Name: Ivy Cherono
Reg No: BA/55/15
Course code: PSA 413
Asylum seekers are individuals fleeing their home countries as a result of their lives being threaten
through persecution for belonging to certain to a certain political group, race among others and
seeking protection from other states through the international protection. Asylum seeker is only
granted the status of being an asylum through formal application that an asylum seeker fill the
application form by providing all the information about him or herself that is then received by the
immigration office of the particular state who determines whether the asylum is eligible for
protection and the right of refugee. The asylum has to wait until the process is concluded so that
he or she is granted the status of an asylum.
There are a number of reasons through which asylum seekers can be denied admission in the host
countries. These reasons include the following; asylum seeker can be denied admission having
committed crime against peace, humanity or war crimes. All those crimes are placed under article
1F (a) of the 1951 convention. These crimes are well defined in a wide variety of legal resource
that includes the 1945 charter of the International Military Tribunal (the London charter article).
Crimes against peace refer to waging of war(s) of aggression or a war in violation of international
treaties, these include the violation of sovereignty of state by use of force which poses a threat
towards the security of a state.
Whereas crime involves murder or the ill treatment of civilian population and prisoners of war,
destruction of cities, towns and villages which are not satisfied with by military necessity, Crimes
against humanity include; murder, extermination, slavery, rape, persecution and genocides, all of
which poses treat to the host countries thus leading to denial of admission for asylum seeker.
Most of the asylum seekers possess more than one nationality which is against the rule of asylum
admission. Most of the states that are faced by a large number of asylums are in fear of these since
those possessing more than one nationality can commit criminal activities in the host countries and
disappear to other states of his or her nationality.
An asylum can be denied admission on grounds that he has committed a serious nonpolitical crime
outside the country as a refugee. These crimes include the genocides as witnessed in Rwanda and
Yugoslavia, thus leading to admission denial because of the fear of similar occurrence in host
country.
An asylum seeker can be denied admission if he or she is guilty of acts contrary to the purposes
and principles of the United Nations. These purposes and principles include; maintenance of
international peace and security and take effective measures for prevention and removal of threats
to the peace, develop friendly relations among nations. All these purposes and principles are
important to UN Charter and if anybody violates these he/she will not be in a position to access
the international protection and rights. The 1951 refugee convention outlines the rights of the
displaced and the legal obligations of states to protect them. This convention has its principle being
non-refoulment, which implies that a refugee should not be returned where they face threats to
their life or freedom.
The principle of non-refoulment is justifiable in a number of ways and refugee platforms that
concern themselves with the protection of refugees. OAU which is an African based organization
had convention governing refugee problems in Africa in 1969which expressed their interest of not
returning refugees to their states. This is evident in article III (3). No person may be subjected by
a member state to measures such as rejection at the frontier, return or expulsion, which should
compel him to return to or remain in a territory where his life, physical integrity or liberty would
be threatened for the reasons set out in Article 1, paragraph 1 and 2. This has been proved by
members of OAU which is now the African union that includes Kenya which has hosted the Somali
nationalist who came seeking refuge.
Non-refoulment is also justified in the American human rights convention adopted in November
1969 article22 (8), “in no case may an alien be deported or returned to a country regardless of
whether or not it is his country of origin, if in that country his right to life or personal freedom is
in danger of being violated because of his race, religion, nationality or political opinions. All above
platform are the international instruments that adopted the principle of non-refoulment from 1951
convention, among these instruments are the Treatment of Refugees adopted by the Asian-African
Legal Consultative committee at its eight sessions in Bangkok in 1960 constitution. Nonrefoulment is practiced at both international and regional levels and these instrumental platforms
concerned with the protection of refugees have been well illustrated by their member states
practicing the principles.
The United States adopted the non-refoulment principle even though it was not a member of 1951
convention but of 1967 protocol, this can be illustrated on the case Immigration and Naturalization
service’s verses pedrag Stevic and the immigration and naturalization service’s verses Marina
Condoza Fonseca. Non-refoulment has also ben illustrated through the establishment of
International Human Rights Treaties preceding the 1951 convention. This treaty supports nonrefoulment of refugees in article 3 of the 1984 convention against torture and other cruel inhuman
or degrading treatment or punishment.
The coming up of 1951 convention set a platform for international and regional levels to define
and adopt the non-refoulment principle that later led to the development of international treaties
that are in support of the principle non-refoulment. To this extent therefore states have practiced
the above principle to justify their concerns towards the well-being of refugees in their states. The
1951 convention provided for the non-refoulment movement but also set up basis under which the
country can practice refoulment on refugees seeking asylum in their territories. The major reason
that was illustrated in the convention as to why a state can refoul her refugees was on the ground
of posing danger to the country. This is evident during the 1993, Rwandan genocide where
thousands of people were displaced and the run for safety in D R Congo, Tanzania and Burundi,
where Tanzania had to close their borders to avoid more Rwandese invading the country as
refugees due to fear of insecurity.
Above all the principle of non-refoulment in the international level works within certain
jurisdiction, it applies both to the refugee and asylum seekers hence it is seekers to determine who
fall under the category of protection irrespective of his/her refugee’s status. The principle of nonrefoulment is applicable to person who fills under the jurisdiction of the state. This jurisdiction is
bound to the person being within the states territory and even sea borders when states intercept
rescue operation in the sea. On the other hand a state can refoul a refugee providing a clear
definition as the reasons why the states decide to return the refugee back to his or her country as
per the reasons stated by the immigration authorities.
Among the practices of the principle of non refoulment is the judicial practices that comes up in
the law of regional human rights civil courts which highlights the scope , content and respective
aspects of non-refoulment, this is evident at the European courts of Human Rights it has played a
key role in sensitizing the need for non-refoulment by focusing on the protection of individual and
meaningfully controlling the application of legal concepts called upon by states such as third world
countries.
The Inter-America court of Human Rights has also practiced the non-refoulment principle though
the cases handled have been few. For example, the judgement in caso Familia Pacheco Tineo
vestado plurinacional de Bolivia in 2013. Also there have existed case laws with regard to the
principle of non-refoulment before national courts which has been affected by judicial practice of
one another as well as Canadian, French, German, Italian, and US courts.
The international treaties have also taken part in the practice of non-refoulment principle through
(the quasi-judicial bodies) that has benchmark to control human rights conventions and monitoring
the implementation of their contents through the Human Rights committee and the committee
against torture.
In conclusion understanding the asylum seeker and their right to protection we look unto the
principle of non refoulment that formed the basis for international protection of refugees and
asylum seekers which took root immediately after the world war as a result of the increase in the
overflow of refugees across the world that need protection hence the international organization of
refugees had to come up with its main principle being the non-refoulment, which prohibited the
return of refugees to their home countries where they could face persecution ,torture or violation
of human rights.
This convention led to the establishment of the international and regional instruments of nonrefoulment that work best towards the protection of refugees. Non-refoulment principle took root
in different parts of the world and has been evident from the 1951 convention to date, which has
enabled many refugees in the world to live without fear of being returned, though the principle
also illustrated the circumstances to which non-refoulment movement can be violated.