ASYLUM SEEKERS

UNDER INTERNATIONAL
LAW

Course of International Protection of Human Rights

Professor Massimo Iovane
 OUTLINE OF THE LECTURE

1. Migrant, refugee or asylum seeker?

2. Expulsion of foreigners and the principle of

non-refoulement

3. EU migration crisis and externalization of

migration management
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1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?
Customary international law – State sovereignty

States enjoy the right to control the entry, residence, and

expulsion of aliens.

Limitations:
1. Negative and positive obligations towards aliens
residing in the Country
2. Admission of foreigners and IHRL

3. Expulsion of foreigners: International refugee law

and IHRL 3
1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?
Migrant

 “Catch-all term”

 A person moving from one country to another

a. Voluntarily – e.g. to find work, to join relatives, to
study
b. Not voluntarily – e.g. to escape persecutions, wars,
natural disasters, poverty

 “Regular” migrants v. “irregular” migrants

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1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?
Asylum seekers
 A person seeking international protection outside his/her
a. Country of origin

b. Country of habitual residence (stateless persons)

 Forms of international protection

1. Refugee status – International law

2. Subsidiary protection – EU secondary law

3. Humanitarian protection – Domestic legal regime (e.g.

Italian asylum legal framework) 5
1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?

Refugee status
A State recognizes a third-country national or a stateless person as
a refugee

Refugee
A person who owes a “well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of
his former habitual residence as a result of such events, is unable 6
or, owing to such fear, is unwilling to return to it.”
1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?
Subsidiary protection

 EU Qualification Directive (Directive 2011/95/EU of the

European Parliament and of the Council), Article 2 and Article 15
 A third country national or a stateless person
 Who does not qualify as a refugee

 Who, if returned to his or her Country of origin/of former

habitual residence, would face a real risk of suffering serious
harm
1. Sentenced to the death penalty or execution;

2. Torture or inhuman or degrading treatment or punishment;

3. Serious and individual threat to a civilian’s life or person by 7

reason of indiscriminate violence in situations of armed
conflict
1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?
Humanitarian protection
 No obligation under International or EU law

 National law
E.g. Italy – Grounds to grant humanitarian protection: Article
5(6) and Article 19 D.lgs. 286/1998, as emended:
1. Serious reasons either of humanitarian nature, or stemming
from Constitutional or International obligations
2. Serious risk of being subject to torture – Gross and systemic
violations of human rights (Article 10(3) Italian
Constitution)
3. Vulnerability (minors, elderly people, disable people)

Italian Court of Cassation, judgment No. 4455, 23 February

2018
1. MIGRANT, REFUGEE OR ASYLUM
SEEKER?
Italian Court of Cassation, judgment No. 4455, 23 February 2018 (points 5-
6)
To grant humanitarian protection, the competent authority must strike a fair
balance between
1. The general situation in the Country of origin

2. Whether the specific living conditions of the asylum seeker were in

conformity with his/her human rights
3. The degree of integration in the host society
 a high-level of integration, taken alone, does not justify the issue of the
humanitarian protection
 comparison between the living conditions in the host society and the risk of
violation of human rights if expelled to the County of origin

E.g. Residency permit on humanitarian grounds: 9

 Violation of the right to health, Nigeria (Tribunale di Bari, decision of 19
September 2017);
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
General rule – Customary International law
States enjoy a broad discretion to expel aliens.

Limitations
1. State's duty to give a foreigner adequate time to wind up his/her
affair
E.g. Iran-USA Claim Tribunal, Yeager v. Islamic Rep. of Iran,
Judgment of November 2, 1987, §§49-50
2. Procedural safeguards relating to the expulsion of aliens lawfully
residing in the territory of a State
E.g. Article 13 ICCPR and Article 1, Protocol No. 7 ECHR
 Expulsion pursuant to a lawful decision

 Right to challenge the expulsion order before a competent authority

 Right to be represented by a counsel before the competent authority 10

3. Principle of non-refoulement
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
The principle of non-refoulement as customary International law
 International Refugee law
1951 Convention Relating to the Status of Refugees, Article 33

 IHRL
 Universal instruments

 ICCPR 1966, Article 7 as interpreted by the UNHRC (GC No. 20, para. 9)

 CAT 1984, Article 3

 Regional instruments

 ECHR, Article 2, Article 3, Article 8 as interpreted in the ECtHR well-

established case-law + Article 4, Protocol No. 4 ECHR

 CFREU, Article 19 (with a reference to Article 4 CFREU)

 Convention Governing the Specific Aspects of Refugee Problems in Africa,

11
Article 2
 ACHR, Article 22, para. 8


2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
The principle of non-refoulement – International Refugee law

1951 Convention Relating to the Status of Refugees, Article 33

Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in

any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however, be claimed by
a refugee whom there are reasonable grounds for regarding as a
danger to the security of the country in which he is, or who, having
been convicted by a final judgment of a particularly serious crime, 12
constitutes a danger to the community of that country.
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
The principle of non-refoulement – International Refugee law

1951 Convention Relating to the Status of Refugees, Article 33

Prohibition of expulsion or return (“refoulement”)

1. Refugees
2. Any manner whatsoever – no matter the legal qualification of the act
(expulsion, extradition, return etc.)
3. Threaten to life or freedom on the same specific grounds of the
refugee status – race, religion, nationality, membership of a particular
social group or political opinion
4. Not an absolute right – Limitations: reasonable grounds for
regarding the refugee as
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a. a danger to the security of the host society
b. a danger for the community of that country (final conviction for the
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT

The principle of non-refoulement – IHRL

 Among universal instruments – CAT 1984, Article 3

 Among regional instruments – ECHR as interpreted by the

ECtHR
 Article 2 (1) – Right to life
 Article 3 – Prohibition of torture
 Article 8 – Right to respect for private and family life
 Article 4, Protocol No. 4 – Prohibition of collective expulsions 14
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT

UNCAT 1984 – Article 3

1. No State Party shall expel, return ("refouler") or extradite

a person to another State where there are substantial
grounds for believing that he would be in danger of being
subjected to torture.
2. For the purpose of determining whether there are such
grounds, the competent authorities shall take into account all
relevant considerations including, where applicable, the
existence in the State concerned of a consistent pattern of
gross, flagrant or mass violations of human rights.
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2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT

Article 3 UNCAT 1984 grants a wider protection than the one

under 1951 Refugee Convention, Article 33

1. Person – not only refugees

2. Substantial grounds of the risk of being subject to torture
– regardless religion, nationality, membership of a particular
social group or political opinion
3. Ius cogens nature – Absolute right: no limitation, no
derogation.
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2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
Principle of non-refoulement: relevant ECHR provisions
Article 2 (1) – Right to life
Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of 17
health or morals, or for the protection of the rights and freedoms of others.
Article 4, Protocol No. 4- Prohibition of collective expulsion of aliens
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT

Article 3 – Prohibition of torture and the protection par ricohcet

 Soering v. the United Kingdom (Application No. 14038/88, 26

June 1989) – leading case – fugitive

 Chahal v. the United Kingdom (Application No. 22414/93, 15

November 1996) – threat to national security

 Saadi v. Italy (Application no. 37201/06, 28 February 2008) –

person convicted of terrorism in his Country of origin

 M.S.S. v. Belgium and Greece (Application No. 30696/09, 21

January 2011[GC] ) – asylum seeker 18

 Paposhvili v. Belgium (Application no. 41738/10, 13 December

2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
The principle of non-refoulement under Article 3: general remarks

 Ius cogens nature – Absolute prohibition:

1. No exceptions, limitations or derogation;

2. No balance with other interests – i.e. whether the person concerned is a

serious threat to the community or a danger to national security
 Substantial grounds for believing that the person concerned, if deported, faces
a real risk of being subjected to treatment contrary to Article 3
 Assessment of the risk
1. General situation of the receiving country

2. The personal circumstances of the individual concerned

 Negative obligation of result: obligation not to remove
 Responsibility of the sending State: the exposure to the risk of treatment
contrary to Article 3 ECHR is the direct consequence of its actions 19
 Direct refoulement v. indirect refoulement – criticalities of the EU-Turkey
statement of 18 March 2016; criticalities of the Italy-Libya MoU of 2 February
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
Article 8 – Right to respect for private and family life

Possible limitations: interference by a public authority

1. In accordance with the law

2. Necessary in a democratic society

3. In the interest of one or more of the legitimate aims listed

 national security, public safety or the economic well-being of
the country
 prevention of disorder or crime

 protection of health or morals

 protection of the rights and freedoms of others

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Moustaquim v. Belgium (Application No.12313/86, 18 February
1991) – Violation of Article 8 ECHR: the deportation order was
2. EXPULSION OF FOREIGNERS AND THE
PRINCIPLE OF NON-REFOULEMENT
Article 4, Prot. 4 – Prohibition of collective expulsion of aliens

Collective expulsion: any measure of the competent authority compelling aliens

as a group to leave the Country without a reasonable and objective examination of
the particular cases of each individual alien of the group

 Hirsi Jamaa and Others v. Italy (Application No. 27765/09, 23 February 2012
[GC]) – Violation Article 4, Protocol No. 4 due to return of migrants
intercepted at sea to the Country of departure
1. Italian jurisdiction under Article 1

2. Bilateral agreements and principle of non-refoulement under Article 3

3. Extraterritorial application of Article 4, Protocol no. 4

Possible follow-up – Libya-Italy Memorandum of Understanding, 2 Feb 2017

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 ND. and N.T. v. Spain (Applications Nos. 8675/15 and 8697/15, 3 October
2017) - Violation Article 4, Protocol No. 4 due to push-back of migrants at
territorial borders – Case referred before the GC
3. EU MIGRATION CRISIS AND EXTERNALIZATION
OF MIGRATION MANAGEMENT

2015 Arrivals by sea: more than a 1 million asylum seekers

Dead and missing: more than 3.700

2016 Arrivals by sea: more than 360.ooo asylum seekers

Dead and missing: more than 5.ooo

2017 Arrivals by sea: more than 172.ooo asylum seekers

Dead and missing: more than 3.ooo

As for the 7th May 2018

Arrivals by sea: more than 23.000 asylum seekers
(almost 24.000) 22

Dead and missing: more than 600

Source: UNHCR, Operations portal: Mediterranean situation, available at: http://bit.ly/2o4LEyV
3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT

2015 Arrivals by sea: more than 1 million asylum seekers

 Greece – more than 850.ooo

 Italy – more than 150.ooo

 Spain – more than 15.ooo

2016 Arrivals by sea: more than 360.ooo asylum seekers

 Greece – more than 180.ooo

 Italy – more than 170.ooo

 Spain – more than 13.ooo

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Source: UNHCR, Operations portal: Mediterranean situation, available at: http://bit.ly/2o4LEyV

3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT

2017 Arrivals by sea: more than 178.ooo asylum seekers

 Greece – more than 29.000

 Italy – more than 119.000

 Spain – more than 28.000

As for the 4th May 2018

Arrivals by sea: more than 23.000 asylum seekers (almost
24.000)
 Greece – more than 8.000

 Italy – more than 9.000 24

 Spain – more than 6.000

3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT

The reasons of 2016 and 2017 drop of arrivals

 The closure of the “Western Balkan Route” by means of

fences put in place along the borders

 The “EU-Turkey statement” of the 18th March 2016,

followed by changes of Greek legislation concerning
asylum procedures

 The “Italy-Libya MoU” of the 2nd February 2017, 25

followed by changes of Italian legislation concerning

asylum procedures
3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT

Bilateral agreements and the outsourcing of borders control

 Agreements between EU Member States and non-EU Member

States – e.g. EU-Turkey statement; Italy-Libya MoU
 Extension of border control beyond the relevant Countries’
territory
 Aim: lowering the flow of migrants
 Modalities
1. Reception centers in the territory of the third State –
preventing departure (Libya or Turkey)
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2. SAR operations by the Coast guard of the third State –
returning to the Country of departure (Libya or Turkey)
3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT
Reception centers and the law of State responsibility

Preamble and Article 2(2) Libya-Italy MoU – Italy commits to provide

financial aid for the establishment of temporary reception centers in Libya
under the exclusive control of the Libyan competent authorities.

Article 16 ARSIWA – Two conditions for holding a State responsible for aiding
or assisting another State in an internationally wrongful act
1. The former State does so with knowledge of the circumstances of the
internationally wrongful act; and
2. The act would be internationally wrongful if committed by the former State.

 “Aid or assistance”: the funding, the technical and logistical support to Libya
 “Another State”: reception centers under the exclusive control of Lybia
 “Knowledge” – mental element: knowledge, facilitation, or willful blindness?
 Opposability – Breaching of obligations binding the aiding or assisting State : 27

prohibition of torture and other inhuman, degrading and cruel treatment or

punishment (ius cogens, Art. 3 CAT, Art. 3 ECHR)
3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT
SAR operations
International legal framework
 UNCLOS - UN Convention on the Law of the Sea (Montego Bay, 1984)
 SOLAS - Safety of Life at Sea (London, 1974)
 SAR- International Convention on Maritime Search and Rescue (Hamburg, 1979)

Obligations
 Flag States and privates: duty to save lives at sea
 Costal States: SAR services
Search: to locate
Rescue:
(i) to retrieve – SAR zones and national Maritime Rescue Coordination Centre (MRCC)
(ii) to provide basic needs – medical treatment, food, shelter
(iii) to deliver to a “place of safety” – sovereignty of States v. Refugee law and IHRL 28
The territorial scope of the duty to assist people in distress at sea includes all maritime
zones.
3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT
SAR operations and the law of State responsibility

Article 2 ARSIWA – Two requirements to hold a State responsible for a

conduct (act or omission)
1. The conduct is attributable to the State under international law, and
2. Breach of an international obligation of the State

 “Conduct”: instruction to Libyan Coast Guard

 “Attribution – subjective element: IMRCC is an organ of the State
(Italy)
 Breaching of an international obligation – objective requirement:
 Violation of the principle of non-refoulement : direct refoulement and 29
indirect refoulement (ius cogens, Art. 3 CAT, Art. 3 ECHR)
 Violation of the prohibition of collective expulsion (Art. 4, Prot. 4)
3. EU MIGRATION CRISIS AND
EXTERNALIZATION OF MIGRATION
MANAGEMENT
SAR operations and the law of State responsibility
Article 16 ARSIWA – Two conditions for holding a State responsible for aiding or
assisting another State in an internationally wrongful act
1. The former State does so with knowledge of the circumstances of the
internationally wrongful act; and
2. The act would be internationally wrongful if committed by the former State.

 “Aid or assistance”: instruction to intercept (Libyan Coast Guard) and to stand

down (NGO)
 “Another State”: State actor (Libyan Coast Guard)
 “Knowledge” – mental element: knowledge, facilitation, or willful blindness?
 Opposability – Breaching of obligations by which the aiding or assisting State
is itself bound:
 Violation of the principle of non-refoulement : direct refoulement and indirect 30
refoulement (ius cogens, CAT, ECHR)
 Violation of the prohibition of collective expulsion (Art. 4, Prot. 4)
Thank you for the attention!

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