Refugee Law And Policy In Selected Countries
Refugee Law and PolicyIn Selected CountriesMarch 2016The Law Library of Congress, Global Legal Research Center(202) 707-6462 (phone) (866) 550-0442 (fax) law@loc.gov http://www.law.gov
ContentsComparative Summary .1Australia .3Brazil .24Canada.40China .56Denmark .62Egypt .72European Union .78Finland .107France.118Germany .135Greece .149Israel.165Italy .177Japan .190Jordan .197Kenya .201Lebanon.213Russian Federation .216Spain .227Sweden .235Switzerland .247
Turkey .256United Kingdom.275Bibliography .299
Comparative SummaryLuis AcostaChief, Foreign, Comparative, and International Law Division III. IntroductionThis report describes the law and policy on refugees and other asylum seekers in twenty-twogeographically dispersed countries and, at the supranational level, in the European Union (EU).The individual surveys cover such topics as participation in relevant international conventions;laws and regulations governing the admission of refugees and handling refugee claims; processesfor handling refugees arriving at the border; procedures for evaluating whether an applicant isentitled to refugee status; the accommodations and assistance provided to refugees in thejurisdiction; requirements for naturalization; and whether asylum policy has been affected byinternational emergencies, such as the current refugee crisis in Europe. A bibliography ofselected relevant English-language materials from recent years is included.II. Refugee ConventionAll of the countries surveyed here, other than Jordan and Lebanon, are states parties to the 1951Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. The EU’sCommon European Asylum System is also based on the principles in the Convention. Statesparties to the Convention are required to protect refugees that are in their territory and to adhereto the principle of non-refoulement—that is, to not return refugees to places where their life orfreedom would be threatened on account of race, religion, nationality, membership in a particularsocial group, or political opinion. In practice, the states parties to the Convention varysignificantly in their receptivity to asylum seekers and the extent to which conflicting nationalpolicies affect adherence to norms prescribed in the Convention.III. Application and EvaluationAsylum seekers are required to submit an asylum application to the country’s competentauthority. Different procedures apply to different categories of applicants—for example, thoseapplying for asylum upon arriving at the border versus those applying from outside the countrythrough the United Nations High Commissioner for Refugees (UNHCR), or those applying forrefugee status versus those applying for humanitarian protection. The Convention permitsdivergent practices in the processing of applications. Screening requirements that involvecollecting personal details, fingerprints, and photographs of the applicant are common. Thedetermining authority typically examines submitted documentation and interviews the applicant.Denied applicants commonly have the opportunity to appeal an adverse determination.The Law Library of Congress1
Refugee Law and Policy: Comparative SummaryIV. Assistance to Asylum SeekersThe surveys describe the varying types of assistance provided to asylum seekers in thejurisdictions. Assistance includes housing, food, access to medical care, education, employment,travel documentation, and information about their legal rights.V. Family MembersMost surveyed countries include immediate family members of applicants among those entitledto asylum protection. Some countries also have provisions for family reunification, allowingthose granted international protection to apply for such protection for family members outsidethe country.VI. Path to CitizenshipThe surveys also show diversity with respect to whether a person’s refugee status affects therequirements needed to obtain naturalization. In some countries, the requirements fornaturalization are no different for refugees and ordinary immigrants, while in others certaincriteria, such as the required length of residency, vary between refugees and other migrants.VII. Monitoring of Applicants and Restrictions on TravelThe surveys describe the monitoring of asylum applicants and the travel restrictions placedon them in the countries.Countries usually impose residence requirements,obligations to report to governmental authorities at specified intervals, and the like.Practices vary dramatically with respect to permission to travel within and outside thejurisdiction and the type of documentation required for allowed travel.The Law Library of Congress2
AustraliaKelly BuchananChief, Foreign, Comparative, andInternational Law Division ISUMMARY Australia’s Refugee and Humanitarian Programme consists of several different visas thatare available to refugees and others in need of protection. The total number of placesavailable under the program each year is currently 13,750, although 12,000 additionalplaces have been made available in response to the refugee crisis that has emerged fromconflicts in Iraq and Syria. The majority of visas are designated for offshore applicants,most of whom are assessed as refugees by the UNHCR and referred to Australia forresettlement. Visas available to offshore applicants provide permanent residence status andaccess to a range of services and assistance. Holders can sponsor family members for visasand can also apply to become Australian citizens under the same rules as other permanentresidents.There has been much debate and many law and policy changes over the years regardingthe approach to handling asylum seekers who arrive in Australia by boat without a validvisa. The current rules mean that anyone who arrives unlawfully after January 1, 2014, willbe taken to a third country for processing and resettlement; they will not be able to applyfor visas in Australia. Boats that enter Australian territory may be returned to internationalwaters. Around 30,500 asylum seekers who arrived in Australia prior to January 1, 2014,are being invited, in stages, to apply for temporary protection/safe haven visas that arevalid for three or five years. Visa holders cannot sponsor family members and only thosewho meet criteria relating to living and working in regional Australia will have a pathwayto permanent residence. A permanent protection visa is available to people who seekasylum after arriving in Australia on a valid visa.I. IntroductionA. Refugee and Humanitarian ProgrammeAustralia’s immigration system involves two major components: the Migration Programme forskilled and family migrants, and the Refugee and Humanitarian Programme “for refugees andothers in refugee-like situations.”1 Within the Refugee and Humanitarian Programme there areseparate tracks for those seeking asylum following arrival in Australia (referred to as “onshoreprotection”2) and refugees who are outside Australia and in need of resettlement (referred to as1Fact Sheet – Australia’s Refugee and Humanitarian Programme, DEPARTMENT OF IMMIGRATION AND BORDERPROTECTION (DIBP), ion/fact-sheets/60refugee (last visitedDec. 31, 2015), archived at https://perma.cc/KPG3-ZZHP.2What is ‘Onshore Protection’?, DIBP, /what-is-onshoreprotection (last visited Jan. 5, 2016), archived at https://perma.cc/YHV8-97NS.The Law Library of Congress3
Refugee Law and Policy: Australia“offshore resettlement”).3 The offshore resettlement component is further divided into twocategories: the Refugee category and the Special Humanitarian Programme category, whichallows people in Australia to sponsor close family members in other countries who face humanrights abuses.4 Within the onshore protection component, asylum seekers are treated differentlydepending on whether they entered Australia with or without a valid visa.Australia is a party to the Convention Relating to the Status of Refugees of 1951 (1951 RefugeeConvention) and its 1967 Protocol. It has been involved in the United Nations refugeeresettlement program since 1977.5 The majority of people granted visas through the offshoreRefugee category have already been assessed as refugees by the UN High Commissioner forRefugees (UNHCR) and referred to the Australian government for resettlement consideration.6The total number of places available in the Refugee and Humanitarian Programme is set eachyear by the government.7 Since 2009–10 (July 1 to June 30), the planned intake has been set at13,750, although this was temporarily increased to 20,000 in 2012–13 in line with therecommendations of the Expert Panel on Asylum Seekers.8 Currently, of the 13,750 placesavailable, at least 11,000 are to be used for people applying from outside Australia, including5,000 places under the Special Humanitarian Programme.93What Is Australia’s Refugee and Humanitarian Programme All About?, DIBP, am-all-about (last visited Jan. 5,2016), archived at https://perma.cc/X4VZ-LQJ2.4What is ‘Offshore Resettlement’?, DIBP, /what-isoffshore-resettlement (last visited Dec. 28, 2015), archived at https://perma.cc/4R5J-LKB3; The SpecialHumanitarian Programme (SHP), DIBP, al-HumanitarianProgramme-%28SHP%29 (last visited Jan. 5, 2016), archived at https://perma.cc/Q5UH-VSP9; Janet Phillips &Elibritt Karlsen, Budget Review 2014–15: Migration and Humanitarian Programs, AUSTRALIAN PARLIAMENTARYLIBRARY (May 2014), http://www.aph.gov.au/About Parliament/Parliamentary iew201415/Migration, archived at https://perma.cc/J32K-E83E; Janet Phillips,Australia’s Humanitarian Program: A Quick Guide to the Statistics Since 1947 (Australian Parliamentary Library,Jan. 7, 2015), http://www.aph.gov.au/About Parliament/Parliamentary Departments/Parliamentary Library/pubs/rp/rp1415/Quick Guides/Humanitarian, archived at https://perma.cc/L67F-FD2M.5Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, AUSTRALIAN PARLIAMENTARY LIBRARY(updated Mar. 2, 2015), http://www.aph.gov.au/About Parliament/Parliamentary ylumFacts, archived at https://perma.cc/EBY2-LY8M.6Refugee and Humanitarian Visas, DIBP, nd-Humanitarianvisas (last visited Jan. 5, 2016), archived at https://perma.cc/A9U2-DLDM.7Migration Act 1958 (Cth) s 39A, https://www.comlaw.gov.au/Details/C2015C00618, archived athttps://perma.cc/JVQ9-UAS7.8Janet Phillips, Budget Review 2013–14: Migration and Humanitarian Programs, AUSTRALIAN PARLIAMENTARYLIBRARY (May 2013), http://www.aph.gov.au/About Parliament/Parliamentary Departments/ParliamentaryLibrary/pubs/rp/ BudgetReview201314/Migration, archived at https://perma.cc/4XMN-DCFG; GOVERNMENT,REPORT OF THE EXPERT PANEL ON ASYLUM SEEKERS (Aug. 2012), available at http://apo.org.au/files/Resource/expert panel on asylum seekers full report 0.pdf, archived at https://perma.cc/8SUN-VTDJ.9Harriet Spinks, Budget Review 2015–16: Migration and Humanitarian Programs, AUSTRALIAN PARLIAMENTARYLIBRARY (May 2015), http://www.aph.gov.au/About Parliament/Parliamentary iew201516/Migration, archived at https://perma.cc/G37T-XXKD.The Law Library of Congress4
Refugee Law and Policy: AustraliaIn response to the humanitarian crisis arising from the conflicts in Syria and Iraq, the Australiangovernment announced in September 2015 that an additional 12,000 permanent humanitarianplaces would be made available during 2015–16 to those displaced from the two countries.10Priority will be given to “the women, children and families of persecuted minorities who havesought refuge from the conflict in Jordan, Lebanon and Turkey.”11 The Australian governmentwill also contribute about AU 44 million to assist with addressing the humanitarian crisis in Iraqand Syria.The government has stated that the number of places available in the Refugee and HumanitarianProgramme will increase to 16,250 in 2016–17 and to 18,750 in 2018–19.12B. Relevant LawsThe Migration Act 1958 (Cth) contains the overarching provisions relating to the grant of visasto noncitizens of Australia. The Migration Regulations 1994 (Cth) set out further rules fordifferent “classes” and “subclasses” of visas.13 The four classes of “Protection, Refugee andHumanitarian” visas are listed in part 4 of schedule 1 of the Regulations: protection (class XA),refugee and humanitarian (class XB), temporary protection (class XD), and safe haven enterprise(class XE). The first two visa classes involve permanent residence, while the remaining two aretemporary visas.Schedule 2 of the Regulations lists the criteria that applicants must meet in order to be granted avisa under the various visa subclasses. This includes references to the “public interest criteria”that are contained in part 1 of schedule 4 of the Regulations.Australia’s immigration laws are administered by the Department of Immigration and BorderProtection (DIBP).C. Debate Regarding Treatment of Asylum Seekers Arriving by BoatThere has long been considerable debate regarding how Australia should handle asylum seekers,particularly those who attempt to enter Australian territory by boat without a visa, often viaIndonesia and with the assistance of people smugglers.14 Such people are currently referred to10Press Release, Hon. Tony Abbott et al., The Syrian and Iraqi Refugee Crisis (Sept. 9, 2015), jb mr 150909a.aspx, archived at https://perma.cc/2A9S-QQU5.11Id. See also Syrian/Iraqi Humanitarian Crisis, DEPARTMENT OF SOCIAL SERVICES (DSS), n-crisis (last updated Nov. 16,2015), archived at https://perma.cc/C6VD-UF2T.12Press Release, Peter Dutton MP, Minister – Restoring Integrity to Refugee Intake (May 12, .aspx, archived athttps://perma.cc/7DV6-7LMU.13Migration Regulations 1994 (Cth), https://www.comlaw.gov.au/Details/F2015C00989, archived athttps://perma.cc/SFM5-739G.14See Australia Asylum: Why Is It Controversial?, BBC (Nov. 9, 2015), http://www.bbc.com/news/world-asia28189608, archived at https://perma.cc/9927-H75Q.The Law Library of Congress5
Refugee Law and Policy: Australiaby the government as “illegal maritime arrivals” or IMAs,15 and in the Migration Act 1958 (Cth)as “unauthorised maritime arrivals.”16 The Australian government has introduced variousmeasures over time to intercept, detain, and process such people.17 Matters debated bypoliticians, advocates, and the public include the mandatory detention of asylum seekers, theirtransfer to detention centers offshore or in third countries, the conditions and oversight of thosefacilities,18 whether particular measures could be in breach of the 1951 Refugee Convention, andthe effectiveness of different policies in deterring asylum seekers from risking their lives bytraveling to Australia by boat.19The current policy is that anyone who tries to travel illegally by boat to Australia after January 1,2014, will not be processed or resettled in Australia.20 Boats may be intercepted at sea andreturned to international or Indonesian waters (a measure implemented through “OperationSovereign Borders”21) or the people on board may be sent to a third country for processing(“regional processing country”). These measures are intended to “stop people smugglersexploiting vulnerable people and to prevent loss of life at sea.”2215Illegal Maritime Arrivals (IMAs), DIBP, rrivals (last visitedJan. 5, 2016), archived at https://perma.cc/RPE5-VSQT.16Migration Act 1958 (Cth) s 5AA (meaning of “unauthorised maritime arrival”).17See, e.g, Timeline of Major Events in the History of Australia’s Refugee and Humanitarian Program, REFUGEECOUNCIL OF AUSTRALIA, alias-refugee-and-humanitarianprogram/timeline/ (last updated Feb. 2014), archived at https://perma.cc/F24X-TP7D; Timeline of Events, ASYLUMSEEKER RESOURCE CENTER, ne-of-events/ (last visited Jan. 5,2016), archived at https://perma.cc/D296-SY9J; http://www.aph.gov.au/DocumentStore.ashx
The Law Library of Congress 3 Australia Kelly Buchanan Chief, Foreign, Comparative, and International Law Division I SUMMARY Australia’s Refugee and Humanitarian Programme consists of several different visas that are available to refugees a
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