Immigration in Europe - HumanitarianNet - Universidad de Deusto

BUILDING A RIGHTS BASED ASYLUM SYSTEM FOR EUROPE: A UNHCR PERSPECTIVE 45adopted, i.e. in a less rigid and more principled, protection-mindedway. 2Fourth, restrictive asylum policies of one State or region do notdeter refugees from fleeing persecution in their country. They may onlydivert refugee movements elsewhere, often to those States in theregion of origin that are least able to guarantee effective protection.Clearly, responsibilities for refugee protection and the resulting costsshould not be a matter of a State’s geographical position, but rather acoherent, planned strategy for a collective humanitarian response tothe victims of human rights violations, persecution or armed conflict.Fifth, neither the definition of refugee in Article 1 of the 1951Convention nor the observance of the principle of non-refoulement inArticle 33 is entirely an inter-State treaty obligation. The obligation is asmuch towards the refugee, whose fundamental human rights are thesubject of the Convention. Even when there is a specific formalagreement among a group of States to apportion responsibility forreceiving and considering applications for refugee status, any numberof these States would bear the responsibility for direct or indirectbreach of the non-refoulement obligation if this were to occur. 3Sixth, employing a narrow construction of the refugee concept willnot help reduce the numbers of non-refugee migrants claiming asylum.At best, it limits the number of refugees who are recognised as such. Ina rather circular logic, States have sometimes found it convenient toinflate the rate of rejections of refugee claims so as to justify stringentmeasures against the “abusers” of the asylum system.In no way does rejection of a refugee claim imply that the applicantabused the asylum system. Some unsuccessful refugee claimants arepeople who actually meet the requisite criteria for refugee status, butwhose claims are rejected only because of a restrictive application ofthe refugee definition or stringent evidentiary requirements. Yet others are2 See, for example, UK Court of Appeal, Regina v. Secretary of State for the HomeDepartment Ex parte Adan and Aitsegeur [1999] 3 W.L.R, 1274, at p. 1296: “It is clearthat the signatory States intended that the Convention should afford continuingprotection for refugees in the changing circumstances of the present and future world.The Convention has to be regarded as a living instrument.”3See, for example, the European Court of Human Rights, T.I. v. the United Kingdomjudgement of 7 March 2000, at p. 16: “Where States establish international organisations,or mutatis mutandis international agreements, to pursue co-operation in certain fieldsof activities, there may be implications for the protection of fundamental rights. Itwould be incompatible with the purpose and object of the Convention if ContractingStates were thereby absolved from their responsibility under the Convention in relationto the field of activity covered by such attribution.”