Assignment On Refugees Protection in US & UK


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Assignment On Refugees Protection in US & UK

  1. 1. SOUTH E A S T UNIV E R S I T Y DE P T . OF LA W & JUST I C E Course Title: International Refugee law Course Code: LLBH 4212 Assignment On Refugees Protection in US & UK
  2. 2. U.S Asylum and Refugee Policy:The United States offers Asylum and Refugee protection based on aninherent belief in human rights and in ending or preventing the persecutionof individuals. Asylum is a precious and important protection granted byfederal law to qualified applicants who are unable or unwilling to return totheir country of nationality because of persecution or a well-founded fear ofpersecution. Claims of persecution must be based on at least one of fiveinternationally recognized grounds: race, religion, nationality, membershipin a particular social group, or political opinion. The Illegal ImmigrationReform and Immigrant Responsibility Act of 1996 provided that someactions taken under coercive population control programs constitutepersecution on account of political opinion. A maximum of 1,000 aliens perfiscal year may be granted asylum or admitted as a refugee under thisprovision.In addition to asylum and refugee protection, withholding of removal isavailable to refugees in the United States who can show likelihood theirlives or freedom would be threatened if they were returned to the country inquestion. Withholding of removal is in some ways similar to asylum, but isgoverned by a higher standard, requiring applicants to establish that it ismore likely than not that they would be persecuted. Unlike asylum, however,once this standard is met, there is no discretion to deny withholding and theapplicant may not be returned to the country.Asylum /Refugee Application ProcessAsylum and refugee applicants are both adjudicated under the same legalstandard, but differ in terms of where they are located. The potential asyleeis in the United States or applying for admission at a port of entry, and thepotential refugee is outside the United States. Aliens in the United States orat a port of entry can apply for asylum by filing an Application for Asylum,Form I-589, with either the Immigration and Naturalization Service (INS) orthe Executive Office for Immigration Review (EOIR), the Department ofJustice agency that comprises the immigration courts and Board ofImmigration Appeals (BIA). Applicants can obtain a Form I-589 and filinginstructions from an asylum office, an INS district office or by calling theINS toll-free request line at 1-800-870-3676. A Form I-589 must be filed
  3. 3. within one year after the aliens arrival in the United States, unlessthere exist changed circumstances affecting the applicants eligibility forasylum, or extraordinary circumstances relating to the delay in filing.People overseas who are eligible for consideration by the U.S. refugeeprogram apply by filing a Registration for Classification as a Refugee, FormI-590."Affirmative" Asylum Applications with INS:An alien who is in the United States and who is not in immigrationproceedings may apply for asylum by filing a Form I-589 with theappropriate INS regional ServiceCenter by mail. The Service Center sends the applicant a receipt notice andrefers the applicant to one of eight asylum offices around the country. Theoffices are staffed by approximately 300 specially trained members of theAsylum Officer Corps (AOC), which has been adjudicating asylumapplications filed with INS since 1991. Asylum claims brought before theAOC are "affirmative" applications filed voluntarily by the alien. If anasylum officer denies the asylum application of an alien in lawful status, theapplicant can reapply for asylum if he/she is later placed in removalproceedings before an immigration judge. Aliens who are in unlawful statusand cannot be granted asylum by the AOC are referred to an immigrationjudge, before whom they can again raise their asylum claim. Affirmativeasylum applicants are not placed in detention while their application isconsidered.Although the Form I-589 is an application for both asylum and withholdingof removal, generally it is immigration judges, and not asylum officers, whoadjudicate applications for withholding of removal during removalproceedings in which it has been determined that an alien is removable."Defensive" Asylum Applications with EOIR:The Executive Office for Immigration Review has exclusive jurisdictionover the cases of aliens who are placed in removal proceedings and thenseek asylum. Asylum claims filed before EOIR are "defensive" applicationsraised in removal proceedings before immigration judges as a defenseagainst removal. Aliens who seek asylum as a defense against removalmay be detained for being in the United States illegally until an
  4. 4. immigration judge rules on their asylum claim. Their detention,however, is not due to their asylum claim.Asylum Process for Certain Arriving Aliens:The 1996 law mandates that aliens who arrive at a U.S. port of entry withouttravel documents or who engage in fraud or material misrepresentation bedetained and placed in expedited removal. Aliens who express or indicate afear of persecution during the expedited removal process receive a "crediblefear" interview with an INS asylum officer. Aliens found to have a crediblefear are referred for ordinary removal proceedings in which they may applyfor asylum before an immigration judge. Aliens determined to have acredible fear are detained because they remain in removal proceedingsuntil an immigration judge rules on their asylum claim. Their detentionalso is not due to their asylum claim.Parole:INS district directors have discretionary authority to parole, or release, analien in proceedings from detention. In determining whether release isappropriate on a case-by-case basis, district directors must decide whetherthe alien’s release would serve an urgent humanitarian need or significantpublic benefit and whether the alien has established his/her identity, poses athreat to the community, demonstrates family ties in the community,presents evidence of a credible asylum claim, or poses a risk of flight.Different, more restrictive criteria govern the custody of certain criminalaliens.Overseas Refugee Processing:Each year the President, in consultation with Congress, determines thenumber of refugees who may be admitted to the United States during thecoming fiscal year. This annual ceiling is divided among five regional sub-ceilings -- Africa, East Asia, Europe, Latin America/Caribbean and the NearEast/South Asia. For fiscal 1999, the President and Congress havedetermined that up to 78,000 refugees may be admitted to the United States,with those admissions allocated among the five regions as follows: • Africa – 12,000
  5. 5. • East Asia – 9,000 • Europe (includes 3,000 unfunded) – 48,000 • Latin America/Caribbean – 3,000 • Near East/South Asia – 4,000 • Unallocated – 2,000The Europe, Bosnia and former Soviet Union ceiling includes 3,000unfunded numbers allocated to the former Soviet Union for use as needed,provided that resources within existing appropriations are available to fundthe cost of their admission. The 2,000 unallocated numbers will be allocatedas needed to meet regional shortfalls. Unused admissions numbers from oneregion may be transferred to another region where the need for admissionsnumbers exceeds the sub-ceiling.Access to the U.S. refugee program is not open-ended. To file a Form I-590,a refugee applicant must first be found to be eligible for a refugee interview.The question of whether applicants are eligible for a refugee interview isgoverned by their nationality and whether they come under one of theprocessing priorities used to manage the U.S. refugee program. Like thesetting of the admissions’ ceiling, the designation of eligible nationalitiesand processing priorities is decided annually as part of the consultationsprocess.Traditionally, refugee applicants are interviewed in third countries afterhaving fled their country of persecution. Individuals who have fled theircountry and believe themselves to be at risk if returned should contact thenearest office of the United Nations High Commissioner for Refugees(UNHCR). That office will make a decision as to whether the individualsrequire protection and where that protection may be provided. The U.S. legaldefinition of refugee also allows for in-country refugee processing incountries so designated by the President. For fiscal 1999, the U.S. refugeeprogram will operate in-country programs in Havana, Ho Chi Minh City andMoscow. Those eligible for Moscow processing are nationals or habitualresidents of the former Soviet Union as it existed on September 2, 1991.The United Kingdom’s Asylum System:The United Kingdom (UK) asylum system is notorious for its complexity.Asylum seekers must navigate a refugee system with three different types ofprotection, each with a different set of criteria and rights and obligations.
  6. 6. They are also subject to a multi-step, lengthy application procedure,beginning with eligibility screening, followed by an interview, andpotentially followed further by up to six levels of appeal and judicial review.Throughout this process, most asylum seekers are entitled to limitedfinancial support. However, some categories of asylum seekers are leftdestitute. Successful asylum seekers are only entitled to temporaryprotection for a period of five year terms. After the five years elapses, theymay then apply for permanent protection. In addition to its complexity, the UK asylum system has been criticized forits poor initial decisions. The asylum system is managed by the UK BorderAgency (UKBA). Each case is assigned to a UKBA official (Case Owner)who oversees the case from the initial interview and decision. Critics allegethat these Case Owners are poorly trained and are influenced by institutionalbiases. A high number of initial decisions rendered by the Case Owners areoverturned and returned for rehearing.Although the UKBA has stated that its objective is to provide a system thatis “fast, fair and firm”,1 it has been moving towards a system that effectivelyexpedites, limits or discourages asylum claims. For example, it has recentlycreated a fast track procedure for asylum seekers that are deemed to be aflight-risk or that have “straightforward claims.” These asylum seekers aredetained and their claims are decided very quickly.Critics allege that these fast track procedures result in a significant numberof errors. Moreover, like other European countries, the UK has restrictedeffective access to its asylum system through measures such as overseasinterdiction, carrier sanctions, the European Schengen Agreement,imprisonment for the use of false documents and aggressive detentionpolicies for some asylum categories. Still, on average, the UK receives morethan three times as many asylum seekers as Canada. Critics of Canada’srefugee system point to the UK’s lower acceptance rates as evidence ofCanada’s excessive generosity. However, the UK system is, as discussedabove, complex, lengthy, and at times, unfair, and as result, often excludeslegitimate refugees. Furthermore, UK has been less successful than Canadaat removing failed asylum seekers.
  7. 7. Types of Protection:The United Kingdom offers 3 different types of refugee protection: 1. Asylum under the 1951 United Nations Refugee Convention:Asylum is principally granted under the 1951 U.N. Convention. To meritprotection under the Convention, claimants must meet the criteria set out inthe Convention definition of a refugee: they must (1) be outside theircountry of origin (2) have a well-founded fear of persecution (3) due toreasons of race, religion, nationality, political opinion or membership in aparticular social group and (4) are unable or unwilling, by reason of theirfear, to secure protection from their country of origin.Convention Refugees (CRs) are at first granted temporary protection for aperiod of five years. They can also apply to have their spouse and childrenunder the age of 18 join them in the UK During this five year period, theUKBA may review a CR’s case if the CR has acted in a way that violates theConvention or if the conditions in the CR’s home country have changed. Insome instances, the CR’s status may be revoked and the CR may be issued adeportation order.When the five year period of temporary protection elapses, CRs may applyto renew their temporary residence permit or may apply for permanentresidence (Indefinite Leave to Remain). The UKBA will then decide to grantthem permanent status, extend their temporary status, or revoke theirtemporary status depending on the current conditions in their countries oforigin. prior to 2005; the process of securing permanent protection wassimpler. Claimants who were recognized as CRs were automatically grantedpermanent residence (Indefinite Leave to Remain). Under this formerregime, the status of CR was more secure, rendering integration somewhateasier.2) Humanitarian Protection:Asylum seekers who do not meet the criteria under the 1951 U.N. RefugeeConvention may qualify for Humanitarian Protection (“HP”). Under theImmigration Act, HP may be granted to asylum-seekers who face a serious
  8. 8. risk to their life or person in their home countries. Like ConventionRefugees, those who are granted HP status have the right to remain in theUK for five years and to apply for their spouse and children under the age of18 to join them. During this five year period, the UKBA may review anindividual’s HP status if the individual has acted in a way that violates theConvention or if the conditions in the individual’s home country havechanged. The UKBA may then decide to leave the HP status in place,change the HP status to Discretionary Leave to Remain (“DLR”), or revokethe HP status and require the individual to leave the country. After the fiveyears have elapsed, individuals with HP status may apply to remainindefinitely in the UK and will be allowed to do so if they are still in need ofprotection.3) Discretionary Leave to Remain:If asylum-seekers do not qualify for Convention Refugee (CR) orHumanitarianProtection (“HP”) status, the UKBA may grant them Discretionary Leave toRemain(“DLR”) under the Immigration Act. DLR is granted for a period of threeyears or less to an asylum-seeker who:  makes a claim under article 3 or article 8 of the European Convention of Human Rights;  is an unaccompanied child;  is excluded from refugee status or HP because of criminality or security reasons;  demonstrates particularly compelling reasons why they should not be  Deported.At the end of three years, the UKBA will review the case and, in somecircumstances, may extend DLR for a further three years. After an individualhas had DLR status for six years, the UKBA may then either grant thempermanent residence or deport them. Once again, the UKBA will base theirdecision on the current conditions in the individual’s home country.The UKBA will not grant permanent residence if the individual wasineligible for refugee status for reasons of criminality or national security. Inthis case, the individual must leave the UK. Both HP and DLR wereintroduced on April 1, 2003. These categories were intended to replace theformer category of Exceptional Leave to Remain (“ELR”), which wasperceived as overly generous. The UK government has explicitly promoted
  9. 9. the regime under HP and DLR as more restrictive. Like HP and DLR, ELRwas granted to those who did not qualify for refugee status but could not bereturned to their home countries. Reasons barring removal includedcompelling compassionate or humanitarian grounds, the United Kingdom’sobligations under the European Convention on Human Rights, the inabilityof a country to give proper reception to unaccompanied children, and delaysof seven years or more in decision-making that were not the asylum seekersfault. ELR could be granted for up to a four year period at a home officer’sdiscretion. At the end of this four year period, an individual could apply forpermanent residence (Indefinite Leave to Remain).The UK’s role in the international refugee protection system:In recent years, global refugee numbers have been increasing, from 8.7million in 2005, 9.9 million in 2006 to 11.4 million by the end of 2007.Most refugees flee to neighboring countries and remain in their region oforigin. At the end of 2007, the Middle East and North Africa region hosted aquarter of all refugees (approx. 2,700,000 refugees), primarily from Iraq,while Europe hosted 14% (approx. 1,580,000 refugees). Pakistan is thecountry with the single largest number of refugees (2 million).Between them, Syria and Jordan host over 2 million Iraqi refugees. Incomparison, the UK hosts less than 300,000 representing 2.6% of theworld’s refugees. Global asylum numbers are also increasing.Approximately 647,000 asylum applications were made around the world in2007 – an increase of 5% from 2006 and the first rise in 4 years. EUcountries received 222,900 new applications in 2007 – an 11% increase on2006. The UK received 27,900 asylum claims in 2007, just over 8% of thetotal received in industrialized countries and the lowest level recorded since1989. By contrast, in 2003, the UK received 60,050 applications.Some Western European countries such as Austria, Germany and Francehave seen a steady decrease in asylum numbers. Figures in Germany reacheda 30-year low in 2007 with 19,200 individuals applying for asylum. InSweden, however, the 2007 level is the third highest ever witnessed in thecountry after 1992 (84,000 claims) and 1993 (37,600 claims). This increasehas been caused primarily by the continuous arrival of large numbers ofIraqi asylum-seekers. Major increases have been witnessed at the externalborders of the EU, in Greece, Italy, Spain and Turkey.
  10. 10. Greece has emerged as a major new recipient of asylum-seekers in theindustrialized world. In the course of 2007, 25,100 asylum applications werelodged in the country, almost 13,000 more than in 2006, constituting fivetimes more applications than in 2004 (4,500 asylum claims). Airline LiaisonOfficers (ALOs) and juxtaposed controls – UK immigration officers postedat train and ferry ports in France and Belgium - are just two of the measuresused to control irregular migration overseas.The UK has approximately 40 ALOs posted in over 30 locations around theworld. In the last 5 years, UK ALOs have prevented more than 150,000inadequately documented migrants from reaching the UK. Juxtaposedcontrols stopped 16,898 people crossing the channel irregularly in 2006. It isnot know how many of those stopped were fleeing persecution. In Kent thenumber of irregular immigrants arriving since 2002 has reduced by 88%.Since FRONTEX became fully operational in 2006, it has intercepted over50,000 irregular migrants in 33 different operations, and the UK wasinvolved in approximately half of these operations. FRONTEX does notprovide any breakdown of whether those intercepted wished to/did seekprotectionHow unequal is the current distribution of Refugee Burdens?When comparing their relative contributions to refugee protection, stat arelikely to disagree about how such contributions should be assessed. Bylooking at some of the most directly linked burdens/responsibilities thatcountries are faced with as a result of international refugee flows, it ispossible to arrive at some approximations of relative responsibilities thatcountries are faced with or prepared to accept. Table 1 below tries to do justthat.It presents UNHCR data on asylum and resettlement on 15 OECD countries(columns 1&2) for the period 1994-2002. Column 3 lists countries’ relativeburdens on the basis of asylum applications received and resettlement casesaccepted (controlling for different population size of host countries).Switzerland, the Netherlands and Belgium have had the largest relativenumbers of asylum applications over that period, while Japan, Spain andItaly had the lowest.
  11. 11. States have a substantial degree of discretion in how they deal with asylumseekers on their territory. When dealing with asylum seekers, countries havegenerally three options. (1) Recognizing their asylum claims, i.e. grantingthem refugee status under the Geneva Convention; (2) giving them someother protection status (such as ‘exceptional leave to remain’) that allowsthem to legally live and (usually) work in the country, and (3) to reject anasylum claim and send the applicant back to their home country. Column 6in the table shows a substantial degree of variation in states’ willingness toaward asylum-seekers in their territory some form of temporary orpermanent status (Convention or subsidiary protection status). On average,the Netherlands, Denmark and Canada were the most generous hostcountries, while Japan, Germany and Australia were the toughest countrieswhen handling requests for protection.Why Refugee Burdens are unequally distributed?When trying to account for the current distribution of refugee burdensamong countries, three principal explanations can be identified. In reverseorder of importance, these are related to free-riding opportunities, stateinterests and variation in pull-factors.Free-Riding OpportunitiesSimilar to the NATO burden-sharing debate, there have been protests andfree-riding accusations from the main receiving countries as well as resultingthreats by some states to opt out of the Geneva Convention for theProtection of Refugees to which all OECD countries are signatories. Anumber of scholars, most prominently Suhrke (1998), have suggested thatrefugee protection has (at least in part) important ‘public good’characteristics. Suhrke argues that the reception of displaced persons can beregarded an international public good from which all states benefit. In her view, increased security can be regarded as the principal (non-excludable and non-rival) benefit, as an accommodation of displaced
  12. 12. persons can be expected to reduce the risk of them fuelling and spreading theconflict they are fleeing from. A public good is defined by its properties ofnon-excludability and non-rivalry. It is these properties which set it apartfrom a private good. The provision of a public good, such as the additionalsecurity provided by refugee protection, benefits not only countries whichcontribute to the protection of displaced persons but these benefits are alsoextended to other actors at no marginal cost. One might therefore expectsubstantial free-riding opportunities, similar to those that have beenobserved with regard to the provision of other international public goodssuch as collective defense. Unlike in the case of NATO burden-sharingwhere empirical evidence suggests Olson and Zeckhauser (1966) that largercountries have been exploited by small countries, no similar picture emergeswhen analyzing the refugee reception burden. In fact, the evidence presentedin Table 1 suggests that in the case of the reception of refugees by OECDcountries, it is the smaller states which appear to shoulder disproportionateburdens.Refugee Integration and Employment Service:Refugee Action operates the Refugee Integration and Employment Service(RIES) in three UK regions: the North West, the south west and the southeast / south central (not including London).What is it?This new service provides support to recent refugees to help them to settleinto UK society and to find employment. General advice and supportregarding issues such as housing, benefits and access to English classes isavailable for six months. Specialist employment advice and help to assistrefugees in job searches, job applications, CV-writing and interviewtechniques is available for up to a year. A mentoring service, which matchesrefugees with local mentors who can assist them in the achievement ofspecific employment or social goals, is also available for up to a year.
  13. 13. Who is it for?The service is available to all refugees who have been granted "Refugee"status or "Humanitarian Protection" status since 1 October 2008 and whoseasylum claim was dealt with under the New Asylum Model (i.e. those wholodged an asylum claim since March 2007).For those refugees who were granted discretionary leave under the NewAsylum Model or who were granted any type of leave by the legacy caseresolution team in Croydon, Move-On advice for a more limited period oftime is available through our One-Stop asylum advice service at theBristol, Portsmouth, Liverpool, Manchester, Leicester and Nottinghamoffices.RIES in the North WestIn the north-west, the service is operated directly from our Liverpool andManchester offices and as outreach in Bolton, Blackburn, Bury and Wigan.The service is also supported by Manchester Refugee Support Networkwhich provides volunteer advocates.RIES in the south westIn the south-west, the service is operated directly from our Bristol office andthrough partner organisations in Gloucester and Swindon. In Gloucester theservice is provided by Gloucester Action for Refugees and Asylum Seekers(GARAS) and in Swindon by Swindon Citizens Advice Bureau and theHarbour Project. We also work in partnership with Bristol Citizens AdviceBureaux on some cases.RIES in the south eastIn the south-east and south central, the service is operated directly from ourPortsmouth office, an outreach in Southampton, and through partnerorganisations in Ashford, Brighton, Milton Keynes, Reading, Swanley andSlough. Our partner organisations are Ashford Citizens Advice Bureau,Brighton Voices in Exile, Milton Keynes Citizens Advice Bureau, ReadingRefugee Support Group, Slough Refugee Support and Swanley & SevenoaksCitizens Advice Bureau.RIES throughout the UK
  14. 14. The Refugee Integration and Employment Service are funded by the UKBorder Agency in all 12 government office regions. Other organisationsprovide the service in other regions.Conclusion:It has been shown that the distribution of refugee burdens in Europe ishighly unequal, even when different reception capacities of countries aretaken into account and it has been argued that this distribution is largely dueto structural factors beyond states control. It has also been argued that giventhe likely adverse consequences from a race to the bottom by states tryingto avoid disproportionate burdens, the development of an effective European(or even more far-reaching) burden-sharing regime appears to be in theinterest of both refugees and countries of destination.The establishment of such a regime does not have rely on appeals tosolidarity but can be promoted by appealing to clear (albeit varying) benefitsthat can accrue to states in terms of increased security, lower costs, ensuredadherence to international obligations, etc.Finally, the discussion above makes the case for a more a comprehensiveburden sharing approach. It has been argued that policy harmonization andquota-based burden-sharing regimes on their own are unlikely to providesatisfactory results. By outlining a number of market-based approaches, thepaper hopes to stimulate the search for more effective burden-sharingsolutions. Any proposal for a refugee burden-sharing regime can expected tobe controversial but it seems that the EU provides a quite unique opportunityto further explore the potential benefits of market based burden-sharing inconjunction with ongoing efforts of policy harmonization which can help tosafeguard compliance with established human rights standards.Whereas past proposals for international burden-sharing regimes havesometime been rightly criticized for undermining individual rights and forshifting burdens to the South, this paper suggests that the establishment ofregional burden-sharing regimes, like the one discussed here for the EU, canbring substantial benefits with fewer shortcomings, while also being
  15. 15. politically more feasible. Given the deplorable developments of recent yearsthat have led to the current refugee dilemmas, the need to further explorenew options to build a more equitable, efficient and effective internationalrefugee burden-sharing regime appears to be more urgent than ever.