SOUTHEAST UNIVERSITYDEPT. OF LAW & JUSTICE

Course Title: International Refugee lawCourse Code: LLBH 4212

Assignment OnRefugees Protection in US

& UK

U.S Asylum and Refugee Policy:

The United States offers Asylum and Refugee protection based on an inherent belief in human rights and in ending or preventing the persecution of individuals. Asylum is a precious and important protection granted by federal law to qualified applicants who are unable or unwilling to return to their country of nationality because of persecution or a well-founded fear of persecution. Claims of persecution must be based on at least one of five internationally recognized grounds: race, religion, nationality, membership in a particular social group, or political opinion. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provided that some actions taken under coercive population control programs constitute persecution on account of political opinion. A maximum of 1,000 aliens per fiscal year may be granted asylum or admitted as a refugee under this provision.

In addition to asylum and refugee protection, withholding of removal is available to refugees in the United States who can show likelihood their lives or freedom would be threatened if they were returned to the country in question. Withholding of removal is in some ways similar to asylum, but is governed by a higher standard, requiring applicants to establish that it is more likely than not that they would be persecuted. Unlike asylum, however, once this standard is met, there is no discretion to deny withholding and the applicant may not be returned to the country.

Asylum /Refugee Application Process

Asylum and refugee applicants are both adjudicated under the same legal standard, but differ in terms of where they are located. The potential asylee is in the United States or applying for admission at a port of entry, and the potential refugee is outside the United States. Aliens in the United States or at 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) or the Executive Office for Immigration Review (EOIR), the Department of Justice agency that comprises the immigration courts and Board of Immigration Appeals (BIA). Applicants can obtain a Form I-589 and filing instructions from an asylum office, an INS district office or by calling the INS toll-free request line at 1-800-870-3676. A Form I-589 must be filed

within one year after the alien's arrival in the United States, unless there exist changed circumstances affecting the applicant's eligibility for asylum, or extraordinary circumstances relating to the delay in filing. People overseas who are eligible for consideration by the U.S. refugee program apply by filing a Registration for Classification as a Refugee, Form I-590.

"Affirmative" Asylum Applications with INS:

An alien who is in the United States and who is not in immigration proceedings may apply for asylum by filing a Form I-589 with the appropriate INS regional Service

Center by mail. The Service Center sends the applicant a receipt notice and refers the applicant to one of eight asylum offices around the country. The offices are staffed by approximately 300 specially trained members of the Asylum Officer Corps (AOC), which has been adjudicating asylum applications filed with INS since 1991. Asylum claims brought before the AOC are "affirmative" applications filed voluntarily by the alien. If an asylum officer denies the asylum application of an alien in lawful status, the applicant can reapply for asylum if he/she is later placed in removal proceedings before an immigration judge. Aliens who are in unlawful status and cannot be granted asylum by the AOC are referred to an immigration judge, before whom they can again raise their asylum claim. Affirmative asylum applicants are not placed in detention while their application is considered.

Although the Form I-589 is an application for both asylum and withholding of removal, generally it is immigration judges, and not asylum officers, who adjudicate applications for withholding of removal during removal proceedings in which it has been determined that an alien is removable.

"Defensive" Asylum Applications with EOIR:

The Executive Office for Immigration Review has exclusive jurisdiction over the cases of aliens who are placed in removal proceedings and then seek asylum. Asylum claims filed before EOIR are "defensive" applications raised in removal proceedings before immigration judges as a defense against removal. Aliens who seek asylum as a defense against removal may be detained for being in the United States illegally until an

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 without travel documents or who engage in fraud or material misrepresentation be detained and placed in expedited removal. Aliens who express or indicate a fear of persecution during the expedited removal process receive a "credible fear" interview with an INS asylum officer. Aliens found to have a credible fear are referred for ordinary removal proceedings in which they may apply for asylum before an immigration judge. Aliens determined to have a credible fear are detained because they remain in removal proceedings until an immigration judge rules on their asylum claim. Their detention also is not due to their asylum claim.

Parole:

INS district directors have discretionary authority to parole, or release, an alien in proceedings from detention. In determining whether release is appropriate on a case-by-case basis, district directors must decide whether the alien’s release would serve an urgent humanitarian need or significant public benefit and whether the alien has established his/her identity, poses a threat 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 criminal aliens.

Overseas Refugee Processing:

Each year the President, in consultation with Congress, determines the number of refugees who may be admitted to the United States during the coming fiscal year. This annual ceiling is divided among five regional sub-ceilings -- Africa, East Asia, Europe, Latin America/Caribbean and the Near East/South Asia. For fiscal 1999, the President and Congress have determined 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

East Asia – 9,000 Europe (includes 3,000 unfunded) – 48,000 Latin America/Caribbean – 3,000 Near East/South Asia – 4,000 Unallocated – 2,000

The Europe, Bosnia and former Soviet Union ceiling includes 3,000 unfunded numbers allocated to the former Soviet Union for use as needed, provided that resources within existing appropriations are available to fund the cost of their admission. The 2,000 unallocated numbers will be allocated as needed to meet regional shortfalls. Unused admissions numbers from one region may be transferred to another region where the need for admissions numbers 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 is governed by their nationality and whether they come under one of the processing priorities used to manage the U.S. refugee program. Like the setting of the admissions’ ceiling, the designation of eligible nationalities and processing priorities is decided annually as part of the consultations process.

Traditionally, refugee applicants are interviewed in third countries after having fled their country of persecution. Individuals who have fled their country and believe themselves to be at risk if returned should contact the nearest office of the United Nations High Commissioner for Refugees (UNHCR). That office will make a decision as to whether the individuals require protection and where that protection may be provided. The U.S. legal definition of refugee also allows for in-country refugee processing in countries so designated by the President. For fiscal 1999, the U.S. refugee program will operate in-country programs in Havana, Ho Chi Minh City and Moscow. Those eligible for Moscow processing are nationals or habitual residents 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 of protection, each with a different set of criteria and rights and obligations.

They are also subject to a multi-step, lengthy application procedure, beginning with eligibility screening, followed by an interview, and potentially followed further by up to six levels of appeal and judicial review. Throughout this process, most asylum seekers are entitled to limited financial support. However, some categories of asylum seekers are left destitute. Successful asylum seekers are only entitled to temporary protection for a period of five year terms. After the five years elapses, they may then apply for permanent protection.

In addition to its complexity, the UK asylum system has been criticized for its poor initial decisions. The asylum system is managed by the UK Border Agency (UKBA). Each case is assigned to a UKBA official (Case Owner) who oversees the case from the initial interview and decision. Critics allege that these Case Owners are poorly trained and are influenced by institutional biases. A high number of initial decisions rendered by the Case Owners are overturned and returned for rehearing.

Although the UKBA has stated that its objective is to provide a system that is “fast, fair and firm”,1 it has been moving towards a system that effectively expedites, limits or discourages asylum claims. For example, it has recently created a fast track procedure for asylum seekers that are deemed to be a flight-risk or that have “straightforward claims.” These asylum seekers are detained and their claims are decided very quickly.

Critics allege that these fast track procedures result in a significant number of errors. Moreover, like other European countries, the UK has restricted effective access to its asylum system through measures such as overseas interdiction, carrier sanctions, the European Schengen Agreement, imprisonment for the use of false documents and aggressive detention policies for some asylum categories. Still, on average, the UK receives more than three times as many asylum seekers as Canada. Critics of Canada’s refugee system point to the UK’s lower acceptance rates as evidence of Canada’s excessive generosity. However, the UK system is, as discussed above, complex, lengthy, and at times, unfair, and as result, often excludes legitimate refugees. Furthermore, UK has been less successful than Canada at removing failed asylum seekers.

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 merit protection under the Convention, claimants must meet the criteria set out in the Convention definition of a refugee: they must (1) be outside their country of origin (2) have a well-founded fear of persecution (3) due to reasons of race, religion, nationality, political opinion or membership in a particular social group and (4) are unable or unwilling, by reason of their fear, to secure protection from their country of origin.

Convention Refugees (CRs) are at first granted temporary protection for a period of five years. They can also apply to have their spouse and children under the age of 18 join them in the UK During this five year period, the UKBA may review a CR’s case if the CR has acted in a way that violates the Convention or if the conditions in the CR’s home country have changed. In some instances, the CR’s status may be revoked and the CR may be issued a deportation order.

When the five year period of temporary protection elapses, CRs may apply to renew their temporary residence permit or may apply for permanent residence (Indefinite Leave to Remain). The UKBA will then decide to grant them permanent status, extend their temporary status, or revoke their temporary status depending on the current conditions in their countries of origin. prior to 2005; the process of securing permanent protection was simpler. Claimants who were recognized as CRs were automatically granted permanent residence (Indefinite Leave to Remain). Under this former regime, the status of CR was more secure, rendering integration somewhat easier.

2) Humanitarian Protection:

Asylum seekers who do not meet the criteria under the 1951 U.N. RefugeeConvention may qualify for Humanitarian Protection (“HP”). Under the Immigration Act, HP may be granted to asylum-seekers who face a serious

risk to their life or person in their home countries. Like Convention Refugees, those who are granted HP status have the right to remain in the UK for five years and to apply for their spouse and children under the age of 18 to join them. During this five year period, the UKBA may review an individual’s HP status if the individual has acted in a way that violates the Convention or if the conditions in the individual’s home country have changed. The UKBA may then decide to leave the HP status in place, change the HP status to Discretionary Leave to Remain (“DLR”), or revoke the HP status and require the individual to leave the country. After the five years have elapsed, individuals with HP status may apply to remain indefinitely in the UK and will be allowed to do so if they are still in need of protection.

3) Discretionary Leave to Remain:

If asylum-seekers do not qualify for Convention Refugee (CR) or HumanitarianProtection (“HP”) status, the UKBA may grant them Discretionary Leave to Remain(“DLR”) under the Immigration Act. DLR is granted for a period of three years 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 some circumstances, may extend DLR for a further three years. After an individual has had DLR status for six years, the UKBA may then either grant them permanent residence or deport them. Once again, the UKBA will base their decision on the current conditions in the individual’s home country.

The UKBA will not grant permanent residence if the individual was ineligible for refugee status for reasons of criminality or national security. In this case, the individual must leave the UK. Both HP and DLR were introduced on April 1, 2003. These categories were intended to replace the former category of Exceptional Leave to Remain (“ELR”), which was perceived as overly generous. The UK government has explicitly promoted

the regime under HP and DLR as more restrictive. Like HP and DLR, ELR was granted to those who did not qualify for refugee status but could not be returned to their home countries. Reasons barring removal included compelling compassionate or humanitarian grounds, the United Kingdom’s obligations under the European Convention on Human Rights, the inability of a country to give proper reception to unaccompanied children, and delays of seven years or more in decision-making that were not the asylum seekers fault. ELR could be granted for up to a four year period at a home officer’s discretion. At the end of this four year period, an individual could apply for permanent 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 8.7 million 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 of origin. At the end of 2007, the Middle East and North Africa region hosted a quarter of all refugees (approx. 2,700,000 refugees), primarily from Iraq, while Europe hosted 14% (approx. 1,580,000 refugees). Pakistan is the country with the single largest number of refugees (2 million).

Between them, Syria and Jordan host over 2 million Iraqi refugees. In comparison, the UK hosts less than 300,000 representing 2.6% of the world’s refugees. Global asylum numbers are also increasing. Approximately 647,000 asylum applications were made around the world in 2007 – an increase of 5% from 2006 and the first rise in 4 years. EU countries received 222,900 new applications in 2007 – an 11% increase on 2006. The UK received 27,900 asylum claims in 2007, just over 8% of the total received in industrialized countries and the lowest level recorded since 1989. By contrast, in 2003, the UK received 60,050 applications.

Some Western European countries such as Austria, Germany and France have seen a steady decrease in asylum numbers. Figures in Germany reached a 30-year low in 2007 with 19,200 individuals applying for asylum. In Sweden, however, the 2007 level is the third highest ever witnessed in the country after 1992 (84,000 claims) and 1993 (37,600 claims). This increase has been caused primarily by the continuous arrival of large numbers of Iraqi asylum-seekers. Major increases have been witnessed at the external borders of the EU, in Greece, Italy, Spain and Turkey.

Greece has emerged as a major new recipient of asylum-seekers in the industrialized world. In the course of 2007, 25,100 asylum applications were lodged in the country, almost 13,000 more than in 2006, constituting five times more applications than in 2004 (4,500 asylum claims). Airline Liaison Officers (ALOs) and juxtaposed controls – UK immigration officers posted at train and ferry ports in France and Belgium - are just two of the measures used to control irregular migration overseas.

The UK has approximately 40 ALOs posted in over 30 locations around the world. In the last 5 years, UK ALOs have prevented more than 150,000 inadequately documented migrants from reaching the UK. Juxtaposed controls stopped 16,898 people crossing the channel irregularly in 2006. It is not know how many of those stopped were fleeing persecution. In Kent the number of irregular immigrants arriving since 2002 has reduced by 88%. Since FRONTEX became fully operational in 2006, it has intercepted over 50,000 irregular migrants in 33 different operations, and the UK was involved in approximately half of these operations. FRONTEX does not provide any breakdown of whether those intercepted wished to/did seek protection

How unequal is the current distribution of Refugee Burdens?

When comparing their relative contributions to refugee protection, stat are likely to disagree about how such contributions should be assessed. By looking at some of the most directly linked burdens/responsibilities that countries are faced with as a result of international refugee flows, it is possible to arrive at some approximations of relative responsibilities that countries are faced with or prepared to accept. Table 1 below tries to do just that.

It presents UNHCR data on asylum and resettlement on 15 OECD countries (columns 1&2) for the period 1994-2002. Column 3 lists countries’ relative burdens on the basis of asylum applications received and resettlement cases accepted (controlling for different population size of host countries). Switzerland, the Netherlands and Belgium have had the largest relative numbers of asylum applications over that period, while Japan, Spain and Italy had the lowest.

States have a substantial degree of discretion in how they deal with asylum seekers on their territory. When dealing with asylum seekers, countries have generally three options. (1) Recognizing their asylum claims, i.e. granting them refugee status under the Geneva Convention; (2) giving them some other protection status (such as ‘exceptional leave to remain’) that allows them to legally live and (usually) work in the country, and (3) to reject an asylum claim and send the applicant back to their home country. Column 6 in the table shows a substantial degree of variation in states’ willingness to award asylum-seekers in their territory some form of temporary or permanent status (Convention or subsidiary protection status). On average, the Netherlands, Denmark and Canada were the most generous host countries, while Japan, Germany and Australia were the toughest countries when handling requests for protection.

Why Refugee Burdens are unequally distributed?When trying to account for the current distribution of refugee burdens among countries, three principal explanations can be identified. In reverse order of importance, these are related to free-riding opportunities, state interests and variation in pull-factors.Free-Riding OpportunitiesSimilar to the NATO burden-sharing debate, there have been protests and free-riding accusations from the main receiving countries as well as resulting threats by some states to opt out of the Geneva Convention for the Protection of Refugees to which all OECD countries are signatories. A number of scholars, most prominently Suhrke (1998), have suggested that refugee protection has (at least in part) important ‘public good’ characteristics. Suhrke argues that the reception of displaced persons can be regarded 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

persons can be expected to reduce the risk of them fuelling and spreading the conflict they are fleeing from. A public good is defined by its properties of non-excludability and non-rivalry. It is these properties which set it apart from a private good. The provision of a public good, such as the additional security provided by refugee protection, benefits not only countries which contribute to the protection of displaced persons but these benefits are also extended to other actors at no marginal cost. One might therefore expect substantial free-riding opportunities, similar to those that have been observed with regard to the provision of other international public goods such as collective defense. Unlike in the case of NATO burden-sharing where empirical evidence suggests Olson and Zeckhauser (1966) that larger countries have been exploited by small countries, no similar picture emerges when analyzing the refugee reception burden. In fact, the evidence presented in Table 1 suggests that in the case of the reception of refugees by OECD countries, it is the smaller states which appear to shoulder disproportionate burdens.

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 south east / south central (not including London).

What is it?

This new service provides support to recent refugees to help them to settle into UK society and to find employment. General advice and support regarding issues such as housing, benefits and access to English classes is available for six months. Specialist employment advice and help to assist refugees in job searches, job applications, CV-writing and interview techniques is available for up to a year. A mentoring service, which matches refugees with local mentors who can assist them in the achievement of specific employment or social goals, is also available for up to a year.

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 whose asylum claim was dealt with under the New Asylum Model (i.e. those who lodged an asylum claim since March 2007).

For those refugees who were granted discretionary leave under the New Asylum Model or who were granted any type of leave by the legacy case resolution team in Croydon, Move-On advice for a more limited period of time is available through our One-Stop asylum advice service at theBristol, Portsmouth, Liverpool, Manchester, Leicester and Nottingham offices.

RIES in the North West

In the north-west, the service is operated directly from our Liverpool and Manchester offices and as outreach in Bolton, Blackburn, Bury and Wigan. The service is also supported by Manchester Refugee Support Network which provides volunteer advocates.

RIES in the south west

In the south-west, the service is operated directly from our Bristol office and through partner organisations in Gloucester and Swindon. In Gloucester the service is provided by Gloucester Action for Refugees and Asylum Seekers (GARAS) and in Swindon by Swindon Citizens Advice Bureau and the Harbour Project. We also work in partnership with Bristol Citizens Advice Bureaux on some cases.

RIES in the south east

In the south-east and south central, the service is operated directly from our Portsmouth office, an outreach in Southampton, and through partner organisations in Ashford, Brighton, Milton Keynes, Reading, Swanley and Slough. Our partner organisations are Ashford Citizens Advice Bureau, Brighton Voices in Exile, Milton Keynes Citizens Advice Bureau, Reading Refugee Support Group, Slough Refugee Support and Swanley & Sevenoaks Citizens Advice Bureau.

RIES throughout the UK

The Refugee Integration and Employment Service are funded by the UK Border Agency in all 12 government office regions. Other organisations provide the service in other regions.

Conclusion:

It has been shown that the distribution of refugee burdens in Europe is highly unequal, even when different reception capacities of countries are taken into account and it has been argued that this distribution is largely due to structural factors beyond states' control. It has also been argued that given the likely adverse consequences from 'a race to the bottom' by states trying to avoid disproportionate burdens, the development of an effective European (or even more far-reaching) burden-sharing regime appears to be in the interest of both refugees and countries of destination.

The establishment of such a regime does not have rely on appeals to solidarity but can be promoted by appealing to clear (albeit varying) benefits that can accrue to states in terms of increased security, lower costs, ensured adherence to international obligations, etc.

Finally, the discussion above makes the case for a more a comprehensive burden sharing approach. It has been argued that policy harmonization and quota-based burden-sharing regimes on their own are unlikely to provide satisfactory results. By outlining a number of market-based approaches, the paper hopes to stimulate the search for more effective burden-sharing solutions. Any proposal for a refugee burden-sharing regime can expected to be controversial but it seems that the EU provides a quite unique opportunity to further explore the potential benefits of market based burden-sharing in conjunction with ongoing efforts of policy harmonization which can help to safeguard compliance with established human rights standards.

Whereas past proposals for international burden-sharing regimes have sometime been rightly criticized for undermining individual rights and for shifting burdens to the South, this paper suggests that the establishment of regional burden-sharing regimes, like the one discussed here for the EU, can bring substantial benefits with fewer shortcomings, while also being

politically more feasible. Given the deplorable developments of recent years that have led to the current refugee dilemmas, the need to further explore new options to build a more equitable, efficient and effective international refugee burden-sharing regime appears to be more urgent than ever.