Refugee law is the branch of international law which deals with the rights and duties States have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law. The discussion forms part of a larger debate on the fragmentation of international law. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation IHL or to certain groups of people including refugees refugee law , children the Convention on the Rights of the Child , and prisoners of war the Geneva Convention III.
According to the original Refugee Convention and Protocol , refugee children were legally indistinguishable from adult refugees. Although the Convention on the Rights of the Child was not specific to the rights of refugee minors, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of In , the UNHCR Guidelines on Refugee Children were published, specifically designed to address the needs of refugee children, officially granting them internationally recognized human rights.
In , however, the UN signed an additional treaty, the Convention on the Rights of the Child CRC , which defined the rights of children and bound its signatories to upholding those rights by international law. In particular, it extends the protection of refugee children by allowing participating nations the capacity to recognize children who do not fall under the strict guidelines of the Convention definition, but still should not be sent back to their countries of origin.
It also extends the principle of non-refoulement to prohibit the return of a child to their country "where there are grounds for believing that there is a real risk of irreparable harm to the child. There is a variety of definitions as to who is regarded as a refugee, usually defined for the purpose of a particular instrument. The variation of definitions regarding refugees has made it difficult to create a concrete and single vision of what constitutes a refugee following the original refugee convention.
Article 1 of the Convention as amended by the Protocol defines a refugee as:. The Protocol removed the temporal restrictions, which restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January ", and the geographic restrictions which gave States party to the Convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere". However, it also gave those States which had previously ratified the Convention and chosen to use the geographically restricted definition the option to retain that restriction.
In , a group of Latin American governments adopted the Cartagena Declaration , which like the OAU Convention, added more objectivity based on significant consideration to the Convention. The Cartegena Declaration determine that a 'refugee' includes:. Persons who flee their countries because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. Additionally, US Law draws an important distinction between "refugees" and "asylees".
A refugee must meet the definition of a refugee, as outlined in the Convention and be of "special humanitarian concern to the United States. If an individual who meets the definition of a refugee, and is seeking admission in a port of entry is already in the US, they are eligible to apply for asylum status.
The term displaced person has come to be synonymous with refugee due to a substantial amount of overlap in their legal definitions. However, they are legally distinct, and convey subtle differences. In general, displaced person refers to "one who has not crossed a national border and thus does not qualify for formal refugee status. Refugee law encompasses both customary law, peremptory norms , and international legal instruments. The only international instruments directly applying to refugees are the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.
Both the Convention and the Protocol are open to states, but each may be signed separately. These instruments only apply in the countries that have ratified an instrument, and some countries have ratified these instruments subject to various reservations. Various regions and countries have different variations of refugee law.
They all stem from the Convention and the Protocol which relates to refugee status. The United States became a party to this protocol in Despite playing an active role in the drafting of the Convention on the Rights of the Child , the United States has yet to ratify the treaty, making it the only nation in the UN that is not party to it. Although the aftermath of World War II brought forth a refugee crisis, the large influx and resettlement of Indochinese refugees led to the passage of the Refugee Act of This law incorporated the International Convention's definitions of a refugee into U.
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An important aspect of this law is how an individual goes about applying for status. A person may meet the definition of refugee but may not be granted refugee status. If the individual is inside of the U. The first step of being granted this status is to receive a referral to the U. As countries experiment with linking asylum and labour migration, knowledge exchange is essential.
Policy-makers, researchers and practitioners can critically examine current practices to better understand the potential and risks of this nascent policy area. The aim of this blog post is to present five current practices that link asylum and labour migration and bring them into conversation with one another, taking stock of the motives behind their introduction and their benefits and pitfalls.
A New Paradigm for the European Asylum Regime
The selection of cases — current practices in Australia, Canada, Germany and Sweden — is based on the expertise of the authors and their networks. We categorize them as pre-arrival and post-arrival, as a pathway shift from asylum to labour migration can occur before or after a person arrives in a destination country. Comparing these practices, we come up with two main claims that we put up for further discussion. The main paradox of the current international refugee regime is that refugees usually must enter a receiving country irregularly to access asylum.
There are few other options. If asylum seekers and refugees had the opportunity to access existing or newly developed labour migration pathways, this could benefit both them and receiving countries. For asylum seekers and refugees, pre-arrival programmes could allow them to enter legally and safely without undertaking a potentially deadly journey , with full work rights, and without prolonged waiting periods in which their asylum claim is being assessed.
For receiving countries, these programmes could relieve pressures on their spontaneous arrival capacities depending on geography — provided that the programmes are easily accessible and available for many of those who would in their absence enter irregularly. They could increase security and predictability of refugee reception, while filling skills gaps and easing demographic challenges, and therefore might be more easily communicated to the public than spontaneous arrival.
Such programmes could also help to alleviate pressure on countries of first asylum like Turkey, Uganda and Lebanon, which carry a disproportionately high share of responsibility for refugees globally. However, these policies also spark criticism: As any immigration programme that selects persons based on their human capital or talent, pre-arrival programmes could be thought of as cherry-picking by destination countries, which could cause brain drain and increase inequality in origin countries. If seen as indistinguishable from resettlement programmes, they could also cause tension or feelings of injustice within refugee communities.
The WBR was introduced as a temporary measure in late for a period of five years.
It opened the German labour market to nationals from the six Balkan countries Albania, Bosnia and Herzegovina, Kosovo, Montenegro, Macedonia, and Serbia — without any minimum skill or qualification requirements. Applicants merely need a valid job offer by an employer in Germany, and pass a standard labour market priority check for third country nationals.
Eleven International Publishing - Human Rights of Asylum Seekers in Italy and Hungary
Persons who had received asylum-seeker benefits in Germany within 24 months before applying were not eligible. Uniquely, the WBR targets countries that are sources of asylum seekers to Germany, rather than countries hosting large refugee populations. According to a recent research report , the key assumption behind the introduction of the WBR was that legal pathways would lead to a decrease in numbers of spontaneous arrival asylum seekers.
After the introduction of the regulation, asylum applications from the six Balkan countries indeed dropped sharply, by over 90 per cent. At the same time, more than However, according to the report authors, it is impossible to disentangle the effects of the WBR on asylum applications from other potential explanatory variables. Developed as a model of community sponsorship of refugees, this programme offers the opportunity for persons aged years who possess a job offer or relevant skills and are willing to work in rural Australia to enter the country as resettled refugees.
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- Global Changes in Asylum Regimes.
The policy has been widely criticized primarily because it does not provide additional numbers to the Australian resettlement programme, but takes away up to 1. Critics also view the CSP as shifting resettlement responsibility from the government to private citizens instead of enabling them to support the arrival of additional refugee families.
Another critique is that the costs for obtaining a visa are relatively high approx. Currently, refugees living in countries of first asylum enter Canada predominantly through the resettlement programme. Those who are eligible from a human capital perspective could theoretically apply instead as skilled immigrants; however, there are many obstacles in the way. For instance, refugees may lack valid passports or the finances to apply for labour migration programmes.
The EMPP aims to achieve a better understanding of the barriers facing refugee applicants in order to inform policy development in this area. To date, across Canada, job offers have been made to seven refugee candidates through this pilot. It is unknown if Canada will develop a new skilled refugee programme based on the findings of the pilot, or instead seek changes across all current economic programmes to make them more accessible to refugee applicants.
How Does the U.S. Refugee System Work?
Among these three pre-arrival practices, the Australian model seems to be the most controversial one. While all three programmes principally seem to combine the interests of refugees and migrants, origin and destination countries, the Australian CSP cuts from existing resettlement places and thereby confirms concerns of a destination country shifting selection criteria from protection need towards economic potential. From an analysis of these three examples stems our first main claim, that pre-arrival programmes linking asylum and labour market criteria should be separate and additional to resettlement including private refugee sponsorship programmes whose principal purpose is protection.
In other words, they may be better implemented as labour migration policies with a protection impact, rather than protection policies. This distinction emphasizes that they ought to be complements, not substitutes to existing protection efforts.