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Procedurile naionale de solicitare a adpostului

n mod normal, determinrile statutului de refugiat sau ale adjudecrilor privind adpostul sunt
efectuate de un departament sau de o agenie guvernamental desemnat Aceti oficiali ar trebui
s aib o cunoatere solid a legii refugiailor. n cele mai multe cazuri, oficialul va intervieva
solicitantul de azil pentru a-i evalua dovezile i credibilitatea. Sarcina este ca solicitantul de azil
s demonstreze c ndeplinete statutul de refugiat, iar solicitanii de azil sunt ncurajai s ofere
ct mai multe documente justificative. Documentele justificative pot lua forma rapoartelor de ar,
rapoarte de activitate ONG, articole de tiri, declaraii sau mrturia n persoan a martorilor.
In accordance with Article 31 of the 1951 Convention, States parties provide in their domestic law
that an applicants irregular entry (i.e., without an entry visa or other documentation) will not have
a negative effect on the asylum seekers application. See, e.g., Refugees Act (2014) Cap. 173
11(3) (Kenya). Some States, however, do place time restraints on how many days after entry into
their country an asylum seeker may make an application. Compare 8 U.S.C.
1158(a)(2)(B) (U.S.) (imposing a one-year filing deadline on asylum applications, although there
are some limited exceptions for extraordinary or changed circumstances) with National Refugee
Proclamation, No. 409/2004, art. 13 (Eth.) (stating that asylum applicants shall apply within fifteen
days of entry into Ethiopia). In addition to making a claim at the border, individuals in deportation
proceedings may also raise an asylum claim, provided their claim is timely.
If the official finds that the asylum seeker has a well-founded fear of persecution based on one of
the five grounds, he or she can grant the applicant asylum. Individuals granted asylum receive a
residence permit for themselves as well as one for any dependent relatives. See, e.g., The
Immigration and Refugee Protection Act, S.C. 2001, ch. 27, art. 95(1)(a) (Can.); 8 U.S.C.
1158(b)(3)(A) (U.S.). States provide that where the Government denies an asylum application, the
asylum seeker is to receive an explanation of the reasons for the denial. See, e.g., Refugees Act
(2014) Cap. 173 11(6) (Kenya). Asylum seekers have a right to appeal their negative decision.
Generally, an applicant may not be removed unless they have exhausted all of their available
remedies. See CESEDA, L731-3 (Fr.); but see, Human Rights Watch, France: Amend
Immigration Bill to Protect Asylum Seekers (noting that under French law appeal does not suspend
expulsion for those placed in the fast-track procedure).
Individuals who are ineligible for asylum may nonetheless be eligible for more limited forms of
protection. These include protection under Article 3 of the Convention against Torture, which
forbids States parties from extraditing or returning an individual to a country where they risk being
tortured or subjected to cruel, inhuman, or degrading treatment or punishment. States also grant
complementary forms of protection, such as withholding of removal, subsidiary protection, and
Temporary Protected Status to individuals who do not meet the definition of a refugee but whose
life or freedom would be in danger if returned to their country of nationality or country of habitual
residence. 8 U.S.C. 1254, 1231(b)(3) (U.S.);C.E.S.D.A. L712-1 (Fr.).
Refugee Status Determinations by the UNHCR
There are a number of States who host large refugee populations but who are either not a party to
the 1951 Convention and 1967 Optional Protocol or who do not have laws or policies in place to
address asylum claims. These States include a large number of countries in the Middle East and
Asia with significant refugee populations, including Egypt, Jordan, India, Malaysia, Lebanon,
and Pakistan. See UNHCR, States Parties to the 1951 Convention Relating to the Status of
Refugees and the 1967 Protocol. In such cases, refugee status determinations are carried out by
field offices of the United Nations High Commissioner for Refugees (UNHCR).

Laura

The refugee status determination (RSD) conducted by the UNHCR is similar to asylum
adjudications conducted by States. After registering with the local UNHCR office, asylum seekers
meet with an Eligibility Officer who examines their application and supporting documentation.
All asylum seekers have the right to an individual in-person interview and may be accompanied
by a legal representative. UNHCR, Procedural Standards for Refugee Status Determination under
UNHCRs Mandate 4.3.1-3 (2003). Asylum seekers are permitted to bring witnesses, but UNHCR
policy is that the testimony of witnesses should not be given in the presence of the applicant and
should never be given in the presence of other witnesses or third parties. Id. at 4.3.9. All applicants
are informed in writing of the Eligibility Officers decision. Id. at 6.1. Where the eligibility officer
has decided not to award refugee status, the applicant is entitled to an explanation of the negative
determination. Id. Applicants who have not been granted refugee status are entitled to an
appeal. Id. at 7.1.1.
All individuals granted refugee status as well as derivative relatives are issued a UNHCR Refugee
Certificate which stipulates that the holder is a refugee and is therefore entitled to protection,
including protection from refoulement. Id. at 8.1. Unfortunately, in practice, issuance of a Refugee
Certificate does not always guarantee an individuals ability to work or protect them from being
detained in their host country. See UNHCR, Global Focus: Malaysia 2016 Operational Context.
UNHCR normally determines refugee status on an individual basis; however, the agency will
afford prima facie refugee status to groups in cases where a large group of individuals has been
displaced and the need for protection is especially urgent. UNHCR, Resettlement Handbook, ch.
3, at 77 (2011). A recent example of this was the UNHCRs 2007 decision to give prima facie
refugee status to asylum seekers from southern and central Iraq. Id.
In addition to conducting RSDs and providing assistance to refugees and other persons of concern,
UNHCR facilitates resettlement to third countries where voluntary repatriation or local integration
is not feasible.

SELECTED CASE LAW


The following cases concern some of the most contentious issues in refugee law today.

Membership in a Particular Social Group


In Matter of Kasinga, 21 I&N 357 (BIA 1996), the U.S. Board of Immigration Appeals (BIA)
held that young women who were members of the Tchamba-Kunsuntu Tribe of northern Togo
who had not been subjected to female genital mutilation, as practiced by that tribe, and who
opposed the practice constituted a particular social group.
The criteria for identifying a particular social group in the U.S., however, are not clear.
In Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), the BIA held that members of a taxi-driver
cooperative in El Salvador did not constitute a social group because their membership was
not immutable. Meanwhile in Matter of C-A-, 23 I&N 951 (BIA 2006) the BIA held that non-
criminal, uncompensated informants in Colombia did not constitute a social group because
they did not share a common, immutable characteristic and because they were not a visible
group, as the very nature of their work required them to work in secret. In Benitez Ramos v.
Holder, 589 F.3d 426 (7th Cir. 2009), a case concerning a withholding of removal claim filed
by an El Salvadoran national, the U.S. Court of Appeals for the Seventh Circuit not only
rejected the social visibility requirement formulated by the BIA, it also criticized the BIA for
inconsistently applying its own criteria, pointing to the fact that the BIA itself did not always
require social visibility when evaluating whether individuals could be said to be members of
a particular social group. Particular social group has been defined since as a group of persons
all of whom share a common, immutable characteristic. See Cordoba v. Holder, 726 F.3d
1106, 1114 (9th Cir. 2013) (quoting Matter of Acosta, 19 I&N 211, 233 (BIA 1985)).

Georgiana

In the joined cases, Islam (A.P.) v. Secretary of State for the Home Department; Regina v.
Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.), [1999] (H.L.) (appeal taken
from England) (U.K.), the U.K. House of Lords held that women in Pakistan constituted a
social group, granting asylum to two women from Pakistan who had fled domestic
violence. Cf., Matter of R-A-, 22 I&N 906 (BIA 1999) (denying asylum to woman claiming
membership in social group identified as Guatemalan women who have been intimately
involved with Guatemalan male companions, who believe women are to live under male
domination). According to the House of Lords, whether such a broad definition of a social
group qualifies under the Convention will depend on evidence of how that group is treated in
the country of nationality or habitual residence at issue. Id. (citing In Re G.J. [1998] INLR
387 (New Zealand Refugee Status Appeals Authority), a New Zealand decision granting
asylum on the basis of membership in a particular social group to a homosexual from Iran.)
In A and Another v. Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 (Austl.),
the High Court of Australia rejected the asylum claim of Chinese nationals who claimed to
have a well-founded fear of persecution because they sought to have a second child despite
Chinas one-child only policy. The asylum applicants claimed fear of being subjected to
forced sterilization and argued they were members of a particular social group that consisted
of those who having only one child do not accept the limitations placed on them or who are
coerced or forced into being sterilized. The Court rejected this formulation as too circular
because it was not independent of the persecution feared. By contrast, the U.S. Congress has
recognized forced sterilization as a per se ground of persecution in its legislation. See 8 U.S.C.
1101(a)(42).
Non-refoulement and Countries of Transit
In Sale v. Haitian Ctr. Council, Inc., 509 U.S. 155 (1993),the U.S. Supreme Court held that
the U.S. was not in violation of its non-refoulement obligation when it returned Haitians
interdicted on the high seas because the Haitians were not within U.S. territory and therefore
the non-refoulement obligation did not apply. The Inter-American Commission on Human
Rights (IACHR) rejected this reasoning in IACHR, Report No. 51/96, Case 10.675, Haitian
Centre for Human Rights (United States), 13 March 1997. The IACHR held that the U.S.
had violated the petitioners right to seek asylum as well as their right to life, liberty, and
security of the person when it summarily returned interdicted Haitians many of whom were
subsequently arrested by Haitian authorities without providing them with a meaningful
opportunity to have their claims adjudicated. The IACHR also held that the U.S. had violated
their right to freedom from discrimination, noting that a much more favorable policy was
applied to Cubans and Nicaraguans.
In Abdi and Another v. Minister of Home Affairs (734/10) [2011] ZASCA 2 (15 February
2011) (S. Afr.), the South African court rejected the Governments arguments that two Somali
nationals one an asylum seeker and the other a recognized refugee being held in the
Inadmissibility Facility detention center at the airport while awaiting transfer to Kenya were
outside the scope of South African law. The Court held that it was immaterial that the two
had left South Africa for Namibia prior to their detention and, as illegal entrants, were subject
to a Namibian deportation order.
In ECtHR, Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment
of 21 January 2011, the ECtHR held that the Belgian government had violated an asylum
seeker from Afghanistans rights under Article 3 of the European Convention on Human
Rights by returning him to Greece, the country he had initially transited through, to adjudicate
his asylum claim because it was common knowledge that the Greek government lacked
adequate asylum procedures, thus, placing the applicant at risk of being returned to
Afghanistan where his life or freedom would be in danger.

Lavinia

In M70/2011 and M106/2011 v. Minister for Immigration and Citizenship & Anor, [2011]
HCA 32 (Austl.) the Australian High Court held that the Ministers declaration under 198A
of Australias Migration Act that asylum seekers who arrived on the excised territory of
Christmas Island could be sent to Malaysia where their asylum claims would be considered
was not valid because he had failed to adequately consider the factors set forth in 198A(i)-
(iv), namely that Malaysia was not a party to the Convention, had no domestic law
recognizing the status of refugees, and that the Arrangement between Australia and Malaysia
in which Malaysia would recognize refugees and adjudicate claims in accordance with
international standards was not legally binding.
In ACommHPR, Institute for Human Rights and Development in Africa (on behalf of Sierra
Leonean refugees in Guinea) v. Guinea, Communication No. 249/02, 36th Ordinary Session,
December 2004, the African Commission on Human and Peoples Rights (ACHPR) found
that a proclamation by then-President Lasana Cont made over national radio stating that
Sierra Leonean refugees should be arrested, searched and confined to refugee camps resulted
in widespread violence and discrimination against Sierra Leonean refugees to such a serious
degree that many were effectively forced to repatriate to Sierra Leone despite the ongoing
civil war. The ACHPR held that the treatment of Sierra Leonean refugees violated the
principle of non-refoulement and the Sierra Leoneans right to freedom from mass
expulsion. See also ACommHPR, Organisation mondiale contre la torture, Association
Internationale des jurists dmocrates, Commission internationale des jurists, Union
interafricaine des droits de lHomme v. Rwanda, Communications No. 27/89-46/90-46/91-
99/93, 20th Ordinary Session, October 1996 (expulsion of Burundi refugees living in Rwanda
without opportunity to contest their removal violated their rights under the African
Charter); but see ACommHPR, Curtis Francis Doebbler v. Sudan, Communication No.
235/00, 46th Ordinary Session, November 2009 (no violation where Sudan announced, in
coordination with UNHCR, cessation of Ethiopian refugee status following the end of the
Mengistu regime and where there were procedures in place for Ethiopians who still had a
well-founded fear of persecution to have their claims heard.)
Exclusion Clauses
TERRORISM
In Matter of S-K-, 23 I&N 936 (BIA 2006), the U.S. Board of Immigration Appeals (BIA)
held that a Burmese national who had provided approximately 700 dollars to the Chin
National Front, which was at the time considered a Tier III terrorist organization under U.S.
law, was inadmissible on the grounds that she had provided material support to a terrorist
organization. It was irrelevant that the U.S. Government supported the National Democratic
League, an ally of the Chin National Front, and that the Chin National Front fought against
the Burmese Government, to which the U.S. was opposed. In the wake of controversy
following the broad application of the material support bar to refugees and asylum seekers,
the U.S. Government has subsequently applied a discretionary waiver to several
organizations, including the Chin National Front, permitting refugees who had supported
these organizations to enter the U.S. as resettled refugees or claim asylum.
WAR CRIMES AND CRIMES AGAINST HUMANITY
Negusie v. Holder, 555 U.S. 511 (2009): The U.S. Supreme Court remanded to the BIA to
determine whether the Refugee Act, which incorporated the 1967 Optional Protocols
exclusion of individuals who had committed war crimes and crimes against humanity from
refugee status, included an exception for persecutory acts committed under duress. The Court
held that the BIA, in denying Negusie, an Eritrean nationals asylum application, had erred
in relying on Fedorenko v. United States, 449 U.S. 490 (1981), to find there was no duress
exception because Fedorenko concerned a claim arising out of the Displaced Persons Act
and not the 1980 Refugee Act.

Laurentiu

A.B. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, [2011]
IEHC 198 [2008] 667 Ir. Jur. Rep. (5th May, 2011) (H.Ct.) (Ir.): Irish High Court granted
leave to apply for judicial review where Refugees Appeals Tribunal had failed to conduct an
adequate assessment of whether a former Taliban commander had personally participated in
war crimes and crimes against humanity. The Court adopted the standard articulated in Joined
Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v. B und D [2010] ECR I-000,
whereby there is a permissive presumption that any person who occupied a high position
within a terrorist organization participated in the activities articulated in Article 1F of the
1951 Convention but authorities must nonetheless conduct an assessment to determine the
role the individual personally played in carrying out such acts.
PARTICULARLY SERIOUS CRIME
Matter of Carballe, 19 I&N 357 (BIA 1986): BIA held that aliens who had been convicted of
a particularly serious crime within the U.S. were presumptively dangerous to the community,
denying withholding of removal to a Cuban national. See also, Ali v. Achim, 468 F.3d 462
(7th Cir. 2006) (affirming BIAs holding that the Attorney General may consider other crimes
not listed in the INA to constitute a particularly serious crime for preclusion from withholding
of removal, rejecting contrary opinion of UNHCR guidelines, denying withholding of
removal to a Somali national.)
Conseil detat [CE] [Council of State] April 7, 2010, Rec. Lebon 2010, IX-X, 319840 (Fr.):
Council of State granted asylum to Iraqi national who had participated in an honor killing
while still a minor holding that the Commission des Recours des Rfugis should have
considered whether family pressure lowered his free will and whether his young age may
have made him especially vulnerable to such pressure. (Decision is only available in French
but an English summary can be found here.)
R (on the application of) ABC (a minor) (Afghanistan) v. Secy of State for the Home
Dept [2011] EWHC 2937 (Admin.) (U.K.): In determining whether there is material before
the Home Secretary that justifies a serious belief that the individual who claims protection
has committed a serious crime, the Home Secretary is required to look at all the circumstances
of the case including: the law of England and the law of the country where the crime is said
to have occurred, the individual factual matrix of the alleged crime including any potential
defenses, the age and circumstances of the applicant, and the likely punishment if found
guilty. To be considered a serious crime, there must be a high degree of culpability on the
part of the alleged offender. Here, the Home Secretary erred in finding there were serious
grounds for believing the applicant had committed a particularly serious crime when she had
found that the applicant, a minor from Afghanistan, had likely committed the alleged crime
unintentionally and failed to consider his age and circumstances.

ADDITIONAL RESOURCES
UNHCR Handbook for the Protection of Internally Displaced Persons
U.N. Office for the Coordination of Humanitarian Affairs
Guiding Principles on Internal Displacement
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and 1967 Protocol relating to the Status of Refugees
International Organization for Migration, an intergovernmental organization which, in
addition to other activities, assists governments in developing migration policies and helps
return individuals whose asylum claims have been rejected
U.S. Committee for Refugees and Immigrants, Our Work with Refugees
UNHCR, Figures at a Glance
UNHCR, Asylum in the European Union: A Study of the Implementation of the Qualification
Directive
UNHCR RefWorld, database for searching asylum law and cases from a variety of countries

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