Latest asylum trends 2016 overview, p. 1 https://www.easo.europa.eu/sites/default/files/Latest%20Asylum%20Trends%20Overview%202016%20final.pdf Decisions - recognition - numbers and rates, EU+, 2016 E L

T E 2 0 1 7 Source: Latest asylum trends 2016 overview, p. 3. https://www.easo.europa.eu/sites/default/files/Latest%20Asylum%20Trends%20Overview%202016%20final.pdf E L T E TERMS, DEFINITIONS A CLOSER LOOK 2 0 1 7 Categories of foreigners internally displaced) Migration International

Regular A longer than 1 year presenc/absence, in No right to accrodance with the enter/stay Illegal law Undocumente d foreigner, Regular migrant Persons with (Worker, student, family no right to unifier, etc.) enter and/or stay Domestic Irregular 2 0 1 7 Forced migration Refugee

E L T E Internally displaced person, IDP Terms - definitions asylum seeker refugee asylum refuge (others) of concern (to UNHCR) returned refugees internally displaced persons returned IDPs stateless persons other various groups E L T E 2 0 1

7 Definitions Geneva Convention relating to the status of refugees 1951 Article 1. Definition of the term refugee A. For the purposes of the present Convention, the term refugee shall apply to any person who: (1) Has been considered a refugee ...[according to the interwar arrangements and the IRO constitution] (2) As a result of events occurring before 1 January 1951 and owing to wellfounded 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 unwilling to return to it. as a result of such events, is unable or, owing to such fear, is E L T E

2 0 1 7 Definitions Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 Article 1 Definition of the term "Refugee" 1. [ Geneva definition] 2. The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. E L T E 2 0 1 7

Definition Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama Adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia from 19-22 November 1984. The Colloquium adopted the following conclusions: ..... 3. To reiterate that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. E L

T E 2 0 1 7 Definition EU Temporary Protection Directive (Council Directive 2001/55/EC OJ L 212/14) Article 2 For the purposes of this Directive: (a) temporary protection means a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection; (b) ... (c) displaced persons means third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:

(i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights E L T E 2 0 1 7 Definitions EU Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ L 304/12 2004 09 30,)

EU Qualification Directive 2004/2011 Art 2 2004:(e) 2011: (f) DIRECTIVE 2011/95/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted person eligible for subsidiary protection [means someone], who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, .....is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; Art 15 (in both) Serious harm consists of:

(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict E L T E 2 0 1 7 E L T E DURABLE SOLUTIONS Presentation by Boldizsar Nagy 2 0 1

7 DURABLE SOLUTIONS Durable solutions Voluntary repatriation Presentation by Boldizsar Nagy Integration E L T E 2 0 1 7 Resettlement VOLUNTARY REPATRIATION (RETURN) Most preferred solution statist perspective: tool to remove

liberal: best for the refugee (is it?) (D.Joly: Rubicon/Odysseus type ) Questions: relationship to termination of threat of persecution- cessation (see, e.g. Hathaway, The Rights of refugees under i.l., 917-963) individual or organised Preconditions: safety and dignity being well-informed chance to re-start life at home re-integration to local community (tensions between those who fled and those who endured) See also UNHCR, 'Handbook Voluntary Repatriation: International Protection', 1996, Handbook for Repatriation and Reintegration Activities, UNHCR, 2004 Presentation by Boldizsar Nagy E L T E 2 0

1 7 INTEGRATION The basic modes of the relationship between the refugees and the host society Integration Isolation Assimilation Segregation Presentation by Boldizsar Nagy E L T E 2 0 1 7

RESETTLEMENT Long practice, still alive (Canada, US, Australia, New Zealand, Norway, Ireland receive) Dual reading: solidarity or burden-shifting May be the only alternative (e.g. when states maintain geographic reservations, as Turkey.) 1994 2003 average: 26 700 persons* EU decided in 2015 to resettle 20 000 Canada, US. Increased pledges for Syrian refugees Dilemma: intra regional or across continents? *UNHCR : Statistical Yearbook, 2003, Geneva 2005, p. 27 Presentation by Boldizsar Nagy E L T E 2 0 1 7 E L T E

FUNDAMENTAL PRINCIPLES Presentation by Boldizsar Nagy 2 0 1 7 DURABLE SOLUTIONS Fundamental principles Family unitiy Presentation by Boldizsar Nagy Non-discrimination E L T E 2 0

1 7 Non-refoulement FAMILY UNITY Final Act of the 1951 Conference Declarations: THE CONFERENCE, RECOMMENDS Governments to take the necessary measures for the protection of the refugee's family, especially with a view to: > (1) Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country: (2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption. Global consulations, 2001: 12. The requirement to provide documentary evidence of relationships for purposes of family unity and family reunification should be realistic and appropriate to the situation of the refugee and the conditions in the country of refuge as well as the country of origin. A flexible approach should be adopted, as requirements that are too rigid may lead to unintended negative consequences. An example was given where strict documentation requirements had created a market for forged documents in one host country. Presentation by Boldizsar Nagy

E L T E 2 0 1 7 NON-DISCRIMINATION GC 51, Article 3. Non-discrimination The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin. discrimination - reasonable differentiation Practice: political preferences (Haitians v Cubans in US in 1980s) ethnic preferences (Hungary early 1990) Presentation by Boldizsar Nagy E L T E 2 0

1 7 E L T E THE PRINCIPLE OF NONREFOULEMENT ARTICLE 33 AND BEYOND Presentation by Boldizsar Nagy 2 0 1 7 NON-REFOULEMENT The principle of non-refoulement prescribes, broadly, that no refugee should be returned to any country where he or she is likely to face persecution, other illtreatment, or torture Guy Goodwin-Gill-Jane McAdam: The refugee in international law, 3rd ed. p.201

Presentation by Boldizsar Nagy E L T E 2 0 1 7 NON-REFOULEMENT Three possible meanings 2 0 1 7 - (Recognised) refugee - Asylum seeker + refugee

- Anyone - Within the country - At the border or within the territory - Anywhere Against persecution On five grounds Presentation by Boldizsar Nagy E L T E Against torture, inhuman or degrading treatment or punishment On any ground NON-REFOULEMENT Geneva Convention, Art 33

Prohibition of expulsion or return ("refoulement") 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever at 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. 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 judgment of a particularly serious crime, constitutes a danger to the community of that country. Presentation by Boldizsar Nagy E L T E 2 0 1 7 WHO IS BOUND? ATTRIBUTION TO THE CONTRACTING STATE Issues of attribution to the state (for whose acts is the state responsible?)

Territory border jurisdiction control Acts committed outside the territory and beyond the border also are attributable -If within jurisdiction -If exercising effective (overall) control (Amuur v. France ; Loizidou v Turkey; Ilascu and others v Moldova and Russia; Al-Skeini and others v UK) _________ -Diplomatic representation: not territory, - asylum seeker is not outside the country not a refugee - Diplomatic asylum not customary law ____________________ -Excision of territory (Australia) - irrelevant from the international legal point of view still responsible Presentation by Boldizsar Nagy E L T E 2 0 1 7

WHO IS PROTECTED? a) Asylum seekers and recognised refugees Convention does not use the term asylum seeker asylum seeker = refugee not yet recognised by the state Simple presence is enough! (not: lawful) See also broader (human rights based) meaning everyone! b) Individual procedure on denying / withdrawing the benefit of non-refoulement - individualised procedure (no group refoulement) - procedural guarantees, including effective remedy Presentation by Boldizsar Nagy E L T E 2 0 1 7 Who is protected? Is mass influx an exception from non-refoulement? Exception

National security or public order arguments at the 1951 Conference Some authors (.e.g. Coleman, 2003;) refoulement always individual step Incidents in state practice (Thailand before 1979, Turkey, 1991, Macedonia,1999, Pakistan, 2000) Presentation by Boldizsar Nagy Not an exception Convention text does not include reference Prevailing doctrinal view: not an exception to non-refoulement (exception as to the rights to be guaranteed) 33/2 refers only to individual threats to national security EU Temporary protection Directive: duty to admit ExCom Conclusion 22 (1981) Non-ref. even in mass influx

Contradicting state: excuse E L T E 2 0 1 7 WHO IS PROTECTED? IS MASS INFLUX AN EXCEPTION FROM NON-REFOULEMENT? Possible resolution of the dilemma: Non-refoulement applies duty to admit is unconditional, but Legal claim to assistance by the international community Entitlement to withhold certain rights of refugees In cases when the survival of the nation is at stake: arguing state of necessity _________________________________ Is Lebanon, Jordan or Turkey entitled to admit no more refugees? European influx in 2015 would it justify? Presentation by Boldizsar Nagy

E L T E 2 0 1 7 WHAT IS PROHIBITED? RETURN IN ANY MANNER WHATSOEVER Extradition -To potentially persecuting: prohibited (unless GC 33/2 applicable and no absolute prohibition to return) GC lex specialis + principles of extradition law aut dedere aut judicare helps against nonextraditable criminals -To third countries - allowed unless danger of refoulement from there Presentation by Boldizsar Nagy E L T

E 2 0 1 7 WHAT IS PROHIBITED? RETURN IN ANY MANNER WHATSOEVER Expulsion return refoulement Expulsion formal order to leave territory (and prohibiting return) Return in any form factual Refouler (French and Belgian administrative law measure of bringing back to the frontier of a neighbouring country) Rejection: see next slide on border Presentation by Boldizsar Nagy E L T E 2 0 1 7

WHAT IS PROHIBITED? RETURN IN ANY MANNER WHATSOEVER Border Grahl-Madsen: not included But: an asylum seeker who gets into contact with the border guard is within the jurisdiction of the state to be entered no longer in the persecuting country Turning away = returning to (the frontiers) of a territory Duty of letting entry asylum Presentation by Boldizsar Nagy E L T E 2 0 1 7 WHAT IS PROHIBITED? RETURN IN ANY MANNER WHATSOEVER

Seas Distress or not? (Right to visit: only flag state) Prevailing view: non-refoulement applies even in distress rescue (Sale v Haitian Council, US Supreme Court: bad decision) Question: flag state should conduct RSD or first port of call (Tampa, 2001)! The non-refoulement obligations prohibit European border officials from turning back, escorting back, preventing the continuation of a journey, towing back or transferring vessels to non-EU coastal regions in the case of any person in potential need of protection, as long as the administrative and judicial examination of the asylum application has not been completed on European territory. European border officials are bound by this obligation even when operating exterritorialy. In the case of measures at sea, this applies inside the 12 mile zone, as well as in the contiguous zone, on the high seas and inside the coastal waters of third countries . A Fischer-Lescano, T Lhr, and T Tohidipur, p. 296 Presentation by Boldizsar Nagy E L T E 2 0 1 7

THE PLACE TO WHICH REFOULEMENT IS PROHIBITED Frontier of territory - not necessarily a state (Gaza?!) - not necessarily country of origin (threat to life or freedom in country of /first/ refuge) Debates on the concept of safe third country - not more than rebuttable presumption - European list never adopted The issue of returns within the EU under the Dublin regulation Presentation by Boldizsar Nagy E L T E 2 0 1 7 THREAT TO LIFE OR FREEDOM Persecution - threat to life or freedom Same? Prevailing view (e.g. Weis, Grahl-Madsen, Klin) : yes

(otherwise some refugees not protected from refoulement) Drafters: not only to refer where well founded fear but anywhere Standard of probability also the same Would be threatened = well founded fear of persecution Presentation by Boldizsar Nagy E L T E 2 0 1 7 NON-REFOULEMENT - BROAD MEANING Art. 3 ECHR, Art 3 CAT Broader, because Protects every person, not only refugees There are no exceptions It can apply even in case GC 33/2 would allow refoulement The threatening harm is not linked to any ground (race, religion, nationality, political opinion, belonging to a

particular social group) Question: absolute or not? Chahal v UK (1996), Saadi v Italy(2008) Canada) (2002), intervention of UK in Saadi Presentation by Boldizsar Nagy Suresh (Supreme Court of E L T E 2 0 1 7 SAADI V. ITALY ECTHR, 2008 Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation (para 127)

______________________________________ For further details see the Annex Presentation by Boldizsar Nagy E L T E 2 0 1 7 WHY NOT REFOULE? Not only because of the absolute legal obligation but because it is part of our moral convictions! We protect our chosen values by not exposing persons to refoulement, by not handing them over to torturers and persecutors Presentation by Boldizsar Nagy E L

T E 2 0 1 7 E L T E WELL-FOUNDED FEAR Presentation by Boldizsar Nagy 2 0 1 7 WELL FOUNDED FEAR Two approaches Mixed (subjective and objective) Handbook (37, 40) Objective

Hathaway probability of persecution + state of mind probability of persecution Purely forward looking: what would happen upon return home? (except for interwar categories and IRO who may invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection GC 1 C (6)) Presentation by Boldizsar Nagy E L T E 2 0 1 7 WELL FOUNDED FEAR - EVIDENCE / PROOF /

CREDIBILITY Tools to establish the well-founded nature of the fear Generalised oppression Asylum seekers testimony (credibility) Past persecution of the a.s. Harm to similarly situated persons General human rights situation WELL FOUNDED FEAR TIME AND PLACE Time: not necessarily at departure

- refugees sur place - at the moment of decision (Said v Netherlands, ECHR, Appl. 2345/02) Place: territory of future persecution not necessarily state of nationality + stateless persons Presentation by Boldizsar Nagy E L T E 2 0 1 7 WELL FOUNDED FEAR - EVIDENCE / PROOF / CREDIBILITY Because the risk of persecution will never be definitely measurable, decision-makers should ask only whether the evidence as a whole discloses a risk of persecution which would cause a reasonable person in the

claimants circumstances to reject as insufficient whatever protection her state of origin is able and willing to afford her Hathaway: The Law of Refugee Status,1991, at p. 80 Presentation by Boldizsar Nagy E L T E 2 0 1 7 WELL FOUNDED FEAR - EVIDENCE / PROOF / CREDIBILITY Tools to establish the well-founded nature of the fear Generalised oppression Asylum seekers testimony (credibility)

Past persecution of the a.s. Harm to similarly situated persons General human rights situation WELL FOUNDED FEAR - EVIDENCE / PROOF / CREDIBILITY Credibility The asylum seekers account (plausible, credible, frank) R E False assumptions of the interviewer M E M

The role of the interpreter B E R The causes of inconsistencies - Difference of cultures - PTSD - Groups with special needs (torture victims, women, minors, others) Benefit of the doubt Presentation by Boldizsar Nagy ! See: G.Noll ed.: Proof, Evidentiary Assessment and Credibility in Asylum procedures, Martinus Nijhoff, Leiden, 2005 E L T E 2 0

1 7 Well-founded fear evidence country of origin info (Country of origin information, COI) Reliability of sources Requirements on COI - UNHCR (Refworld!) - International NGO-s - UN (and regional) human rights bodies - National, governmental reports Relevance of the COI (Said v Netherlands, ECHR, 2005 separate opinion of Judge Loucaides) web-based - www.ecoi.net It relates to the legal issue reinforcing or denying the danger of the future

persecution Reliability and balance of sources Objective, impartial, coming from a variety of sources Accurate Research and Selection of Up-to-date Information Current and not distorted Transparent Processing and Communication of Information Identifying the source, controlling possible translation The access to information arms length secret information e.g. in case of Presentation by Boldizsar Nagy E L T E 2 0 1 7

E L T E PERSECUTION. ACTORS, ACTS, GROUNDS Presentation by Boldizsar Nagy 2 0 1 7 PERSECUTION ACTS, ACTORS What constitutes persecution? GC does not interpret persecution Handbook: 51: Threat to life and freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights for the same reasons also constitute persecution. 52: The subjective element - depends on the perception by the victim 53: Cumulative ground http://www.unhcr.org/publications/legal/3d58e13b4/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html

HB on specific issues: Discrimination (54-55); punishment (56-60); Republikflucht (61); economic hardship in certain circumstances Persecution - prosecution difference Presentation by Boldizsar Nagy E L T E 2 0 1 7 NOTION OF PERSECUTION Deborah Anker: Persecution - universal and flexible meaning Serious harm, not limited to physical harm or threat to life and freedom The state fails to protect Guy Goodwin Gill: unacceptable interference with the integrity or inherent dignity of the human being J. Hathaway: the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.

Presentation by Boldizsar Nagy E L T E 2 0 1 7 THE ACTOR Historic aspects of the system Nazi Germany, totalitarian Soviet Union, Communist systems in eastern Europe, authoritarian states worldwide the persecutor is the state, its authorities Increased role of non-state actors new tribalism, nationalism, religious fights Insurgents in civil wars (e.g. in Latin America) Dominant group turning against its subgroup see particular social group Presentation by Boldizsar Nagy E L T

E 2 0 1 7 ROLES IN CASE OF STATE PERSECUTION AND NON-STATE ACTOR ACTION Non-state actor E L T E persecutes Own state Does not appropriately protect Gives legal protection persecutes Asylum state

Offers surrogate protection Does not regard as GC 51 persecution Offers humanitarian status The threatened person Presentation by Boldizsar Nagy refugee De facto / person enjoying subsidiary protection Ignores / repatriates Victim Beneficiary of domestic

legal procedure 2 0 1 7 THE HORVATH CASE HORVATH V. SECRETARY OF STATE FOR HE THE HOME DEPARTMENT [2001] 1 AC 489* Facts: Applicant: H. Slovak national, Roma person form the village Palin arrives to the UK in 1997 The subject of the complaint: - Skinhead threats, police do not protect - Refused employment for Roma ethnicity - His child is discriminated against in the school system Procedure: Application refused by Secretary of State. The Special Adjudicator did not find him to be credible and dismissed the appeal. The Immigration Appeal Tribunal reversed finding on credibility but concluded that, while he had a well-founded fear of violence by skinheads, he had not shown that he was unable to avail himself of the protection of the state.

The Court of Appeal dismissed the appeal against the determination of the tribunal Decision of the Lords: no recognition, because although threat of persecution real, there is state protection against it. *Reproduced in: IJRL, vol. 13 (2001), No 1 / 2, 174 - 201 Presentation by Boldizsar Nagy E L T E 2 0 1 7 HORVATH - PROTECTION BY THE STATE Two issues: The relation of state The required level of protection and persecution state protection Protection and persecution Holistic approach Of the 5 lords, 4 opine that persecution = serious harm + lack of state protection Starting point: the purpose of GC 51: protection and fair treatment = protection by

asylum state is a surrogate of the protection of the country of origin if that persecutes But what if the persecutor is a non-state actor? Lord Craighead makes lack of protection part of persecution, Lord Clyde makes lack of protection part of well founded fear (Lord Browne Wilkinson agrees with both, Lord Hobhose of Woodborough only with Lord Clyde) (Fear from) persecution is well founded, if the applicant fears persecution which consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection Lord Lloyd of Berwick denies the unity of fear/persecution and lack of protection and considers it a separate element of the definition Gradu alPresentation by Boldizsar Nagy E L T E 2 0 1 7 Horvath - state protection The required levels of state protection All the three decision making levels (IAT, CoA, HoL) agree that Slovakia has offered

appropriate protection E L T E When is protection appropriate? there must be in force a criminal Practical State protection is of such law which makes the violent attacks high level that fear does not occur by the persecutors punishable by sentences commensurate with the gravity of the crimes. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders." = subsequent punishment (+ preventive effect) Presentation by Boldizsar Nagy This would entail an obligation to prevent

2 0 1 7 GROUNDS FOR PERSECUTION Presentation by Boldizsar Nagy E L T E 2 0 1 7 E L T E The five grounds of persecution Particular social group

Race Political opinion Religion Presentation by Boldizsar Nagy Nationality 2 0 1 7 RACE International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 Article 1 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

HB, 68: broadest meaning including any ethnic group Presentation by Boldizsar Nagy E L T E 2 0 1 7 RELIGION International Covenant on Civil and Political Rights Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Theistic non-theistic atheistic Presentation by Boldizsar Nagy E L T E 2 0 1 7 RELIGION UNHCR GUIDELINES 2004 Travaux prparatoires of the 1951 Convention no attempt to define r. E L T E It encompasses freedom of thought, conscience or belief as reflected by the human rights instrument . It may mean a) religion as belief (including non-belief); b) religion as identity;

c) religion as a way of life. Belief, = theistic, nontheistic and atheistic beliefs. It is convictions or values about the divine or ultimate reality or the spiritual destiny of humankind. Claimants may be seen by their environment as heretics, apostates, schismatics, pagans or superstitious Identity is less a matter of theological beliefs than membership of a community that observes or is bound together by common beliefs, rituals, traditions, ethnicity, nationality, or ancestry Way of life = how they relate, either completely or partially, to the world. Wearing of distinctive clothing or observance of particular religious practices, including observing religious holidays or dietary requirements. Sincerity of belief, identity and/or a certain way of life is not central - the persecutor may impute or attribute this religion, faith or practice to the individual or group. Presentation by Boldizsar Nagy 2 0 1 7 BUNDESREPUBLIK DEUTSCHLAND V Y (C-71/11), Z (C99/11) THE AHMADI (RELIGION) CASE GRAND CHAMBER JUDGMENT OF 5 SEPTEMBER 2012 Facts: Y and Z Pakistani nationals members of the Muslim Ahmadiyya community. Arrive in Germany in 2004 and 2003 Claimed persecution:

Y: beaten up in his village by non-state actors, stones thrown at place of prayer, death threats (and threat of reporting to the police) Z: mistreatment and imprisonment for his religious beliefs + Pakistani Criminal Code criminalises if Ahmadi people claim to be Muslim, describe their faith as Islam, preach or propagate their faith or invite others to accept it. Defiling the name of Prophet Mohamed entails serious punishment, even death penalty. Presentation by Boldizsar Nagy E L T E 2 0 1 7 Bundesrepublik Deutschland v Y (C-71/11), Z (C99/11) the Ahmadi (religion) case99/11) the Ahmadi (religion) case Issues: 1. Is any interference with religious practices persecution? 2. Can core areas and external aspects of religious freedom be separated (and

only give protection to the core areas)? 3. Is the nature of the repression inflicted on the individual and its consequences determinative of persecution? 4. Should persons abstain from religious practices in public in order to avoid persecution? Presentation by Boldizsar Nagy Courts answers 1. No 2. No 3. Yes 4. No E L T E 2 0 1 7

NATIONALITY Includes ethnic or language groups, may coincide with minorities, stateless. POLITICAL OPINION Not: activity! Genuinely held - imputed Government - probably will learn about it - probably will not tolerate it Issues: Republikflucht, desertion, conscientious objection, exclusion clauses Presentation by Boldizsar Nagy E L T E 2 0 1 7 PARTICULAR SOCIAL GROUP HB 77 A `particular social group` normally comprises persons of similar background, habits or social status.

The two ways of defining a group A) Protected characteristics of the group innate linked to unchangeable the past identity/dignity voluntary association fundamental to personal not to be expected immutable Presentation by Boldizsar Nagy to be given up E L T E 2 0 1 7

PARTICULAR SOCIAL GROUP B/ Social perception: perceived by the society as a separate group within the society Key issue: either is enough or conjunctive UNHCR 2002*: Alternatives EU Qualification Directive Both needed (conjunctive) UK House of Lords, 2006 SSHD v K, Fornah v SSHD (UKHL 46) - No need to meet the dual test US BIA 2014: Matter of W-G-R- (26 I&N Dec. 208) (BIA 2014) Requires characteristics + social distinction Persecution alone does not create a group (but may indicate the perception as a group) No need for every member of the group to be threatened with persecution No need for cohesion (knowing each other) *Guidelines on International Protection, Membership of a Particular Social Group Presentation by Boldizsar Nagy E L T E

2 0 1 7 GENDER Gender - Sex UNHCR: GUIDELINES ON INTERNATIONAL PROTECTION: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention HCR/GIP/02/01 7 May 2002 E L T E the relationship between women 2

and men based on socially or culturally sex is a biological determination. 0 constructed and defined identities, 1 status, roles and responsibilities See also the national 7 guidelines: Australia, that are assigned to one sex or another Canada, Sweden, UK, US (UNHCR Guidelines, para 3) Gender specific as woman as man Gender related because she is a woman/man Gender specific persecution Rape FGM Forced Forced Domestic Gender Sexual abortion marriage violence specific

abuse mores/dress codes Always persecution (if no protection) May amount to persecution Presentation by Boldizsar Nagy GENDER IDENTITY/SEXUAL ORIENTATION Gender identity refers to each persons UNHCR Guidelines in International protection No.9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Articla 1A(2) of the 1951 Convention relating to the Status of refugees HCR/GIP/12/09, 23 October 2012 deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body, and other expressions of gender, including dress, speech and mannerisms. UNHCR GUIDANCE NOTE ON CLAIMS FOR REFUGEE STATUS UNDER THE 1951 CONVENTION RELATING TO SEXUAL ORIENTATION AND GENDER IDENTITY 2008

sexual orientation refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender, or more than one gender UNHCR Note, quoting the 2007 Yogjakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity 5 gay to refer to men, who is physically, romantically, and emotionally attracted to men - lesbian refers to women - Bisexual is used to a person attracted by both men and women - Transgender refers to men and women whose gender identity does not align to their assigned sex. Transgender does not imply any specific form of sexual orientation and may include transsexuals and crossdressers - Intersex or "disorders of sex development" (DSD) - refers to a condition in which an individual is born with reproductive or sexual anatomy and/or chromosome patterns that do not seem to fit typical biological notions of being male or female Presentation by Boldizsar Nagy E L T E 2 0 1 7 X, Y AND Z V MINISTER VOOR IMMIGRATIE EN ASIEL CJEU, C-199/12, C-200/12, C-201/12, JUDGMENT OF 7 NOVEMBER 2013

Facts: three men, all claim refugee status (between 2009 and 2011) for being persecuted for homosexuality in Sierra Leone, Uganda and Senegal. In each country homosexuality is a crime Their homosexuality and credibility not in dispute in front of the Raad van Staade Preliminary questions addressed to CJEU: 1. Do persons with a homosexual orientation form a particular social group? If they do: 2. Which homosexual activities fall within the scope of the Directive and (in case of persecution) can that lead to of refugee status? Subquestions: Presentation by Boldizsar Nagy E L T E 2 0 1 7 X, Y AND Z V MINISTER VOOR IMMIGRATIE EN ASIEL CJEU, C-199/12, C-200/12, C-201/12, JUDGMENT OF 7 NOVEMBER 2013

(a) Can homosexuals be expected to conceal their orientation from everyone in their [respective] country of origin in order to avoid persecution? (b) If not, can they be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution? Moreover, can greater restraint be expected of homosexuals than of heterosexuals? (c) If a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined? 3. Do the criminalisation of homosexual activities and the threat of imprisonment in relation thereto, constitute an act of persecution? If not, under what circumstances would that be the case? Presentation by Boldizsar Nagy E L T E 2 0 1 7

X, Y AND Z V MINISTER VOOR IMMIGRATIE EN ASIEL, 2013 CJEU Interpretation of the QD should be in conformity with G51 and with the Charter of F.R. Well founded fear of personally being subject to persecution ( 43) Yes! Ad Q 1 (Do homosexuals constitute a p.s.g.?) Homosexuality: protected characteristics, not to be renounced as it is fundamental to identity ( 46) Criminal punishment makes them perceived as a separate group Ad Q 3 (!) (Is criminalisation persecution?) Persecution = serious interference with human right Homosexual acts = family and private life = may be subject to derogation Mere criminalisation does not violate QD, but Yes! If actually applied Long term imprisonment may be So severe as to be disproportionate or discriminatory (58) discriminatory or If such, it must be shown that applied in practice disproportionate Presentation by Boldizsar Nagy

E L T E 2 0 1 7 X, Y AND Z V MINISTER VOOR IMMIGRATIE EN ASIEL, 2013 Ad Q 2: (Should homosexuality be concealed or restraint exercised if no perseNo concealement or restraint cution before departure occurred? may be required! What is core area? ) Sexual orientation cannot be understood to include acts considered criminal in accordance with national law of the [EU] Member States (Universalist to be relativist debate! - BN) No, a contrario argument: in public mentioned in connection with religion but not with sexual orientation If a person can not be expected to renounce homosexuality then he can not be

required to conceal it as that would be incompatible with the non-renunciation entitlement Assessment of risk of persecution is independent from restraint i.e. abstention from certain behaviour. No need to answer what is core. Anything should be allowed what is not prohibited in the EU Member States. Presentation by Boldizsar Nagy E L T E 2 0 1 7 RIGHTS OF THE REFUGEES END OF REFUGEE STATUS EXCLUSION FROM PROTECTION STATUS PROTECTION ELSEWHERE The matrix of rights Treatment

Simple presence The same treatment (S) (or at least as favour-able /AF/) as is accorded to nationals Lawful Presence/Stay 4 Religious freedom (AF) 20 Rationing (S) 21 (1) Elementary edcuation (S) 29 Fiscal charges (S) The most favourable treatment accorded to nationals of a foreign country, in the same circumstances Treatment as favourable as possible and, in any event, not less favourable than

that accorded to aliens generally General obligations 14 Artistic rights and industrial property 16 (2) Access to courts (legal assistance, etc.) 23 Public relief and assistance 24 Labour legislation and social security 15 Right of (non-political and nonprofit-making) associations and trade unions 17 Right to engage in wage-earning employment 7 (1) /sets as general standard/ 13 Movable and immovable property 22 (2) Non-elementary (higher) education In countries other than that in which he has his habitual

residence, the treatment granted to a national of the country of his habitual residence Lawful residence 18 Selfemployment 26 Freedom of movement within the country 19 Liberal professions 21 Housing 14 Artistic rights and industrial property 16 (3) Access to courts (legal assistance, etc.) 2 Conformity to law of asylum country 3 Non-discrimination 27 Identity papers 33 Non refoulement danger to security or crime to community

32 shall not expel a refugee national security or public order 25 Administrative assistance 28 Travel document Nonapplication of the Convention Cessation clauses Exlusion clauses Protection by others Cessation clauses Voluntary

act of the refugee Re-availment of protection 1 C (1) Changed/ceased circumstances Reestablishment in country of origin 1 C (4) Reacquisition of (old) nationality 1 C (2) Acquisition of new nationality 1 C (3) CESSATION CLAUSES Re-availment of protection 1 C (1)

Voluntary and intentional Passport Registering with authorities of the country left (acquiring documents through diplomatic missions) Re-establishment in country of origin 1 C (4) Voluntary and intentional Length of stay (short visit : not) Information on circumstances Voluntary re-acquisition of (old) nationality 1 C (2) What if state (re)-extends, but refugee does not want? Acquisition of new nationality 1 C (3) Where? state of asylum or resettlement clear - successor state of persecuting state extending -??? CESSATION - CHANGED CISRUMSTANCES CLAUSE GC 1 C (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality

CHANGED CIRCUMSTANCE CLAUSE ASSESSMENT OF THE CHANGE Executive Committee Conclusion No. 69 (XLIII) (1992), [I]n taking any decision ... States must carefully assess the fundamental character of the changes ... including the general human rights situation, as well as the particular cause of fear of persecution...an essential element in such assessment by States is the fundamental, stable and durable character of the changes, CHANGED CIRCUMSTANCE CLAUSE ASSESSMENT OF THE CHANGE Fundamental complete political change, genuine end of hostilities = elimination of root causes Enduring longer observation before return (Vilvarajah!); 12-18 months real peace, reconciliation starting Protection restored more than mere physical security or safety. Existence of a functioning government and basic administrative structures. CESSATION CLAUSES PROCEDURE, EXCEPTION Individual procedure should apply except in mass influx and temporary protection Burden of proof on the government Compelling reasons exception:

In case of atrocious forms of persecution: ex-camp or prison detainees, survivors or witnesses of violence against family members, including sexual violence, as well as severely traumatised ective, r i D n io t persons frequently suffering ualifica Q oach U r E p : p e a e s i S

from local population. ting th p o d a ) 3 11 ( Application of the compelling reasons exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees. This reflects a general humanitarian principle that is now well-grounded in State practice. UNHCR Guidelines, 2003, point 21 Exclusion clauses Crime Against Peace War Crime Crime Against Humanity Serious nonpolitical crime prior to admission Acts contrary to

the purposes and principles of the UN EXCLUSION CLAUSES FUNDAMENTALS Rationale in 1950-51: Non-deserving cases should not get protection (avoid abuse of the system) War criminals and other serious criminals should not remain unpunished _______________________________ Threshold: serious reasons for considering - less than balance of probabilities!? (G. Goodwin-Gill, p, 97) still debated _____________________________________________________________ Inclusion before exclusion? debate ______________________________ Exclusion removal Protection against torture, etc (broad non-refoulement) remains! CRIME AGAINST PEACE, WAR CRIME, CRIME AGAINST HUMANITY There is no accepted definition (Geoff Gilbert, p. 434) Crime Against Peace (Nrnberg, IMT Charter) = planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties... ICC: definition of aggression (see next slide) War Crime (IMT, Geneva Conventions and 1977 protocols, ICC, Tribunals /ICTY, ICTR/)

violations of the laws or customs of war murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity IMT Now: much wider, grave breaches of the Geneva Conventions ICC: 50 crimes (see separate sheet) Crimes against Humanity (as in ICC): murder, severe deprivation of physical liberty, torture, rape, and other inhumane acts of similar character. .. if ... committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, defined to mean a course of conduct involving the multiple commission of acts referred to... against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. AGRESSION AS DEFINED BY STATE PARTIES TO THE ICC, 2010 THE CRIME OF AGRESSION Article 8 bis of the Rome Statute: Crime of aggression = committing an act of agression 1. means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, act of aggression means the use of armed force by a State against the sovereignty, territorial integrity or

political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall qualify as an act of aggression ( 7 major groups of acts) SERIOUS NON-POLITICAL CRIME PRIOR TO ADMISSION No need for proof sufficient for a criminal trial, but there should be serious reasons for considering. It includes inchoate offences such as attempts, conspiracies and incitement. Difficulty: Is mere membership of a group adequate to exclude? Are all members complicit? Is constructive knowledge adequate to impose individual criminal responsibility? What if already served a punishment or long time passed? SERIOUS NON-POLITICAL CRIME PRIOR TO ADMISSION Outside the country of refuge prior to [the individuals] admission to that country as a refugee Terrorism UNGA Res.53/108 on Measures to Eliminate International Terrorism criminal acts intended or calculated to provoke a state of terror in

the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of political, philosophical, ideological, racial, ethnic, religious or other nature that might invoked to justify them. ______________________________________________________ Work in the UN on a comprehensive treaty still in progress Debates: self determination - state forces in armed conflict TERRORISM EU DEFINITION COUNCIL FRAMEWORK DECISION OF 13 JUNE 2002 ON COMBATING TERRORISM (2002/475/JHA) Art. 1 Terrorist offences and fundamental rights and principles 1. acts referred to below in points (a) to (i), , which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of: seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences: /see next slide/ TERRORISM EU DEFINITION

THE ACTS /IF COMMITTED WITH THE AIM AND CONSEQUENCES AS IN PREV. PARAS/ (a) attacks upon a persons life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons; (g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effectof which is to endanger human life; (i) threatening to commit any of the acts listed in (a) to (h). Presentation by Boldizsr ACTS CONTRARY TO THE PURPOSES AND PRINCIPLES OF THE UN Only state leaders or private persons (non- state actors) Terrorism here as well: what definition? any national legal definition? UN definition?

Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights, would fall under this category. UNHCR Guidelines, 2003 PROTECTION BY OTHERS GC 1 C (5) D. (1) This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. UNRWA = United Nations Relief and Work Agency (established in December 1949, by a GA resolution, operational since 1 May 1950) We (the United Nations Relief and Works Agency for Palestine Refugees in the Near East, UNRWA) provide assistance and protection for some 5 million registered Palestine refugees to help them achieve their full potential in human development http://www.unrwa.org/who-we-are (20151007) Territory Gaza West Bank Syria

Lebanon Jordan Number of registered 2015 refugees 2016 1.258.559 762.288 526.744 449.957 2.097.338 1,3 million 774.167 Same Same /0,45 mill 2.117.361

THE BOLBOL CASE JUDGMENT OF THE (GRAND CHAMBER) OF 17 JUNE 2010 (REFERENCE FOR A PRELIMINARY RULING FROM THE FVROSI BRSG (REPUBLIC OF HUNGARY)) NAWRAS BOLBOL V BEVNDORLSI S LLAMPOLGRSGI HIVATAL (CASE C-31/09) Ms Bolbols claim: coming from Gaza to Hungary, unable to return there she ought to be recognised automatically as a Convention refugee under 1 D 2nd para. The authority denies that the para entitles to automatic recognition it only entitles to application for status and makes the GC applicable GC 1 D 2nd para: When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention. According to Ms Bolbol, the purpose of Article 1D is to make

clear that where a person registered or entitled to be registered with UNRWA resides, for any reason, outside UNRWAs area of operations and, for good reason, cannot be expected to return there, the States party to the Geneva Convention must automatically grant him refugee status. para 31 of the judgment The authority denies automatic entitlement and insists that the case must be subjected to RSD (if not excluded right away) BOLBOL For the purposes of the Qualifications non-applicability rule A person receives protection or assistance from an agency of the United Nations other than the United Nations High Commissioner for Refugees, when that person has actually availed himself of that protection or assistance In essence: middle road (closer to H. authorities: if not actually availing of the UNRWA assistance then the Convention is applicable as to an asylum seeker without automatic recognition) MOSTAFA ABED EL KAREM EL KOTT, CHADI AMIN A RADI, HAZEM KAMEL ISMAIL V BEVNDORLSI S LLAMPOLGRSGI HIVATAL (HUNGARY) CASE C364/11 CJEU GRAND CHAMBER JUDGMENT, 19 DECEMBER 2012 UNHCR AND 5 MS, INCLUSING GERMANY, UK, FRANCE

INTERVENING Facts Three Plestinians from UNRWA camps in Lebanon (represented by the Hungarian Helsinki Committee) El Kott: lived in Ein El$Hilweh UNRWA refugee camp in Lebanon. His house had been burned down and he had been threatened; Radi:Home destroyed in Nahr el Bared UNRWA camp (Lebanon) once in Beirut police mistreated them, arrested them arbitrarily, tortured and humiliated them Ismail: lived with his family in the Ein El-Hilweh camp. During armed clashes between the Islamic Fatah and the Jund el$Sham, extremists wanted to use the roof of his house. When he refused, he was threatened with death and suspected as an enemy agent. After his departure his was vandalised. All the three got non-refoulement or subsidiary protection status from BAH but appealed for refugee status KOTT, RADI, ISMAIL - C364/11 Main question: interpretation of the exclusion clauses of the Geneva Convention and of the Qualification Directive and its consequences Essence of the judgment: -voluntary departure does not open the road to ref. status (end exclusion) ( 49) Exclusion (enjoying the protection of other agency) also extends to those who shortly before submitting an application were under UNRWA protection ( 52) -When does protection by UNRWA cease? (Main question: effectivity of the protection, not mere existence of UNRWA) -if UNRWA ceases to exist -Circumstances beyond the personal control and unconnected to the persons will (beyond his volition) force the person to leave ( 58)

-a Palestinian refugee must be regarded as having been forced to leave UNRWAs area of operations if his personal safety is at serious risk and if it is impossible for that agency to guarantee that his living conditions in that area will be commensurate with the mission entrusted to that agency. KOTT, RADI, ISMAIL - C364/11 -Whether departure was for reasons Beyond his control and Independent of his volition must be determined in a full individual procedure ( 64 ) The second sentence of Article 12(1)(a) of [the Qualification Directive] must be interpreted as meaning that the cessation of protection or assistance from organs or agencies of the United Nations other than the High Commission for Refugees (HCR) for any reason includes the situation in which a person who, after actually availing himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition. It is for the competent national authorities of the Member State responsible for examining the asylum application made by such a person to ascertain, by carrying out an assessment of the application on an individual basis, whether that person was forced to leave the area of operations of such an organ or agency, which will be the case where that persons personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission entrusted to that organ or agency. ( 82 (1)) KOTT, RADI, ISMAIL - C364/11

What is the consequence of finding thatUNRWA protection is no longer available for the person? Refugee status? Subsidiary protection? Simply a new determination procedure (the benefit of not being excluded)? refugee status where the condition relating to the cessation of the protection or assistance provided (UNRWA) is satisfied as regards the applicant, the fact that that person is ipso facto entitled to the benefits of [the] directive means that that Member State must recognise him as a refugee within the meaning of Article 2(c) of the directive and that person must automatically be granted refugee status, provided always that he is not caught by Article 12(1)(b) or (2) and (3) of the directive. ( 86 (2)) THANKS! BOLDIZSR NAGY E-mail: nagyboldi at elte.hu www.nagyboldizsar.hu

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