The Law Library of Congress, Global Legal Research Center 

(202) 707-6462 (phone) • (866) 550-0442 (fax) • law@loc.gov • http://www.law.gov

Refugee Law and Policy 

In Selected Countries

March 2016
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
Contents 

Comparative Summary ....................................................................................................................1 

Australia ...........................................................................................................................................3 

Brazil ..............................................................................................................................................24 

Canada............................................................................................................................................40 

China ..............................................................................................................................................56 

Denmark .........................................................................................................................................62 

Egypt ..............................................................................................................................................72 

European Union .............................................................................................................................78 

Finland .........................................................................................................................................107 

France ...........................................................................................................................................118 

Germany .......................................................................................................................................135 

Greece ..........................................................................................................................................149 

Israel .............................................................................................................................................165 

Italy ..............................................................................................................................................177 

Japan ............................................................................................................................................190 

Jordan ...........................................................................................................................................197 

Kenya ...........................................................................................................................................201 

Lebanon........................................................................................................................................213 

Russian Federation .......................................................................................................................216 

Spain ............................................................................................................................................227 

Sweden .........................................................................................................................................235 

Switzerland ..................................................................................................................................247 
Turkey ..........................................................................................................................................256 

United Kingdom...........................................................................................................................275 

Bibliography ................................................................................................................................299 
The Law Library of Congress 1

Comparative Summary 

Luis Acosta 

Chief, Foreign, Comparative, and International Law Division II

I. Introduction 

This report describes the law and policy on refugees and other asylum seekers in twenty-two 

geographically 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; processes 

for handling refugees arriving at the border; procedures for evaluating whether an applicant is 

entitled to refugee status; the accommodations and assistance provided to refugees in the 

jurisdiction; requirements for naturalization; and whether asylum policy has been affected by 

international emergencies, such as the current refugee crisis in Europe. A bibliography of 

selected relevant English-language materials from recent years is included. 

II. Refugee Convention 

All of the countries surveyed here, other than Jordan and Lebanon, are states parties to the 1951 

Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. The EU’s 

Common European Asylum System is also based on the principles in the Convention. States 

parties to the Convention are required to protect refugees that are in their territory and to adhere 

to the principle of non-refoulement—that is, to not return refugees to places where their life or 

freedom would be threatened on account of race, religion, nationality, membership in a particular 

social group, or political opinion. In practice, the states parties to the Convention vary 

significantly in their receptivity to asylum seekers and the extent to which conflicting national 

policies affect adherence to norms prescribed in the Convention. 

III. Application and Evaluation 

Asylum seekers are required to submit an asylum application to the country’s competent 

authority. Different procedures apply to different categories of applicants—for example, those 

applying for asylum upon arriving at the border versus those applying from outside the country 

through the United Nations High Commissioner for Refugees (UNHCR), or those applying for 

refugee status versus those applying for humanitarian protection. The Convention permits 

divergent practices in the processing of applications. Screening requirements that involve 

collecting personal details, fingerprints, and photographs of the applicant are common. The 

determining authority typically examines submitted documentation and interviews the applicant. 

Denied applicants commonly have the opportunity to appeal an adverse determination. 
Refugee Law and Policy: Comparative Summary 

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IV. Assistance to Asylum Seekers

The surveys describe the varying types of assistance provided to asylum seekers in the 

jurisdictions. Assistance includes housing, food, access to medical care, education, employment, 

travel documentation, and information about their legal rights. 

V. Family Members 

Most surveyed countries include immediate family members of applicants among those entitled 

to asylum protection. Some countries also have provisions for family reunification, allowing 

those granted international protection to apply for such protection for family members outside 

the country. 

VI. Path to Citizenship

The surveys also show diversity with respect to whether a person’s refugee status affects the 

requirements needed to obtain naturalization. In some countries, the requirements for 

naturalization are no different for refugees and ordinary immigrants, while in others certain 

criteria, such as the required length of residency, vary between refugees and other migrants. 

VII. Monitoring of Applicants and Restrictions on Travel

The surveys describe the monitoring of asylum applicants and the travel restrictions placed 

on 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 the 

jurisdiction and the type of documentation required for allowed travel. 
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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 and others in need of protection. The total number of places 

available under the program each year is currently 13,750, although 12,000 additional 

places have been made available in response to the refugee crisis that has emerged from 

conflicts 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 for 

resettlement. Visas available to offshore applicants provide permanent residence status and 

access to a range of services and assistance. Holders can sponsor family members for visas 

and can also apply to become Australian citizens under the same rules as other permanent 

residents. 

 There has been much debate and many law and policy changes over the years regarding 

the approach to handling asylum seekers who arrive in Australia by boat without a valid 

visa. The current rules mean that anyone who arrives unlawfully after January 1, 2014, will 

be taken to a third country for processing and resettlement; they will not be able to apply 

for visas in Australia. Boats that enter Australian territory may be returned to international 

waters. 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 are 

valid for three or five years. Visa holders cannot sponsor family members and only those 

who meet criteria relating to living and working in regional Australia will have a pathway 

to permanent residence. A permanent protection visa is available to people who seek 

asylum after arriving in Australia on a valid visa.

I. Introduction 

A. Refugee and Humanitarian Programme 

Australia’s immigration system involves two major components: the Migration Programme for 

skilled and family migrants, and the Refugee and Humanitarian Programme “for refugees and 

others in refugee-like situations.”1

 Within the Refugee and Humanitarian Programme there are 

separate tracks for those seeking asylum following arrival in Australia (referred to as “onshore 

protection”2

) and refugees who are outside Australia and in need of resettlement (referred to as 

 

1 Fact Sheet – Australia’s Refugee and Humanitarian Programme, DEPARTMENT OF IMMIGRATION AND BORDER 

PROTECTION (DIBP), https://www.border.gov.au/about/corporate/information/fact-sheets/60refugee (last visited 

Dec. 31, 2015), archived at https://perma.cc/KPG3-ZZHP. 

2 What is ‘Onshore Protection’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-onshoreprotection (last visited Jan. 5, 2016), archived at https://perma.cc/YHV8-97NS.
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“offshore resettlement”).3

 The offshore resettlement component is further divided into two 

categories: the Refugee category and the Special Humanitarian Programme category, which 

allows people in Australia to sponsor close family members in other countries who face human 

rights abuses.4

 Within the onshore protection component, asylum seekers are treated differently 

depending 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 Refugee 

Convention) and its 1967 Protocol. It has been involved in the United Nations refugee 

resettlement program since 1977.5 The majority of people granted visas through the offshore 

Refugee category have already been assessed as refugees by the UN High Commissioner for 

Refugees (UNHCR) and referred to the Australian government for resettlement consideration.6

The total number of places available in the Refugee and Humanitarian Programme is set each 

year by the government.7

 Since 2009–10 (July 1 to June 30), the planned intake has been set at 

13,750, although this was temporarily increased to 20,000 in 2012–13 in line with the 

recommendations of the Expert Panel on Asylum Seekers.8

 Currently, of the 13,750 places 

available, at least 11,000 are to be used for people applying from outside Australia, including 

5,000 places under the Special Humanitarian Programme.9 

 

3 What Is Australia’s Refugee and Humanitarian Programme All About?, DIBP, https://www.border.gov.au/ 

Lega/Lega/Form/Immi-FAQs/what-is-australias-refugee-and-humanitarian-program-all-about (last visited Jan. 5, 

2016), archived at https://perma.cc/X4VZ-LQJ2.

4 What is ‘Offshore Resettlement’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-isoffshore-resettlement (last visited Dec. 28, 2015), archived at https://perma.cc/4R5J-LKB3; The Special 

Humanitarian Programme (SHP), DIBP, https://www.border.gov.au/Trav/Refu/Offs/The-Special-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 PARLIAMENTARY 

LIBRARY (May 2014), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ 

Library/pubs/rp/BudgetReview201415/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.

5

 Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, AUSTRALIAN PARLIAMENTARY LIBRARY

(updated Mar. 2, 2015), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ 

Library/pubs/rp/rp1415/AsylumFacts, archived at https://perma.cc/EBY2-LY8M.

6 Refugee and Humanitarian Visas, DIBP, https://www.border.gov.au/Trav/Refu/Offs/Refugee-and-Humanitarianvisas (last visited Jan. 5, 2016), archived at https://perma.cc/A9U2-DLDM.

7

 Migration Act 1958 (Cth) s 39A, https://www.comlaw.gov.au/Details/C2015C00618, archived at 

https://perma.cc/JVQ9-UAS7.

8

 Janet Phillips, Budget Review 2013–14: Migration and Humanitarian Programs, AUSTRALIAN PARLIAMENTARY 

LIBRARY (May 2013), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ 

Library/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. 

9

 Harriet Spinks, Budget Review 2015–16: Migration and Humanitarian Programs, AUSTRALIAN PARLIAMENTARY 

LIBRARY (May 2015), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ 

Library/pubs/rp/BudgetReview201516/Migration, archived at https://perma.cc/G37T-XXKD. 
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In response to the humanitarian crisis arising from the conflicts in Syria and Iraq, the Australian 

government announced in September 2015 that an additional 12,000 permanent humanitarian 

places would be made available during 2015–16 to those displaced from the two countries.10 

Priority will be given to “the women, children and families of persecuted minorities who have 

sought refuge from the conflict in Jordan, Lebanon and Turkey.”11 The Australian government 

will also contribute about AU$44 million to assist with addressing the humanitarian crisis in Iraq 

and Syria. 

The government has stated that the number of places available in the Refugee and Humanitarian 

Programme will increase to 16,250 in 2016–17 and to 18,750 in 2018–19.12 

B. Relevant Laws 

The Migration Act 1958 (Cth) contains the overarching provisions relating to the grant of visas 

to noncitizens of Australia. The Migration Regulations 1994 (Cth) set out further rules for 

different “classes” and “subclasses” of visas.13 The four classes of “Protection, Refugee and 

Humanitarian” 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 are 

temporary visas. 

Schedule 2 of the Regulations lists the criteria that applicants must meet in order to be granted a 

visa 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 Border 

Protection (DIBP). 

C. Debate Regarding Treatment of Asylum Seekers Arriving by Boat 

There 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 via 

Indonesia and with the assistance of people smugglers.14 Such people are currently referred to 

 

10 Press Release, Hon. Tony Abbott et al., The Syrian and Iraqi Refugee Crisis (Sept. 9, 2015), http://foreign 

minister.gov.au/releases/Pages/2015/jb_mr_150909a.aspx, archived at https://perma.cc/2A9S-QQU5.

11 Id. See also Syrian/Iraqi Humanitarian Crisis, DEPARTMENT OF SOCIAL SERVICES (DSS), https://www.dss.gov. 

au/settlement-and-multicultural-affairs-programs-policy/syrian-iraqi-humanitarian-crisis (last updated Nov. 16, 

2015), archived at https://perma.cc/C6VD-UF2T.

12 Press Release, Peter Dutton MP, Minister – Restoring Integrity to Refugee Intake (May 12, 2015), 

http://www.minister.border.gov.au/peterdutton/2015/Pages/restoring-integrity-to-refugee-intake.aspx, archived at 

https://perma.cc/7DV6-7LMU. 

13 Migration Regulations 1994 (Cth), https://www.comlaw.gov.au/Details/F2015C00989, archived at

https://perma.cc/SFM5-739G. 

14 See Australia Asylum: Why Is It Controversial?, BBC (Nov. 9, 2015), http://www.bbc.com/news/world-asia28189608, archived at https://perma.cc/9927-H75Q. 
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by 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 various 

measures over time to intercept, detain, and process such people.17 Matters debated by 

politicians, advocates, and the public include the mandatory detention of asylum seekers, their 

transfer to detention centers offshore or in third countries, the conditions and oversight of those 

facilities,18 whether particular measures could be in breach of the 1951 Refugee Convention, and 

the effectiveness of different policies in deterring asylum seekers from risking their lives by 

traveling to Australia by boat.19 

The 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 and 

returned to international or Indonesian waters (a measure implemented through “Operation 

Sovereign 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 smugglers 

exploiting vulnerable people and to prevent loss of life at sea.”22

 

15 Illegal Maritime Arrivals (IMAs), DIBP, http://www.ima.border.gov.au/en/Illegal-maritime-arrivals (last visited 

Jan. 5, 2016), archived at https://perma.cc/RPE5-VSQT.

16 Migration Act 1958 (Cth) s 5AA (meaning of “unauthorised maritime arrival”). 

17 See, e.g, Timeline of Major Events in the History of Australia’s Refugee and Humanitarian Program, REFUGEE 

COUNCIL OF AUSTRALIA, http://www.refugeecouncil.org.au/fact-sheets/australias-refugee-and-humanitarianprogram/timeline/ (last updated Feb. 2014), archived at https://perma.cc/F24X-TP7D; Timeline of Events, ASYLUM 

SEEKER RESOURCE CENTER, http://www.asrc.org.au/resources/fact-sheet/timeline-of-events/ (last visited Jan. 5, 

2016), archived at https://perma.cc/D296-SY9J; http://www.aph.gov.au/DocumentStore.ashx?id=ba803e88-71a5-

4283-b5cd-b10cd12e027c; Elibritt Karlsen & Janet Phillips, Developments in Australian Refugee Law and Policy 

(2012 to August 2013), AUSTRALIAN PARLIAMENTARY LIBRARY (Sept. 25, 2014), http://www.aph.gov.au/About_ 

Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/RefugeeLawPolicy, archived at

https://perma.cc/P4GN-XABD. 

18 See Janet Phillips & Harriet Spinks, Immigration Detention in Australia, AUSTRALIAN PARLIAMENTARY LIBRARY

(updated Mar. 20, 2013), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ 

Library/pubs/BN/2012-2013/Detention, archived at https://perma.cc/4STN-FKYA; Immigration Detention and 

Human Rights, AUSTRALIAN HUMAN RIGHTS COMMISSION (Jan. 1, 2014; updated Aug. 14, 2015), 

https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/immigration-detention-andhuman-rights, archived at https://perma.cc/J9K9-35N5.

19 See Harriet Spinks & Ian McCluskey, Parliamentary Library Briefing Book – 44th Parliament: Asylum Seekers 

and the Refugee Convention, AUSTRALIAN PARLIAMENTARY LIBRARY (2013), http://www.aph.gov.au/About_ 

Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/AsylumSeekers, archived at 

https://perma.cc/P933-EZ9J; Sarah Joseph, Operation Sovereign Borders, Offshore Detention and the ‘Drownings 

Argument’, THE CONVERSATION (July 23, 2015), http://theconversation.com/operation-sovereign-borders-offshoredetention-and-the-drownings-argument-45095, archived at https://perma.cc/ESZ4-SCHK.

20 Illegal Maritime Arrivals: When Will My Claims for Asylum Be Considered?, DIBP, http://www.ima.border.gov. 

au/en/Waiting-in-the-community/When-will-my-claims-for-asylum-be-considered (last visited Jan. 5, 2016), 

archived at https://perma.cc/S89G-P2UV. 

21 Operation Sovereign Borders, DIBP, https://www.border.gov.au/about/operation-sovereign-borders (last visited 

Dec. 17, 2015), archived at https://perma.cc/5P55-E9HV.

22 Illegal Maritime Arrivals: When Will My Claims for Asylum Be Considered?, supra note 20. 
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Unauthorized/illegal maritime arrivals who arrived between August 13, 2012, and January 1, 

2014, are currently being invited to apply for temporary visas; they cannot apply for a permanent 

protection visa. Those who arrived prior to August 13, 2012, and whose asylum claims are still 

being processed can also only be granted a temporary visa.23

In 2012, the government reinstituted the transfer of asylum seekers to Nauru and Papua New 

Guinea for processing, as recommended by the Expert Panel on Asylum Seekers. This followed 

the model of the “Pacific Solution,” which had previously been in place in some form between 

2001 and 2008.24 Later, upon the signing of new agreements with the two countries in mid2013, the government announced that asylum seekers who are found to be refugees as a result of 

such offshore processing would also be resettled in those countries, rather than in Australia. A 

further agreement with Cambodia, signed in September 2014, means that people can also be 

resettled there following processing and acceptance of their claims by Nauru.25 As of June 30, 

2015, there were 655 asylum seekers (including eighty-eight children) detained in Nauru, and 

945 asylum seekers detained on Manus Island, Papua New Guinea.26 

The Australian Parliamentary Library notes that, in recent years, “the proportion of asylum 

seekers applying for (onshore) protection in Australia who arrived originally by boat has 

fluctuated significantly in response to shifts in asylum flows and changes in Government 

policy.”27 For example, in 2013–14, about 51.5% of asylum applications were made by people 

who arrived in Australia by air with a valid visa. In the previous year, 68.4% of applications 

were lodged by those arriving by boat without a visa.28 

II. Offshore Component of the Refugee and Humanitarian Programme 

A. Visa Subclasses 

There are four visa subclasses within the refugee and humanitarian visa class (class XB) that 

make up the Refugee category of the Refugee and Humanitarian Programme:29

 

23 Id.

24 See Janet Phillips, The ‘Pacific Solution’ Revisited: A Statistical Guide to the Asylum Seeker Caseloads on Nauru 

and Manus Island, AUSTRALIAN PARLIAMENTARY LIBRARY (Sept. 4, 2012), http://www.aph.gov.au/about_ 

parliament/parliamentary_departments/parliamentary_library/pubs/bn/2012-2013/pacificsolution, archived at 

https://perma.cc/LMJ3-54WS.

25 See Transfer of Asylum Seekers to Third Countries, AUSTRALIAN HUMAN RIGHTS COMMISSION (Jan. 1, 2014, 

updated Aug. 13, 2015), https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/transferasylum-seekers-third-countries, archived at https://perma.cc/V57B-4MR3.

26 Id. 

27 Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, supra note 5. 

28 Id.

29 Refugee and Humanitarian Visas, DIBP, https://www.border.gov.au/Trav/Refu/Offs/Refugee-and-Humanitarianvisas (last visited Jan. 5, 2016), archived at https://perma.cc/C7HQ-M8K2; Migration Regulations 1994 (Cth) 

r 1402. 
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 Refugee visa (subclass 200): a permanent residence visa available to people living outside 

their home country and who are persecuted in their home country.30

 In-country special humanitarian programme visa (subclass 201): a permanent residence visa 

available to people living in and subject to persecution in their home country, and who have 

not been able to leave that country to seek refuge elsewhere.31 

 Emergency rescue visa (subclass 203): a permanent residence visa available to people who 

are subject to persecution in their home country and face an “immediate threat to their life or 

personal security.”32

 Woman at risk visa (subclass 204): a permanent residence visa available to women who are 

living outside their home country, do not have the protection of a male relative, and are in 

danger of “victimisation, harassment or serious abuse” due to their gender.33

As noted above, the majority of people who are considered for visas under the Refugee category 

have been identified and referred to Australia for resettlement by the UNHCR. They must apply 

from outside Australia and meet the definition of “refugee” contained in section 5H of the 

Migration Act 1958 (Cth), including having a “well-founded fear of persecution,” which is 

defined in section 5J. 

Under the Special Humanitarian Programme category, the global special humanitarian 

programme visa (subclass 202) is a permanent residence visa that requires offshore applicants to 

be sponsored by an Australian citizen or permanent resident, or by an Australia-based 

organization (referred to as a “proposer”). Applicants, who must be living outside their home 

country, do not need to meet the definition of “refugee,” but rather must be subject to 

“substantial discrimination amounting to a gross violation” of their human rights in their 

home country.34

Currently, up to 500 places under the Refugee and Humanitarian Programme are available for 

the Community Proposal Pilot program, which allows approved organizations in Australia to 

propose someone in a humanitarian situation outside Australia for a class XB visa. The 

organizations are responsible for lodging applications, and paying for application charges, 

 

30 Refugee Visa (Subclass 200), DIBP, https://www.border.gov.au/Trav/Visa-1/200- (last visited Jan. 5, 2016), 

archived at https://perma.cc/JYM4-BDNZ. 

31 In-country Special Humanitarian Visa (Subclass 201), DIBP, https://www.border.gov.au/Trav/Visa-1/201- (last 

visited Jan. 5, 2016), archived at https://perma.cc/EAJ2-6DNG. 

32 Emergency Rescue Visa (Subclass 203), DIBP, https://www.border.gov.au/Trav/Visa-1/203- (last visited Jan. 5, 

2016), archived at https://perma.cc/S62A-VS5B. 

33 Woman at Risk Visa (Subclass 204), DIBP, https://www.border.gov.au/Trav/Visa-1/204- (last visited Jan. 5, 

2016), archived at https://perma.cc/UVM9-N3Y5. 

34 Global Special Humanitarian Visa (Subclass 202), DIBP, https://www.border.gov.au/Trav/Visa-1/202- (last 

visited Jan. 5, 2016), archived at https://perma.cc/F76R-RKR2. 
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medical examinations, and airfares should a visa be granted. The organizations must also 

support the visa recipients for up to twelve months after they arrive in Australia.35

B. Family Members 

An applicant for any of the above class XB visas can include his or her spouse or partner (except 

in the case of the woman at risk visa), dependent children, and other dependent relatives in the 

visa application.36 Those who are granted a visa and move to Australia are also able to propose 

or sponsor immediate family members37 for permanent residence under the “split family” 

provisions.38 Proposers must have told the Australian authorities of the relationship before their 

visa was granted, and the relative must apply for a visa within five years of the proposer’s visa 

being granted.39 Family members are usually granted a visa in the same subclass as the 

proposer’s visa.40

C. Application Process 

1. Overview 

Applicants for the five types of class XB visas, including as part of the Community Proposal 

Pilot program or under the “split family” provisions, are required to complete Form 842.41 

Proposers under the Refugee and Humanitarian Programme, either for a subclass 202 visa or 

under the “split family” provisions, must fill out Form 681.42 Approved Proposing Organisations 

under the Community Proposal Pilot must fill out Form 1417.43 

 

35 See Refugee Visa (Subclass 200), supra note 30 (Community pilot tab). 

36 See Including Family Members in Your Application, DIBP, https://www.border.gov.au/Trav/Visa/Incl (last visited 

Jan. 5, 2016), archived at https://perma.cc/2QYJ-XY3D. 

37 What Do You Mean by ‘Immediate Family’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/ImmiFAQs/what-do-you-mean-by-immediate-family (last visited Dec. 28, 2015), archived at https://perma.cc/AVJ3-

G66D. 

38 What is a ‘Split Family’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-a-split-family

(last visited Dec. 28, 2015), archived at https://perma.cc/32VM-5VMP. 

39 Who is Eligible Under ‘Split Family’ Provisions?, DIBP, https://www.border.gov.au/Lega/Lega/Form/ImmiFAQs/who-is-eligible-under-split-family-provisions (last visited Jan. 5, 2016), archived at https://perma.cc/XP35-

F7BN. 

40 What Visas Will My Immediate Family Members Receive?, DIBP, https://www.border.gov.au/Lega/Lega/Form/ 

Immi-FAQs/what-visas-will-my-immediate-family-members-receive (last visited Dec. 28, 2015), archived at

https://perma.cc/B93U-GVYW. 

41 DIBP, Form 842: Application for an Offshore Humanitarian Visa (Refugee and Humanitarian (Class XB) Visa) 

(2015), https://www.border.gov.au/Forms/Documents/842.pdf, archived at https://perma.cc/N4T6-NSPH. 

42 DIBP, Form 681: Refugee and Special Humanitarian Proposal (2015), https://www.border.gov.au/Forms/ 

Documents/681.pdf, archived at https://perma.cc/E75V-TCT7. 

43 DIBP, Form 1417: Proposal for Refugee and Special Humanitarian Entrants by Approved Proposing Organisation 

(2015), https://www.border.gov.au/Forms/Documents/1417.pdf, archived at https://perma.cc/83QA-3DYU. 
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Applicants must provide the required documentation, including certified copies of travel or 

identity documents (or a statement explaining why the person does not have these); visa or 

resident permits; and marriage certificates, relationship registrations, and birth certificates of 

children included in the application. In addition, in terms of providing evidence of a person’s 

status as a refugee, the applicant can provide “[e]vidence of registration with any international 

organisation dealing with refugees, for example, the United Nations High Commissioner for 

Refugees (UNHCR)” and a written statement explaining why he or she left the country, or a full 

copy of his or her UNHCR Resettlement Registration Form.44 For the in-country visa subclass, 

applicants must provide a detailed written statement about why they fear remaining in their 

home country.45

The DIPB summarizes the process after an application is made as including the 

following steps:46

 Initial assessment: some applications are refused at this stage. 

 Interview: all applicants referred for further processing are interviewed by an Australian 

immigration officer, who may travel to refugee camps to conduct interviews. 

 Assessment against health and character requirements: in addition to being assessed against 

the relevant criteria for the different visa subclasses, as outlined above, all Australian 

permanent residence visas (as well as provisional visas and some temporary visas) have 

health47 and character requirements,48 as specified in public interest criteria 4001 and 4007 of 

the Migration Regulations 1994 (Cth). These requirements are discussed further below. 

Other applicable public interest criteria include 4003 (foreign policy considerations), 4004 (debts 

to the Australia government), 4009 (intention to live in Australia permanently), and 4019 (if 

eighteen years of age or older, the applicant must sign an Australian “values statement”). 

 

44 See Refugee Visa (Subclass 200), supra note 30 (Visa applicants tab; Document checklist).

45 In-country Special Humanitarian Visa (Subclass 201), supra note 31 (Visa applicants tab; Document checklist). 

46 After an Application Is Lodged, DIBP, https://www.border.gov.au/Trav/Refu/Offs/After-an-application-is-lodged

(last visited Dec. 28, 2015), archived at https://perma.cc/GG73-VVMW. 

47 Immigration Health Requirements, DIBP, https://www.border.gov.au/Trav/Visa/Heal (last visited Jan. 5, 2016), 

archived at https://perma.cc/GB87-EWCZ; Fact Sheet – Health Requirement, DIBP, https://www.border.gov.au/ 

about/corporate/information/fact-sheets/22health (last visited Jan. 5, 2016), archived at https://perma.cc/PA5X5EGQ. 

48 Character and Police Certificate Requirements, DIBP, https://www.border.gov.au/Trav/Visa/Char (last visited 

Jan. 5, 2016), archived at https://perma.cc/N6JC-Q9GA; Fact Sheet – The Character Requirement, DIBP, 

https://www.border.gov.au/about/corporate/information/fact-sheets/79character (last visited Jan. 5, 2016), archived 

at https://perma.cc/HFX5-NPKU. 
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2. Health Requirement 

The health requirement is met if a person if free from a disease or condition that is 

 considered to be a threat to public health or a danger to the Australian community 

 likely to result in significant health care and community service costs to the 

Australian community 

 likely to require health care and community services that would limit the access of 

Australian citizens and permanent residents to those services as they are already in 

short supply49

Applicants for class XB visas will have medical and x-ray examinations and may undergo 

medical treatment before being granted a visa. A waiver of the need to meet the health 

requirement “is possible if compassionate and compelling circumstances exist.”50 A person may 

need to sign a Health Undertaking if he or she is found to have specific health issues that need 

follow-up and monitoring in Australia.51 Those granted a class XB visa will also undertake a 

health check within seventy-two hours of their departure for Australia.52

3. Character Test and Security Assessment 

The “character test” is set out in section 501 of the Migration Act 1958 (Cth). An applicant will 

fail the test if, for example, he or she has a substantial criminal record; he or is or has been a 

member of a group or organization suspected to be involved in criminal conduct; there is a risk 

that he or she would engage in criminal conduct in Australia, or would represent a danger to the 

Australian community or a segment of that community; or he or she “has been assessed by the 

Australian Security Intelligence Organisation [ASIO] to be directly or indirectly a risk 

to security.”53

All class XB visa applicants must also meet public interest criterion 4003, which also relates to 

security assessments by ASIO.54 In 2014–15, ASIO completed 1,316 security assessments of 

offshore refugee visa applicants, compared to 2,310 in 2013–14. ASIO noted that, in 2014–15, it 

“undertook a major revision of its visa security assessment model in order to focus resources on 

 

49 Overview of the Health Requirement, DIBP, https://www.border.gov.au/Trav/Visa/Heal/overview-of-the-healthrequirement (last visited Jan. 5, 2016), archived at https://perma.cc/VG5T-KNKC. 

50 Refugee Visa (Subclass 200), supra note 30 (Visa applicants tab; Who could get this visa). See also Visas That 

Have a Health Waiver Provision, DIBP, https://www.border.gov.au/Trav/Visa/Heal/overview-of-the-healthrequirement/visas-that-have-a-health-waiver-provision (last visited Jan. 5, 2016), archived at 

https://perma.cc/HRY7-N4D6. 

51 Health Undertakings, DIBP, https://www.border.gov.au/Trav/Visa/Heal/meeting-the-health-requirement/healthundertakings (last visited Dec. 29, 2015), archived at https://perma.cc/S3SN-8FPE. 

52 Fact Sheet – Departure Health Check, DIBP, https://www.border.gov.au/about/corporate/information/factsheets/67a-dhc (last visited Jan. 5, 2016), archived at https://perma.cc/N8AJ-JZZD. 

53 Migration Act 1958 (Cth) s 501(6)(g). 

54 Migration Regulations 1994 (Cth) sch 4 pt 1 criterion 4003. See generally AUSTRALIAN SECURITY INTELLIGENCE 

ORGANISATION (ASIO), ASIO’S SECURITY ASSESSMENT FUNCTION (Jan. 29, 2013), https://www.asio.gov.au/img/ 

files/Security-Assessment-Function.pdf, archived at https://perma.cc/CD4Z-74DB. 
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the cases of greatest complexity and potential highest threat. As a result, the number of DIBP 

referrals requiring ASIO assessment declined.”55 

4. Processing Times 

The DIBP notes that it is “difficult to provide useful estimates of average processing times” for 

offshore resettlement visas, as such timeframes may be affected by multiple factors.56 The 

Department’s service standards information states that it expects to finalize 75% of offshore 

humanitarian visa applications within twelve months, but also that, currently, “high numbers of 

applications and a limited number of Special Humanitarian Programme places mean that it may 

take several years for ‘split family’ applications to be decided.”57

D. Assistance to Refugees 

1. Visa and Travel Costs 

Those who apply for a Refugee category visa do not face any costs. If a visa is granted, the 

Australian government pays for travel costs to Australia and for costs prior to travel, such as 

those related to medical examinations and cultural orientation.58 

Applications lodged under the Community Proposal Pilot are subject to an application charge 

and, as noted above, the proposing organizations are also responsible for other costs; visa holders 

cannot be asked to pay back any of the costs.59

While there is no charge for applying for a Global Special Humanitarian Visa (subclass 202), the 

Australian government does not pay for travel costs if a visa is approved. Such costs must be 

paid by the applicant or the proposer; however, financial assistance may be available through the 

International Organization for Migration No-Interest Loan Scheme.60

 

55 ASIO, ASIO REPORT TO PARLIAMENT 2014–2015, at 23 (2015), http://www.asio.gov.au/img/files/ASIOsReport 

ToParliament2014-15.pdf, archived at https://perma.cc/GA2V-E6KF. 

56 Offshore Resettlement: After an Application Is Lodged, DIBP, https://www.border.gov.au/Trav/Refu/Offs/Afteran-application-is-lodged (last visited Jan. 5, 2016), archived at https://perma.cc/9LYH-KF6C. 

57 Refugee or Humanitarian Programme Visa Processing Times, DIBP, https://www.border.gov.au/about/accessaccountability/service-standards/refugee-or-humanitarian-program-visa-processing-times (last visited Dec. 28, 

2015), archived at https://perma.cc/XT9V-YW6E. 

58 See Refugee Visa (Subclass 200), supra note 30 (About this visa tab; Cost). 

59 Id. (Community pilot tab). 

60 Global Special Humanitarian Visa (Subclass 202), supra note 34 (About this visa tab; Cost). 
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2. Australian Cultural Orientation Program 

The Australian Cultural Orientation (AUSCO) Program is provided to class XB visa holders 

aged five years and older while they are still overseas and preparing to travel to Australia.61 The 

five-day course is currently delivered by the International Organization for Migration on behalf 

of DIBP. It is designed to prepare visa holders for travel to Australia; help them settle in 

Australia; help visa holders be realistic about what they can expect of life in Australia; provide 

information about Australian laws, values, and lifestyle; and introduce visa holders to other 

people who will also travel to Australia.62

3. Humanitarian Settlement Services Program and Related Programs 

The Humanitarian Settlement Service (HSS) program helps class XB visa holders to settle in 

Australia for up to a year after their arrival.63 HSS is a voluntary program delivered by 

nongovernment service providers in twenty-three regions throughout Australia.64 The 

organizations assess the person’s needs and provide tailored support, including the following: 

 arrival reception and assistance 

 help to find accommodation (short-term and long-term) 

 property induction 

 an initial food package and start-up pack of household goods 

 orientation information and training 

 help to register with Medicare, health services, Centrelink [for social welfare 

payments], banks and schools 

 help to link with community and recreational programs65

The DIBP states that when HSS support ends, individuals will be able to, for example, find 

government and other services, make appointments, use public transport, resolve tenancy issues, 

 

61 Is There Any Support for Refugee and Humanitarian Visa Holders?, DIBP, https://www.border.gov.au/Lega/ 

Lega/Form/Immi-FAQs/is-there-any-support-for-refugee-and-humanitarian-visa-holders (last visited Jan. 5, 2016), 

archived at https://perma.cc/4TKW-BJ4K. 

62 What Is the Australian Cultural Orientation Program?, DIBP, https://www.border.gov.au/Lega/Lega/Form/ImmiFAQs/what-is-the-australian-cultural-orientation-program, archived at https://perma.cc/PSV7-4V7S; The Australian 

Cultural Orientation (AUSCO) Programme, DSS, https://www.dss.gov.au/our-responsibilities/settlement-andmulticultural-affairs/programs-policy/a-multicultural-australia/the-australian-cultural-orientation-ausco-programme

(last updated July 29, 2015), archived at https://perma.cc/8HL3-XZRZ. 

63 Is There Any Support to Help Me Settle into Life in Australia?, DIBP, https://www.border.gov.au/Lega/Lega/ 

Form/Immi-FAQs/is-there-any-support-to-help-me-settle-into-life-in-australia (last visited Jan. 5, 2016), archived at

https://perma.cc/X75D-BSCQ. 

64 See Humanitarian Settlement Services Locator, DSS, https://www.dss.gov.au/our-responsibilities/settlement-andmulticultural-affairs/programs-policy/settlement-services/settlement-services-locator (last updated July 1, 2015), 

archived at https://perma.cc/4JU2-G6UZ; How Do I Find Humanitarian Settlement Services Support?, DIBP, 

https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/how-do-i-find-humanitarian-settlement-services-support

(last visited Jan. 5, 2016), archived at https://perma.cc/TP5C-DMP2. 

65 What Services Will I Receive?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-serviceswill-i-receive (last visited Jan. 5, 2016), archived at https://perma.cc/9S8D-ZBQF. 
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know how to find work, know how to find education and training, and have a basic 

understanding of Australian law.66

An online Humanitarian Entrants Management System helps the DIBP, Department of Social 

Services, and contracted HSS providers settle holders of refugee and humanitarian visas 

in Australia.67

In addition to HSS, a Complex Case Support program “delivers specialised, and intensive case 

management services to eligible humanitarian entrants with exceptional needs which extend 

beyond the scope of other settlement services.”68 Clients of this program have “intense and 

critical” needs that require multiple services, such as torture and trauma services, disability 

services, counseling, special services for children or youth, and support to manage financial or 

legal issues.69

Settlement grants are also available to organizations to help refugees and humanitarian entrants 

settle in Australia.70

4. Adult Migrant English Program

Refugees entering Australia are eligible for the Adult Migrant English Program (AMEP), which 

provides up to 510 hours of free English language training. AMEP is overseen by the 

Department of Education and Training and is delivered by service providers at around 250 

locations throughout Australia.71

The Department of Social Services also provides a free interpreting service to assist community 

organizations and service providers communicate with Australian citizens and permanent 

residents who do not speak English.72 A free translation service is also provided to eligible 

 

66 What Will I Be Able to Do When My Humanitarian Settlement Services Support Ends?, DIBP, https://www. 

border.gov.au/Lega/Lega/Form/Immi-FAQs/what-will-i-be-able-to-do-when-my-humanitarian-settlement-servicessupport-ends (last visited Jan. 5, 2016), archived at https://perma.cc/58GL-3XBL. 

67 Humanitarian Entrants Management System, DSS, https://www.dss.gov.au/our-responsibilities/settlement-andmulticultural-affairs/programs-policy/settlement-services/humanitarian-entrants-management-system (last updated 

May 27, 2015), archived at https://perma.cc/9TCE-SRW2. 

68 Complex Case Support Programme, DSS, https://www.dss.gov.au/our-responsibilities/settlement-andmulticultural-affairs/programs-policy/settlement-services/complex-case-support-programme (last updated Dec. 7, 

2015), archived at perma.cc/ZWR9-U8GB. 

69 Id.

70 About Settlement Grants, DSS, https://www.dss.gov.au/our-responsibilities/settlement-and-multiculturalaffairs/programs-policy/settlement-services/settlement-grants/what-is-settlement-grants/about-settlement-grants (last 

updated July 1, 2015), archived at https://perma.cc/YDE2-WX4D. 

71 Adult Migrant English Program, DEPARTMENT OF EDUCATION AND TRAINING, http://www.education.gov. 

au/adult-migrant-english-program-0 (last modified Dec. 11, 2015), archived at https://perma.cc/9W4V-G8YU. 

72 Free Interpreting Service, DSS, https://www.dss.gov.au/our-responsibilities/settlement-and-multiculturalaffairs/programs-policy/settle-in-australia/help-with-english/free-interpreting-service (last updated July 10, 2015), 

archived at https://perma.cc/9HZS-LWKB. 
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permanent residents and citizens so that they can have up to ten non-visa-related personal 

documents translated during their first two years in Australia.73

5. Unaccompanied Humanitarian Minors Programme 

The Unaccompanied Humanitarian Minors Programme 

facilitates the provision of relevant care, supervision and support services to minors on 

certain visas in Australia without a parent or legal guardian, who fall under the auspices 

of the Immigration (Guardianship of Children) Act 1946 (IGOC Act), and for whom the 

Minister for Immigration and Border Protection is the legal guardian.74 

Services, which are provided by contracted providers and/or in partnership with state or territory 

child welfare agencies, include torture and trauma services, medical services, English language 

classes, access to education, and mentoring services.75

6. Social Welfare and Health Care Eligibility 

There are no dedicated social welfare payments or special payment rates for refugees.76 As 

permanent residents, refugees are able to apply for various government payments and access 

Australia’s national health care system, Medicare.77 This system “provides free or subsidised 

treatment by some health professionals and free treatment and accommodation as a public patient 

in a public hospital.”78 Refugees and humanitarian entrants are also eligible for a detailed 

health assessment.79 

 

73 Free Translating Service, DSS, https://www.dss.gov.au/our-responsibilities/settlement-and-multiculturalaffairs/programs-policy/settle-in-australia/help-with-english/free-translating-service (last updated Aug. 27, 2015), 

archived at https://perma.cc/8ASJ-UEKH. 

74 Unaccompanied Humanitarian Minors Programme, DIBP, https://www.border.gov.au/about/corporate/ 

information/fact-sheets/uhm-programme (last visited Dec. 29, 2015), archived at https://perma.cc/D9RY-B8XY. 

75 Id.

76 Luke Buckmaster & Jonathon Guppy, Australian Government Assistance to Refugees: Fact Versus Fiction,

AUSTRALIAN PARLIAMENTARY LIBRARY (Nov. 11, 2014), http://www.aph.gov.au/About_Parliament/Parliamentary_ 

Departments/Parliamentary_Library/pubs/rp/rp1415/AustGovAssist-refugees, archived at https://perma.cc/LP6QWEKL. 

77 Payments for Visa Holders, DSS, http://www.humanservices.gov.au/customer/subjects/payments-for-visa-holders

(last updated Aug. 5, 2015), archived at https://perma.cc/D6EY-PTMB. 

78 Health Care, DEPARTMENT OF HUMAN SERVICES, http://www.humanservices.gov.au/customer/subjects/healthcare (last updated Nov. 25, 2015), archived at https://perma.cc/N9HM-L7GW. 

79 Health Assessment for Refugees and Other Humanitarian Entrants into Australia: Questions and Answers, 

DEPARTMENT OF HEALTH, http://www.health.gov.au/internet/main/publishing.nsf/Content/mbsprimarycare_ 

mbsitem_refugees_qanda (last updated Apr. 17, 2014), archived at https://perma.cc/HKC6-V58K. 
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Holders of refugee and humanitarian visas are not subject to the normal waiting period that 

applies to other newly-arrived residents for many payments.80 In addition, a one-time Crisis 

Payment is available to people “experiencing difficult or extreme circumstances,” including 

those who arrive in Australia for the first time on a refugee or humanitarian visa.81 The amount 

of the payment is equal to one week’s payment at a person’s existing income support rate. 

E. Path to Naturalization 

Holders of class XB visas who are aged eighteen years and over can apply for Australian 

citizenship once they have lived in the country for four years. During that time, applicants must 

not have been out of the country for a total of more than one year, and must have been in 

Australia for at least nine months in the year immediately preceding their application.82 

Applicants must also satisfy character requirements and pass a citizenship test.83 The same 

requirements apply to holders of other permanent residence visas.84

III. Onshore Component of the Refugee and Humanitarian Programme 

A. Visa Subclasses 

There are three visa classes, each with one subclass, within the Refugee and Humanitarian 

Programme that are available to people who are in Australia and wish to apply for asylum 

(i.e., “protection”):85

 Permanent protection visa (class XA, subclass 866): a permanent residence visa available to 

people who are in Australia and who are found to “engage Australia’s protection obligations” 

due to being a refugee or meeting the “complementary protection” criteria in the Migration 

Act 1958 (Cth).86

 

80 Newly Arrived Resident’s Waiting Period, DEPARTMENT OF HUMAN SERVICES, http://www.humanservices.gov.au/ 

customer/enablers/newly-arrived-residents-waiting-period (last updated Nov. 18, 2015), archived at

https://perma.cc/JN88-Z9MW. 

81 Crisis Payment, DEPARTMENT OF HUMAN SERVICES, http://www.humanservices.gov.au/customer/services/ 

centrelink/crisis-payment (last updated Dec. 15, 2015), archived at https://perma.cc/2UZG-P66Q. 

82 Applying for Citizenship: How to Apply – Refugee and Humanitarian Entrants, DIBP, https://www.border. 

gov.au/Trav/Citi/Appl/How-to-apply/Refugee-and-humanitarian-entrants (last visited Dec. 29, 2015), archived at

https://perma.cc/W9PJ-VFHJ. 

83 Id.

84 Application Process for Australian Citizenship, DIBP, https://www.border.gov.au/Trav/Citi/Appl/How-toapply/Application-process-for-Australian-citizenship (last visited Dec. 29, 2015), archived at

https://perma.cc/8BHD-PQQC; Australian Citizenship Act 2007 (Cth) ss 21–24, https://www.comlaw.gov.au/ 

Details/C2015C00221, archived at https://perma.cc/5K42-SVB8.

85 Migration Act 1958 (Cth) s 35A; Onshore – Protection, DIBP, https://www.border.gov.au/Trav/Refu/Onsh (last 

visited Jan. 5, 2016), archived at https://perma.cc/HW5Q-NJ5A.

86 Protection Visa (Subclass 866), DIBP, https://www.border.gov.au/Trav/Visa-1/866- (last visited Jan. 5, 2016), 

archived at https://perma.cc/VKA4-45T6; Migration Regulations 1994 (Cth) r 1401. 
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 Temporary protection visa (class XD, subclass 785): a temporary visa that allows holders to 

live and work in Australia for up to three years. People must be in Australia and invited to 

apply for this visa, and must engage Australia’s protection obligations in order to be granted 

a visa. Holders can only apply for another temporary visa in order to remain in Australia 

longer than three years.87

 Safe haven enterprise visa (class XE, subclass 790): a temporary visa that allows holders to 

live and work in Australia for five years. Applicants must be invited to apply and engage 

Australia’s protection obligations. Holders can apply for other substantive visas if they 

spend a minimum amount of time employed or studying in regional Australia.88

To engage Australia’s protection obligations, a person must either be determined to be a refugee 

or a person “in respect of whom the Minister is satisfied Australia has protection obligations 

because the Minister has substantial grounds for believing that, as a necessary and foreseeable 

consequence of the non-citizen being removed from Australia to a receiving country, there is a 

real risk that the non-citizen will suffer significant harm.”89 “Significant harm” is further defined 

in the Migration Act 1958 (Cth), with the different elements arising from Australia’s 

complementary protection obligations under the International Covenant on Civil and Political 

Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 

or Punishment.90

The criteria for all of the above visas, set out in section 36 of the Migration Act 1958 (Cth), also 

include that the applicant is “not assessed by the Australian Security Intelligence Organisation to 

be directly or indirectly a risk to security.”91 In addition, the immigration minister must not 

consider, on reasonable grounds, that the person is a danger to Australia’s security, or that he or 

she is a danger to the Australian community by virtue of being convicted of a particularly serious 

crime.92 The health requirements must also be met. 

B. Permanent Protection Visa for Lawful Arrivals 

As noted in the introduction to this report, the permanent protection visa is now only available to 

people who arrive in Australia legally (i.e., with a valid visa). Those who arrived illegally before 

January 1, 2014, and have not previously been granted a visa can only apply for a temporary 

 

87 Temporary Protection Visa (Subclass 785), DIBP, https://www.border.gov.au/Trav/Visa-1/785- (last visited Jan. 

5, 2016), archived at https://perma.cc/FU82-4RVP; Migration Regulations 1994 (Cth) r 1403. 

88 Safe Haven Enterprise Visa (Subclass 790), DIBP, https://www.border.gov.au/Trav/Visa-1/790- (last visited Jan. 

5, 2016), archived at https://perma.cc/X6FK-TQ47; Migration Regulations 1994 (Cth), r 1404. 

89 Migration Act 1958 (Cth) s 36(2)(aa). 

90 See Protection Visa (Subclass 866), supra note 86 (Visa applicants tab; Who could get this visa). 

91 Migration Act 1958 (Cth) s 36(1B). 

92 Id. s 36(1C). 
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protection visa or safe haven enterprise visa.93 Those who attempt to enter Australia illegally 

after that date will not have their claims processed in Australia and will not be settled there. 

As with class XB visas, an applicant for a permanent protection visa can include eligible family 

members in their application, as long as those relatives are also in Australia at the time the 

application is made.94 Visa holders can also sponsor family members for permanent residence 

under the family migration stream, and in some cases for a protection visa.95 

An applicant who arrived lawfully by air and who is currently in immigration detention due to 

visa expiration or cancellation, or who is in the community and suffering from financial 

hardships and other disadvantages, can get help preparing and lodging an application under the 

Immigration Advice and Application Assistance Scheme.96 Any person who is in immigration 

detention is not required to pay the application charge for the protection visa, which is 

otherwise AU$35.97

Once a person has applied for a protection visa, he or she may be able to receive financial 

assistance, health care, and help with visa-related costs through the Asylum Seeker 

Assistance Scheme.98

People who are granted a protection visa, including while in immigration detention, are eligible 

for support through the Humanitarian Settlement Services program. However, those who were 

granted a protection visa after August 30, 2013, and who were illegal/unauthorized maritime 

arrivals and lived in the community on a “bridging visa” (see Part III(D)(2), below) or in 

community detention, or were non-IMAs who had similarly been living in the community, are 

not eligible for such support.99

Protection visa holders, due to having permanent residence status, may access the public health 

care system and social welfare payments. 

 

93 Applying for Protection in Australia If You Arrived Illegally, DIBP, https://www.border.gov.au/Trav/Refu/ 

protection-application-information-and-guides-paig/applying-for-protection-in-Australia-if-you-arrived-illegally

(last visited Dec. 30, 2015), archived at https://perma.cc/UQJ4-EFQF. 

94 Protection Visa (Subclass 866), supra note 86 (Visa applicants tab; Including family in your application). 

95 Id. (Visa holders tab; What this visa lets you do). 

96 Id. (Visa applicants tab; Help to prepare your application); Fact Sheet – Immigration Advice and Application 

Assistance Scheme (IAAAS), DIBP, https://www.border.gov.au/about/corporate/information/fact-sheets/63advice

(last visited Jan. 5, 2016), archived at https://perma.cc/VYK9-KEX6. 

97 Fees and Charges for Visas, DIBP, https://www.border.gov.au/Trav/Visa/Fees (Other tab; Protection visa 

applications) (last visited Jan. 5, 2016), archived at https://perma.cc/ZA3Y-3UCT. 

98 Protection Visa (Subclass 866), supra note 86 (Visa applicants tab; Applying for assistance after you lodge 

your application). 

99 Am I Eligible for Humanitarian Settlement Services Support?, DIBP, https://www.border.gov.au/Lega/Lega/ 

Form/Immi-FAQs/am-i-eligible-for-humanitarian-settlement-services-support, archived at https://perma.cc/Q4NVMCR3. 
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Since June 3, 2013, a condition (condition 8559) has been applied to protection visas prohibiting 

a visa holder from traveling to his or her home country, or another country from which they 

sought protection. If such travel takes place, a person’s visa can be canceled.100 

As permanent residents, protection visa holders have the same ability, and must meet the same 

requirements, to apply for citizenship as outlined above. 

C. Temporary Visas for Illegal/Unauthorized Arrivals 

1. Immigration Detention 

All noncitizens, including asylum seekers, who enter Australia without a valid visa, or who 

remain in Australia after their visa has expired or is canceled, are classified by law as “unlawful 

non-citizens.”101 However, “the term ‘unlawful’ does not mean that asylum seekers have 

committed a criminal offence. There is no offence under Australian law that criminalises the act 

of arriving in Australia or the seeking of asylum without a valid visa.”102 

Unlawful noncitizens are subject to mandatory immigration detention, during which detention 

they can apply for a visa.103 A person may be held in detention until her or she is granted a visa 

or is deported.104 There is no limit to the length of time that a person may be held in 

immigration detention.105 

2. Bridging Visas 

Since November 2011, illegal/unauthorized maritime arrivals have been able to apply for a 

“bridging visa” (subclass 050-051, bridging visa E or BVE) in order to be released from 

detention and live in the community while awaiting resolution of their asylum claims.106 BVE 

holders may or may not be able to work, depending on the terms of their visa. Those who leave 

 

100 Protection Visa (Subclass 866), supra note 86 (Visa holders tab). 

101 Migration Act 1958 (Cth) s 14. 

102 Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, supra note 5. 

103 Migration Act 1958 (Cth) pt 2 div 7. See generally JOINT SELECT COMMITTEE ON AUSTRALIA’S IMMIGRATION 

DETENTION NETWORK, FINAL REPORT (Mar. 2012), http://www.aph.gov.au/Parliamentary_Business/Committees/ 

Joint/Former_Committees/immigrationdetention/report/index, archived at https://perma.cc/W4GE-3WMG; About 

Immigration Detention, DIBP, https://www.border.gov.au/Busi/Comp/Immigration-detention (last visited Jan. 5, 

2016), archived at https://perma.cc/F734-EG76. 

104 Migration Act 1958 (Cth) s 196. 

105 Asylum Seekers and Refugees Guide, AUSTRALIAN HUMAN RIGHTS COMMISSION, https://www.humanrights.gov. 

au/our-work/asylum-seekers-and-refugees/asylum-seekers-and-refugees-guide (last updated Aug. 14, 2015), 

archived at https://perma.cc/M3ZP-78Y3. 

106 Fact Sheet – Bridging Visas for Illegal Maritime Arrivals, DIBP, https://www.border.gov.au/about/corporate/ 

information/fact-sheets/65onshore-processing-illegal-maritime-arrivals (last visited Jan. 4, 2016), archived at 

https://perma.cc/2P3P-X6YM; Migration Act 1958 (Cth) pt 2 div 3 subdiv AF. 
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Australia may not reenter.107 Some BVE holders are eligible to receive Status Resolution 

Support Services, which could include financial assistance, housing, case worker support, access 

to English lessons, and access to schooling for school-aged children.108

Since December 2013, all adult applicants for a BVE must sign a Code of Behaviour. As part of 

this Code, the person agrees to cooperate with Australian government agencies, which includes 

applying for a visa when invited to do so. Once a person has been invited to apply for a 

temporary visa, as discussed below, he or she is granted a new BVE that will be valid until the 

application has been decided. Such people have permission to work and to access Medicare and 

other services.109 

3. Fast-Track Assessment Process 

There are currently about 30,500 people in Australia, either in detention or on bridging visas, 

who arrived illegally before January 1, 2014.110 Since April 2015, a new “Fast Track 

Assessment Process” has applied to temporary visa applications from people who arrived on or 

after August 13, 2012, and before January 1, 2014, and who were never taken to a Regional 

Processing Centre. The commencement of this process lifted a stay on processing asylum claims 

from such people.111 Applicants must be invited by the immigration minister to make a valid 

temporary visa application.112 Invitations are being sent in the order in which people arrived in 

the country, although priority is being given to those in immigration detention.113 

Under the fast-track process, a DIBP officer conducts an initial assessment of the application, 

which includes interviewing the applicant. If a visa is refused, the DIPB automatically refers the 

case to a new body within the Administrative Appeals Tribunal (AAT) called the Immigration 

Assessment Authority, which undertakes a limited form of review.114 Full administrative review 

by the Migration and Refugee Division of the AAT is precluded under the fast-track process. 

 

107 Bridging Visa E – BVE (Subclass 050-051), DIBP, https://www.border.gov.au/Trav/Visa-1/051- (last visited Dec. 

30, 2015), archived at https://perma.cc/3GZ9-PWH7. 

108 SRSS Programme, DIBP, http://www.border.gov.au/Trav/Refu/Illegal-maritime-arrivals/status-resolutionsupport-services-programme-srss (last visited Dec. 30, 2015), archived at https://perma.cc/7RLC-77MG. 

109 Illegal Maritime Arrivals: Waiting in the Community, DIBP, http://www.ima.border.gov.au/Waiting-in-thecommunity (last visited Dec. 30, 2015), archived at https://perma.cc/M8RA-KW9Y.

110 Illegal Maritime Arrivals: Illegal Maritime Arrivals (IMAs), DIBP, http://www.ima.border.gov.au/ (last visited 

Dec. 30, 2015), archived at https://perma.cc/A326-TE9S. 

111 Paul Farrell, Asylum Seeker Fast-Track Processing to Begin with Temporary Protection Visas, THE GUARDIAN

(May 28, 2015), http://www.theguardian.com/australia-news/2015/may/28/asylum-seeker-fast-track-processing-tobegin-with-temporary-protection-visas, archived at https://perma.cc/W8EQ-W6G3. 

112 Illegal Maritime Arrivals: Fast Track Assessment Process, DIBP, http://www.ima.border.gov.au/en/Applyingfor-a-protection-visa/Fast-Track-Assessment-process (last visited Jan. 5, 2016), archived at https://perma.cc/N8K3-

8PE9. 

113 Illegal Maritime Arrivals: When Will My Claims for Asylum Be Considered?, DIBP, http://www.ima.border.gov. 

au/Waiting-in-the-community/When-will-my-claims-for-asylum-be-considered (last visited Dec. 30, 2015), 

archived at https://perma.cc/9AP6-EWY4. 

114 Illegal Maritime Arrivals: Fast Track Assessment Process, supra note 112. 
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The Law Library of Congress 21

Some people may also be assessed by DIBP to be an “excluded fast track review applicant” and 

not have any review rights. This can occur in situations where the applicant 

 ha[s] access to a safe third country that [he or she] can seek protection from, or [is] a 

national of two or more countries 

 ha[s] previously entered Australia and, while in Australia, made an application for a 

protection visa which was either refused or withdrawn 

 ha[s] been refused protection in another country, including with the United Nations 

High Commissioner for Refugees (UNHCR) 

 ha[s] made manifestly unfounded claims for protection (that is, [his or her] claims 

have no substance) 

 ha[s] given [DIBP] a bogus document as part of [his or her] protection visa 

application and do[es] not have a reasonable explanation for doing so.115

The two visas for which invited applicants may apply are the temporary protection visa and the 

safe haven enterprise visa. 

4. Temporary Protection Visa 

In December 2014, Parliament passed changes to the Migration Act 1958 (Cth) that reintroduced 

the temporary protection visa (TPV), as well introducing the fast-track process.116 The TPV was 

previously a feature of Australia’s immigration law from 1999 until 2008. During that time, 

11,206 people were granted TPVs, with 95% eventually given permanent protection visas.117 As 

noted above, under the current rules, a TPV holder can apply for a new temporary visa to remain 

in Australia, but cannot apply for a permanent visa unless ministerial approval is granted. 

In addition to processing applications received under the invitation and fast-track process 

outlined above, “any valid application for a permanent Protection visa lodged by a person who 

arrived in Australia illegally that was not finalised by 16 December 2014 has been converted into 

a TPV application.”118 The same form, Form 866, is used for the permanent protection visa and 

TPV.119 There is an application charge of AU$35 for a TPV, unless the applicant is in 

 

115 Id.

116 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, 

https://www.comlaw.gov.au/Details/C2015C00219, archived at https://perma.cc/SDJ3-5CAL. 

117 Temporary Protection Visas, ASYLUM SEEKER RESOURCE CENTRE, http://www.asrc.org.au/resources/factsheet/temporary-protection-visas/ (last visited Dec. 31, 2015), archived at https://perma.cc/E8ST-82HL; Harriet 

Spinks, A Return to Temporary Protection Visas?, FLAGPOST (Oct. 18, 2013), http://www.aph.gov.au/About_ 

Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2013/November/A_return_to_Temporary_

Protection_Visas, archived at https://perma.cc/Y5A3-ZAZZ; Temporary Protection Visas, KALDOR CENTRE FOR 

INTERNATIONAL REFUGEE LAW (Apr. 1, 2015), http://www.kaldorcentre.unsw.edu.au/publication/temporaryprotection-visas, archived at https://perma.cc/9BP4-H4Y7. 

118 Illegal Maritime Arrivals: Temporary Protection Visas, DIBP, http://www.ima.border.gov.au/en/Applying-for-aprotection-visa/Temporary-Protection-visas (last visited Jan. 5, 2016), archived at https://perma.cc/6AFZ-MR4Q. 

119 The Protection Visa Application Forms, DIBP, https://www.border.gov.au/Trav/Refu/protection-applicationinformation-and-guides-paig/protection-visa-application-forms (last visited Jan. 6, 2016), https://perma.cc/PXC2-

Z59U. 
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The Law Library of Congress 22

immigration detention.120 The “most vulnerable illegal arrivals” will be notified of their 

eligibility for assistance with preparing their applications, which is provided through the Primary 

Applicant Information Services program.121 

TPV holders can enroll in Australia’s public healthcare system and are eligible for some social 

security benefits. They can receive job-matching assistance and “short-term counselling for 

torture and trauma where required.”122 Children can attend school and adults can access the 

government’s Adult Migrant English Programme.123 TPV holders are not entitled to settlement 

support services, although the immigration minister may grant access.124

TPV applicants can include their family members who are also in Australia on their 

application.125 However, TPV holders cannot sponsor overseas family members for a visa.126 

As temporary residents, they do not have a pathway to gaining citizenship. 

Those granted a TPV after December 16, 2014, must obtain approval to travel to another 

country. Such travel will be approved only if the person demonstrates “compassionate or 

compelling circumstances that justify the travel.”127 If a person travels without approval, his or 

her visa could be canceled. A person must also not travel to his or her home country.128

Persons who were granted a TPV before December 16, 2014, under the old provisions, cannot 

get permission to travel outside the country.129 If such a person leaves Australia his or her visa 

may be canceled. 

5. Safe Haven Enterprise Visa 

The December 2014 amendments also saw the introduction of the safe haven enterprise visa 

(SHEV). The purpose of this visa “is both to provide protection and to encourage enterprise 

through earning and learning while strengthening regional Australia.”130 An unauthorized 

maritime arrival who is granted a SHEV and meets certain conditions may apply for an onshore 

substantive visa, although not a permanent protection visa. Therefore, SHEV may provide a 

 

120 Fees and Charges for Visas, supra note 97. 

121 Temporary Protection Visa (Subclass 785), supra note 87 (Visa applicants tab; Help to prepare your application). 

122 Illegal Maritime Arrivals: Temporary Protection Visas, supra note 118. 

123 Id.

124 Temporary Protection Visas, KALDOR CENTRE FOR INTERNATIONAL REFUGEE LAW, supra note 117. 

125 Temporary Protection Visa (Subclass 785), supra note 87 (Visa applicants tab; Including family in 

your application). 

126 Illegal Maritime Arrivals: Temporary Protection Visas, supra note 118. 

127 Id. 

128 Illegal Maritime Arrivals: Travel Condition 8570, DIBP, http://www.ima.border.gov.au/After-your-applicationis-decided/Travel-condition-8570 (last visited Jan. 5, 2016), archived at https://perma.cc/W324-FX2V. 

129 Id.

130 Migration Act 1958 (Cth) s 35A(3B). 
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“ ‘pathway’ to eventually obtaining permanent residency.”131 The pathway conditions are met if 

a SHEV holder has, for at least three and a half years while on the visa, been employed in 

regional Australia and not received certain social security benefits, or has enrolled and physically 

attended full-time study in regional Australia, or a combination of both.132

People that do not meet the pathway requirements can apply for another SHEV or a TPV, at 

which time there will be another assessment regarding whether they engage Australia’s 

protection obligations. If granted another SHEV, a person’s period of work and/or study during 

both SHEVs will count towards meeting the SHEV pathway requirements.133

SHEV holders who wish to study are not eligible for funding for higher education and so are 

charged international student rates. They are also not eligible for social security benefits for 

students. School-aged children are able to attend and complete elementary and high school 

level schooling.134

SHEV holders can access Medicare as well as employment services available to job seekers, 

including referrals for jobs and assistance with looking for work, writing a resume, and preparing 

for interviews. Social and health-related payments and services that are available to Australian 

workers can be accessed by SHEV holders if they meet the eligibility criteria.135

The same restrictions on travel and sponsoring family members apply to SHEV holders as apply 

to TPV holders. 

 

131 ADMINISTRATIVE APPEALS TRIBUNAL, MIGRATION AND REFUGEE DIVISION, GUIDE TO REFUGEE LAW 1–3 (Dec. 

2015), http://www.mrt-rrt.gov.au/CMSPages/GetFile.aspx?guid=91addcd2-35ac-47c3-a97a-07953552f9c5, 

archived at https://perma.cc/5S5V-N8RL.

132 Illegal Maritime Arrivals: Information for Save Haven Enterprise Visa Holders, DIBP, http://www.ima. 

border.gov.au/After-your-application-is-decided/Information-for-Safe-Haven-Enterprise-visa-holders (last visited 

Jan. 5, 2016), archived at https://perma.cc/F2WL-V7VD. 

133 Id.

134 Id. 

135 Id.
Brazil

Eduardo Soares

Senior Foreign Law Specialist

SUMMARY In Brazil, a constitutional principle provides for the granting of asylum to aliens, while a

federal law regulates immigration issues in general, including asylum. A national council 

subordinate to the Ministry of Labor, which is in charge of coordinating immigration

activities in the country, has issued regulations establishing the requirements for obtaining

refugee or asylum status. 

A federal law from 1997 defined the mechanisms for implementing the Refugee Status Act 

of 1951 in the country and created a national committee under the Ministry of Justice to 

deal with the refugee matters. Under this authority, the committee issued a normative 

resolution detailing the procedures for the request and processing of refugee applications. 

Permanent residency and citizenship are available to holders of asylum and refugee status,

provided that certain requirements are met. However, Brazilian legislation does not provide

any specific provision for the integration of immigrants into the society. State and local 

authorities play no role in immigration matters, and the enforcement of immigration laws 

falls under the jurisdiction of the Department of Federal Police. 

I. Asylum Policies and Procedures

A. Constitutional Principle 

In Brazil, the granting of asylum is a principle identified in the Constitution. Article 4 of the 

Brazilian Constitution states that the international relations of Brazil are governed by, inter alia, 

the principles of the “prevalence” of human rights, cooperation among peoples for the progress 

of humanity, and the granting of political asylum.1

B. Enforcement of Immigration Laws

The Department of Federal Police, which is subordinate to the Ministry of Justice,2 is the 

competent agency to enforce legislation dealing with nationality, immigration, and aliens.3

1 CONSTITUIÇÃO FEDERAL [C.F.], art. 4(II), (IX), (X), http://www.planalto.gov.br/ccivil_03/Constituicao/ 

Constituicao.htm, archived at https://perma.cc/FH8R-Z4Y6.

2 Lei No. 10.683 de 28 de Maio de 2003, art. 27(XIV)(d)(g), http://www.planalto.gov.br/ccivil_03/leis/2003/ 

L10.683.htm, archived at https://perma.cc/4C92-7JH7. 

3 Decreto No. 73.332 de 19 de Dezembro de 1973, art. 1(IV)(h), http://www.planalto.gov.br/ccivil_03/decreto/ 

antigos/d73332.htm, archived at https://perma.cc/9WG5-Q73G. 

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Refugee Law and Policy: Brazil

C. Legal Situation of Aliens in Brazil

Law No. 6,815 of August 19, 1980, the Alien’s Statute (Estatuto do Estrangeiro), defines the 

legal situation of aliens in Brazil and created the National Council of Immigration (Conselho 

Nacional de Imigração, CNIg).

4

 

Article 28 of Law No. 6,815 determines that a foreign national admitted to Brazilian territory as a 

political asylee must comply with all duties imposed on him/her by international law, along with 

the current domestic laws and all additional duties established by the Brazilian government.5 The 

asylee may not leave the country without the express authorization of the Brazilian government; an 

asylee who does so renounces his/her status as an asylee and is not allowed to reenter 

the country.6

Decree No. 86,715 of December 10, 1981, regulates Law No. 6,815. Article 56 of the Decree 

determines that once asylum is granted to a person, the Federal Department of Justice must put in 

writing the terms for the person’s stay in Brazil, including the period of stay and, if applicable, 

additional conditions imposed by international and domestic law currently in force.7

 The record 

must be forwarded to the Department of Federal Police for registration purposes.8 An asylee

who wishes to leave the country and reenter it without renouncing his/her asylee status must 

obtain prior authorization from the Minister of Justice, through the Federal Department 

of Justice.

9

An alien admitted to the country permanently, temporarily, or as an asylee is required to register 

with the Department of Federal Police within thirty days of entering the country or being granted

asylum, be fingerprinted,

10 and comply with the provisions of Decree No. 86,715.

During the registration process, an alien must present a travel document that identifies him/her

and a copy of the Brazilian consular visa application form or, where a visa is being changed, a 

consular certificate of the country of nationality.11

4 Estatuto do Estrangeiro, Lei No. 6.815, de 19 de Agosto de 1980, http://www.planalto.gov.br/ccivil_03/Leis/ 

L6815compilado.htm, archived at https://perma.cc/N7NS-FMM6. 

5 Id. art. 28.

6 Id. art. 29.

7 Decreto No. 86.715, de 10 de Dezembro de 1981, art. 56, http://www.planalto.gov.br/ccivil_03/decreto/ 

Antigos/D86715.htm, archived at https://perma.cc/4M92-WPSY. 

8 Id. art. 56(sole para.).

9 Id. art. 57.

10 Id. art. 58.

11 Id. art. 58(§1).

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Refugee Law and Policy: Brazil

The following information must be recorded in the alien’s registration:

• name and filiation

• city and country of birth

• nationality

• date of birth

• sex

• marital status

• occupation and education level

• place and date of entry into Brazil

• type and number of travel document

• number and classification of consular visa, and date and place of its issue

• means of transportation used to enter the country

• data relating to accompanying minors’ places of residence, work, and study12

The registration will be valid only after it has been verified that the alien legally entered the 

country, after the respective consular visa was issued.

13 When the documentation submitted omits

any data regarding the alien’s civil status, the person must present a birth or marriage certificate, 

consular certificate, or judicial order.14

D. Conventions on Political, Diplomatic, and Territorial Asylum

Brazil is a signatory of the Organization of American States’ conventions on political, 

diplomatic, and territorial asylum.15 Decree No. 1,570 of April 13, 1937, promulgated the 

Convention on Political Asylum;16 Decree No. 42,628 of November 13, 1957, promulgated 

the Convention on Diplomatic Asylum;17 and Decree No. 55,929 of April 14, 1965,

promulgated the Convention on Territorial Asylum in the country.18 

12 Id. art. 58(§2).

13 Id. art. 58(§3).

14 Id. art. 58(§4).

15 Convention on Political Asylum, Dec. 26, 1933, O.A.S.T.S. 34, http://www.oas.org/juridico/english/treaties/a37.html, archived at https://perma.cc/C2RF-5ZA4; Convention on Diplomatic Asylum, Mar. 28, 1954, O.A.S.T.S. 

18, http://www.oas.org/juridico/english/treaties/a-46.html, archived at https://perma.cc/AQG5-TN34; Convention 

on Territorial Asylum, Mar. 28, 1954, O.A.S.T.S. 19, http://www.oas.org/juridico/english/treaties/a-47.html, 

archived at https://perma.cc/DU5V-X8UC. 

16 Decreto No. 1.570, de 13 de Abril de 1937, http://www.planalto.gov.br/ccivil_03/decreto/1930-1949/D1570.htm, 

archived at https://perma.cc/VD6G-6ALF. 

17 Decreto No. 42.628, de 13 de Novembro de 1957, http://www2.camara.leg.br/legin/fed/decret/1950-1959/decreto42628-13-novembro-1957-381360-publicacaooriginal-1-pe.html, archived at https://perma.cc/F839-J694. 

18 Decreto No. 55.929, de 19 de Abril de 1965, http://www.planalto.gov.br/ccivil_03/decreto/1950-1969/D55929.htm,

archived at https://perma.cc/964E-RFSV. 

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Refugee Law and Policy: Brazil

The Convention on Political Asylum asserts the following: 

Article 3.

Political asylum, as an institution of humanitarian character, is not subject to reciprocity. 

Any man may resort to its protection, whatever his nationality, without prejudice to the 

obligations accepted by the State to which he belongs; however, the States that do not 

recognize political asylum, except with limitations and peculiarities, can exercise it in 

foreign countries only in the manner and within the limits recognized by said countries. 

Article 4.

When the withdrawal of a diplomatic agent is requested because of the discussions that 

may have arisen in some case of political asylum, the diplomatic agent shall be replaced 

by his government, and his withdrawal shall not determine a breach of diplomatic 

relations between the two States.19

The Convention on Diplomatic Asylum states as follows:

Article II

Every State has the right to grant asylum; but it is not obligated to do so or to state its 

reasons for refusing it.

Article III

It is not lawful to grant asylum to persons who, at the time of their request for asylum, are 

under indictment or on trial for common offenses or have been convicted by competent 

regular courts and have not served the respective sentence, nor to deserters from land, sea, 

and air forces, except when the acts giving rise to the request for asylum, whatever the case 

may be, are clearly of a political nature.

. . . .

Article V

Asylum may not be granted except in urgent cases and for the period of time strictly 

necessary for the asylee to depart from the country with the guarantees granted by the 

Government of the territorial State, with the objective that his life, liberty, or personal 

integrity may not be endangered, or that the asylee’s safety is ensured in some other way.

Article VI

Urgent cases are those, among others, in which the individual is being sought by persons 

or criminals/gangs/organized crime groups over whom the authorities have lost control, 

or by the authorities themselves, and is in danger of being deprived of his life or liberty 

because of political persecution and cannot, without risk, ensure his safety in any 

other way.

Article VII

If a case of urgency is involved, it shall rest with the State granting asylum to determine 

the degree of urgency of the case.

20

19 Convention on Political Asylum, supra note 15, arts. 3–4.

20 Convention on Diplomatic Asylum, supra note 15, arts. II, III, V, VII.

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Refugee Law and Policy: Brazil

Pertinent provisions of the Convention on Territorial Asylum are as follows: 

Article 1

Every State has the right to admit foreign persons into its territory, as it deems advisable, 

as long as the exercise of this rights does not give rise to a complaint on the part of any 

other State.

. . . .

Article III

No State is under the obligation to surrender to another State, or to expel from its own 

territory, persons persecuted for political reasons or offenses.

. . . .

Article VI

No State is under the obligation to establish any distinction in its legislation or in its 

alien-related regulations or administrative acts, solely because these are political asylees 

or refugees.

. . . .

Article VIII

No State has the right to request another State to restrict the freedom of assembly or 

association for political asylees or refugees when the latter State’s internal legislation 

grants this freedom to all aliens within its territory, unless the purpose of such assembly 

or association is to foment the use of force or violence against the government of the 

soliciting State.

Article IX

At the request of an interested State, the State that grants refuge or asylum shall take 

steps to keep watch over, or to intern at a reasonable distance from its border, those 

political refugees or asylees who are notorious leaders of a subversive movement, as well 

as those against whom there is evidence that they are disposed to join it. 

Determination of the reasonable distance from the border, for the purpose of internment, 

shall depend upon the judgment of the authorities of the State of refuge. 

All expenses incurred as a result of the internment of political asylees and refugees shall 

be charged to the State making the request.

21

II. Refugee Policies and Procedures

A. Refugee Status Act

In 1960, Brazil enacted legislation approving the 1951 Geneva Convention Relating to the Status 

of Refugees, which Brazil had signed on July 15, 1952; in 1972, Brazil enacted legislation 

approving the 1967 Protocol Relating to the Status of Refugees.22 On July 22, 1997, Brazil 

21 Convention on Territorial Asylum, supra note 15, arts. I, III, VI, VIII, IX.

22 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2aa10. 

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Refugee Law and Policy: Brazil

promulgated Law No. 9,474, which defined the mechanisms for implementing the Convention 

and Protocol, created the National Committee for Refugees (Comitê Nacional para os 

Refugiados, CONARE), and defined the Committee’s competence and functional structure.

23 

According to Law No. 9,474, the interpretation of its precepts must be in harmony with the 

Universal Declaration of Human Rights, the Convention and Protocol, and every international 

instrument to which the Brazilian government is a signatory.24 

1. Definition of Refugee

Law No. 9,474 defines the term “refugee” as an individual who,

I - owing to well-founded fear of persecution for reasons of race, religion, nationality, 

social group or political opinion finds himself outside his country of nationality and

cannot or is unwilling to take shelter in that country;

II - not having the nationality and being outside the country where once he had his 

habitual residence, is unable or unwilling to return to it, under the circumstances

described in the preceding item;

III - owing to serious and widespread violations of human rights, is obligated to leave his

country of nationality to seek refuge in another country.25

2. Refugee Status of Family Members

Law No. 9,474 also provides that the effects of refugee status are extended to the spouse, the

ascendants and descendants, and other members of the family group that are economically

dependent on the refugee, provided that they are in the country.26

3. Individuals Who Cannot Benefit from Refugee Status

Categories of persons who cannot benefit from refugee status include those who already enjoy

protection or assistance from organs or agencies of the United Nations other than the United 

Nations High Commissioner for Refugees (UNHCR); are resident in the national territory and

have rights and obligations related to the status of Brazilian national; have committed a crime

against peace, a war crime, a crime against humanity, or a heinous crime, or participated in

html, archived at http://perma.cc/V86S-GU6S; Decreto Legislativo No. 11, de 1960, http://www2.camara.leg.br/ 

legin/fed/decleg/1960-1969/decretolegislativo-11-7-julho-1960-349947-publicacaooriginal-1-pl.html, archived at

https://perma.cc/WG2S-5HUA; Decreto No. 70.946, de 7 de Agosto de 1972, http://www2.camara.leg.br/legin/fed/ 

decret/1970-1979/decreto-70946-7-agosto-1972-419532-publicacaooriginal-1-pe.html, archived at https://perma.cc/ 

H9R9-VMYX.

23 Lei No. 9.474, de 22 de Julho de 1997, https://www.planalto.gov.br/ccivil_03/leis/l9474.htm, archived at

https://perma.ccj/FDS5-XNNB. 

24 Id. art. 48.

25 Id. art. 1. (This and all translations below are by the author.)

26 Id. art. 2.

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Refugee Law and Policy: Brazil

terrorist acts or drug trafficking; or are guilty of acts contrary to the United Nations purposes

and principles.27

4. Legal Status of Refugees

Recognition of refugee status subjects its beneficiary to Law No. 9,474 without prejudice to

international instruments to which the Brazilian government is a party or comes to join in the 

future.28 A refugee enjoys the rights and is subject to the duties of aliens in Brazil, the 

provisions of Law No. 9,474, the Geneva Convention and its Protocol; he/she is also responsible 

for complying with the laws, regulations, and provisions for maintaining public order.29 Under 

the Convention, a refugee is entitled to an identity card evidencing his/her legal status, a work 

permit (carteira de trabalho), and a travel document.30

5. Procedures for Requesting Refugee Status

An alien who reaches the national territory can express his/her desire to apply for recognition as 

a refugee to a migratory authority at the border; the migratory authority then provides the alien

with the necessary information about the recognition procedure. Under no circumstance can an 

alien be deported to the border of a territory where his/her life or freedom would be threatened 

on account of race, religion, nationality, social group, or political opinion. This benefit, 

however, may not be invoked by a refugee considered dangerous to the security of Brazil.

31

Irregular entry into the national territory is no impediment to an alien requesting refugee status

before the competent authorities,

32 who must hear the applicant and prepare a statement detailing

the circumstances of the applicant’s entry into Brazil and the reasons that made the applicant

leave his/her country of origin.

33 The request for refugee status suspends any administrative or 

criminal proceedings for illegal entry that have been started against the petitioner and family 

members accompanying him.

34

6. Refugee Process

To apply for recognition as a refugee, an alien must present him/herself to the competent authority 

and express his/her willingness to be recognized as a refugee.

35 The competent authority must

instruct the applicant to make a statement, which serves as the opening date of the refugee

27 Id. art. 3.

28 Id. art. 4.

29 Id. art. 5.

30 Id. art. 6.

31 Id. art. 7.

32 Id. art. 8.

33 Id. art. 9.

34 Id. art. 10.

35 Id. art. 17.

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Refugee Law and Policy: Brazil

process.

36 The competent authority must inform the UNHCR that the refugee process has been 

initiated and provide the UNHCR with the opportunity to offer suggestions to facilitate 

the process.

37

In addition to the statement provided, with the assistance of an interpreter if necessary, the alien

must fill out a request for recognition as a refugee, which must contain his/her full name, 

professional qualifications, educational background, educational background of accompanying 

family members, and a statement revealing the circumstances and facts that support his/her

request for refugee status, along with relevant evidence.38

The recording of the alien’s declaration of his willingness to be recognized as a refugee and the 

supervision of his completion of the refugee request form must be carried out by qualified 

employees and in conditions that guarantee the confidentiality of the information.39 The process 

of recognizing refugee status is free of charge and considered an urgent matter.

40

7. Authorization for Provisional Residence

Upon receipt of the request for refugee status, the Department of Federal Police must issue a 

protocol authorizing the applicant and his family group’s presence in the national territory until 

the final decision of the refugee process is reached.41 All minors under the age of fourteen must 

be listed on the protocol.42 The protocol enables the Ministry of Labor to issue a provisional

work permit allowing them to be employed for compensation.

43 As long as the request for 

refugee status is pending, the requester is subject to the provisions of Law No. 9,474.44

8. Inquiry and Report

The competent authority must carry out any inquiry required by CONARE and ascertain all the 

facts deemed appropriate for a fair and quick decision, while respecting the principle of 

confidentiality.

45 Once the inquiry period is finished, the competent authority must immediately

prepare a report to be sent to the Secretary of CONARE for inclusion on the agenda of the next 

meeting of that joint committee.

46 The participants in the proceedings concerning the refugee 

36 Id. art. 18.

37 Id. art. 18(sole para.).

38 Id. art. 19.

39 Id. art. 20.

40 Id. art. 47.

41 Id. art. 21.

42 Id. art. 21(§2).

43 Id. art. 21(§1).

44 Id. art. 22.

45 Id. art. 23.

46 Id. art. 24.

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Refugee Law and Policy: Brazil

request must keep confidential any information to which they gain access in the exercise of 

their functions.47

9. Decision, Communication, Registration, and Appeal

The decision for recognition of refugee status is considered a declaratory act and must be duly 

supported by facts and evidence.

48 Once a decision has been reached, CONARE must notify the 

applicant and the Department of Federal Police to institute the appropriate administrative 

measures.49 Following a positive decision, the refugee must be registered with the Department 

of Federal Police, sign a statement of responsibility, and ask for the appropriate identity card.

50

Following a negative decision, the notification to the applicant must contain the elements that 

support the decision. The applicant can appeal to the Minister of Justice within fifteen days from 

the receipt of the notification.51 During the appeal process, the requester and his family members 

are allowed to remain in the country and work in accordance with article 21 of Law No. 9,474.52

The decision of the Minister of Justice is not subject to appeal and must be conveyed to CONARE, 

the applicant, and the Department of Federal Police for appropriate action.53 In the case of a final 

refusal to the request for refuge, the applicant becomes subject to the Alien’s Statute (Estatuto do 

Estrangeiro). Nevertheless, the applicant must not be transferred to his/her country of nationality 

or habitual residence as long as circumstances endangering his/her life, physical integrity, and 

freedom exist, except in cases where the applicant participated in terrorism, engaged in drug 

trafficking, or committed a crime against humanity, a war crime, or other heinous crime.

54

10. Situations Where Refugee Status May Cease or Be Lost

According to article 38 of Law No. 9,474, refugee status ceases in cases where the alien

I - reavails himself of the protection of the country of his nationality;

II - voluntarily recovers the nationality once lost;

III - acquires a new nationality and enjoys the protection of that country;

IV - establishes himself again, voluntarily, in the country which he left, or remained 

outside for fear of persecution;

V - can no longer continue to refuse the protection of the country of nationality because 

the circumstances in which he was recognized as a refugee no longer exist;

47 Id. art. 25.

48 Id. art. 26.

49 Id. art. 27.

50 Id. art. 28.

51 Id. arts. 29, 40.

52 Id. art. 30.

53 Id. arts. 31, 41.

54 Id. arts. 3(§§ III, IV), 32.

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Refugee Law and Policy: Brazil

VI - being a stateless person, is able to return to the country of his former habitual residence, 

as the circumstances in which he was recognized as a refugee have ceased to exist.55

Pursuant to article 39, loss of refugee status occurs

I – with renunciation;

II – with proof of the falsity of the pleas for recognition of refugee status or the existence 

of facts that, had they been known at the time of recognition, would have caused a 

negative decision;

III – with the exercise of activities contrary to national security or public order;

IV – when the alien leaves the national territory without prior authorization from the 

Brazilian Government.

56

A refugee who loses refugee status on the basis of sections I and IV of article 39 is subject to the 

general regime applying to aliens in the country; a refugee who loses refugee status on the basis 

of sections II and III is subject to compulsory measures provided for in Law No. 6,815 of August 

19, 1980, which provides for deportation.

57

11. Local Integration of Refugees

The Law provides that Brazilian authorities should consider the atypical nature of the refugees’ 

situation when refugees are required to present documents issued by their countries of origin or 

its diplomatic and consular representations.

58 In such circumstances, the authorities should take 

the unfavorable situation of the refugees into account and facilitate the recognition of certificates

and diplomas for refugees seeking to obtain resident status and admission in academic 

institutions at all levels.59

12. Resettlement of Refugees

The Law provides for the resettlement of refugees in other countries should be voluntary, 

whenever possible.

60 The resettlement of refugees in Brazil must be accomplished in a planned

manner and with the coordinated participation of state bodies and nongovernmental organizations,

where possible, identifying areas of cooperation and determining areas of responsibility.61

55 Id. art. 38.

56 Id. art. 39.

57 Id. art. 39(sole para.). Article 58 of Law No. 6,815 of August 19, 1980, determines that “deportation” means the 

compulsory exit of an alien.

58 Id. art. 43. 

59 Id. art. 44.

60 Id. art. 45.

61 Id. art. 46.

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13. CONARE

Law No. 9,474 created CONARE, a collective decision-making body under the Ministry of 

Justice62 that, in accordance with the 1951 Convention Relating to the Status of Refugees, the 

1967 Relating to the Status of Refugees, and other sources of international refugee law, is 

responsible for

I - examining the application and declaring the recognition, in the first instance, of 

refugee status;

II – deciding on the cessation, in the first instance, ex officio or at the request of the 

competent authorities, of refugee status;

III - determining the loss, in the first instance, of refugee status;

IV - guiding and coordinating the actions needed for the effective protection, assistance

and legal support to refugees;

V - approving normative instructions clarifying the implementation of Law No. 9,474.

63

On April 30, 2014, CONARE issued Normative Resolution No. 18, which detailed the 

procedures for requesting and processing refugee applications.64 Article 1 of Normative 

Resolution No. 18 determines that a foreigner who is in the country and wants to ask the 

Brazilian government for refuge must go, in person or through his/her attorney or legal 

representative, to any unit of the Federal Police, and present a completed Refuge Request Form 

(Termo de Solicitação de Refúgio).

After the Refuge Request Form is turned in and the applicant’s biometric data (or its equivalent)

is collected, the Federal Police must immediately issue a Refuge Protocol, regardless of any 

hearing that may have been scheduled for a later date.65

The Refuge Protocol is sufficient evidence of the refugee status of the requester and serves as the 

identity card of the alien, granting him/her the rights guaranteed by Law No. 9,474, the

Constitution, international conventions relating to refugees, and the same inherent rights as those 

possessed by aliens lawfully present in the country, until the final judgment on the application 

has been reached.

66

The Refuge Protocol gives the refugee the right to obtain an Internal Revenue Service Card 

(Cadastro de Pessoas Físicas, CPF) and a work permit (Carteira de Trabalho e Previdência Social), 

62 Id. art. 11.

63 Id. art. 12.

64 Resolução Normativa CONARE No. 18, de 30 de Abril de 2014, http://www.justica.gov.br/seus-direitos/ 

estrangeiros/refugio/anexos/resolucao-18-dou-pdf.pdf, archived at https://perma.cc/YS5Y-BKPA. The Termo de 

Solicitação de Refúgio can be accessed at http://www.justica.gov.br/seus-direitos/estrangeiros/refugio/formulariode-solicitacao-de-refugio-portugues.pdf, archived at https://perma.cc/BSG9-TQZA.

65 Id. art. 2. A sample of the Refuge Protocol is available on the website of the Ministry of Justice at http://www. 

justica.gov.br/seus-direitos/estrangeiros/refugio/anexos/protocolo-de-refugio.pdf, archived at https://perma.cc/ 

RRU3-MW8Y. 

66 Resolução Normativa CONARE art. 2(§ 2).

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Refugee Law and Policy: Brazil

which is valid for as long as the Refuge Protocol is valid.

67 When the refuge request is for a family 

group, the Protocol must be issued to each family member individually.68 The Refuge Protocol is 

valid for one year, renewable for equal periods, until a final decision is reached.

69

Normative Resolution No. 18 further details the procedures to be followed after the request for 

refugee status is received by the Federal Police,

70 provides the situations that may cancel the 

application,

71 indicates the appellate procedures in case of a negative decision,72 details the 

procedures to request authorization to travel,

73 and sets forth the procedures for cases involving 

the loss of refugee status.74

B. Permanent Visa

Pursuant to article 1 of Decree No. 840 of June 22, 1993, CNIg, which is subordinate to the 

Ministry of Labor, is responsible, inter alia, for the coordination of immigration activities in 

Brazil.

75 According to Decree No. 840, the deliberations of CNIg must be issued 

through resolutions.76

1. CNIg Resolution No. 6 of August 21, 1997

On August 21, 1997, CNIg issued Resolution No. 6, which determines that the Ministry of Justice,

in order to safeguard the national interests, may grant a permanent visa to an alien who is the 

holder of refugee or asylum status, provided that the person

• has resided in Brazil for at least four years in refugee or asylum status;

• is qualified and employed by an institution installed in the country;

• is a qualified professional recognized by the relevant body in the area; or

• is established in a business resulting from an equity investment that meets the objectives of a 

Normative Resolution issued by the CNIg for the granting of a visa to a foreign investor.

77

67 Id. art. 2(§3).

68 Id. art. 2(§4).

69 Id. art. 2(§5).

70 Id. arts. 3, 4, 7, 8, 12.

71 Id. art. 6.

72 Id. arts. 9, 10.

73 Id. art. 13.

74 Id. art. 14.

75 Decreto No. 840, de 22 de Junho de 1993, art. 1, http://www.planalto.gov.br/ccivil_03/decreto/D0840.htm,

archived at https://perma.cc/N8U3-RTYX. 

76 Id. art. 4.

77 Resolução Normativa CNIg No. 6, de 21 de Agosto de 1997, as amended by Resolução Normativa CNIg No. 91, 

de 10 de Novembro de 2010, art. 1, http://acesso.mte.gov.br/data/files/8A7C816A2E7311D1012F2C60997101FE/ 

Resolu%C3%A7%C3%A3o%20Normativa%20N%C2%BA%2006%20-%20ALTERADA.pdf, archived at

https://perma.cc/5BB6-A6CW.

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Refugee Law and Policy: Brazil

Before permanent residency is granted, the Ministry of Justice must run a background check on 

the alien and ascertain if he/she has been convicted of any criminal offenses.

78

2. Decree No. 86,715 of December 10, 1981

Decree No. 86,715 determines that a permanent visa may be granted to an alien who intends to 

establish permanent residency in the country.79 To obtain a permanent visa, an alien must meet 

the special requirements provided for in the rules for the selection of immigrants established by 

the CNIg, and present the following documentation:

I - passport or equivalent document;

II - international certificate of immunization when necessary;

. . . .

IV- police certificate or equivalent document, at the discretion of the consular authority;

V - proof of residence;

VI - birth or marriage certificate; and

VII - an employment contract stamped by the Secretariat of Immigration of the Ministry 

of Labor, if applicable.

80

Except in cases of force majeure, a permanent visa can be obtained only in the consular 

jurisdiction where the applicant has maintained residence for a minimum of one year immediately

preceding the application for a permanent visa.

81

The granting of a permanent visa may be conditional, for a period not exceeding five years, on 

performing certain activities and settling in a particular region of Brazil. The consular officer

must make a note in the margin of the visa indicating the activity required to be performed by the 

alien and the region where he/she is required to settle.

82

78 Id. art. 1(sole para.).

79 Decreto No. 86.715, art. 26.

80 Id. art. 27.

81 Id. art. 27(§1).

82 Id. art. 28.

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Refugee Law and Policy: Brazil

III. Acquisition of Citizenship

In order to apply for Brazilian citizenship, an alien must satisfy certain conditions. The alien

I - must have civil capacity according to Brazilian law;[83]

II - must be registered as a permanent alien in Brazil;

III - must be in continuous residence in Brazilian territory for at least four years 

immediately before applying for citizenship; 

IV - must read and write the Portuguese language, evaluated on the basis of the social and 

intellectual situation of the applicant;[84]

V - must practice a profession or have enough possessions to guarantee his and his 

family’s maintenance;

VI - must have good behavior;

VII - cannot have been indicted or convicted in Brazil or abroad for a felony; [and]

VIII - must be in good health.

85

The four-year residence requirement may be reduced to three years if the alien possesses real 

estate or an enterprise in Brazil; two years because of the alien’s professional, scientific, or 

artistic abilities; and one year if the alien has a Brazilian spouse, child, or parent, or has 

performed a relevant service to Brazil.

86

The residency requirement is dispensed with in cases where the alien spouse has been married to 

an active Brazilian diplomat for more than five years, or the alien has been employed by a 

Brazilian diplomatic mission or Brazilian consulate for more than ten continuous years. In these 

cases, the only requirement is a thirty-day stay in Brazil.

87

The application for naturalization is filed with the local agency of the Department of Federal 

Police,88 and must indicate whether the applicant intends to have his/her name translated or 

83 Article 5 of the Brazilian Civil Code (CÓDIGO CIVIL, Lei No. 10.406, de 10 de Janeiro de 2002, http://www. 

planalto.gov.br/ccivil_03/LEIS/2002/L10406.htm, archived at https://perma.cc/4XFW-2MVC) determines that 

minority ceases at the completion of eighteen years of age, when the person is then fully capable of practicing all acts 

of civil life. Paragraph 1 of article 5 further establishes that a minor’s incapacity may also cease by the concession of 

the parents, or one of them in the absence of the other; by a public instrument; or independently of the judicial sanction 

or judicial decision of a sixteen-year-old minor (id. art. 5(§1)(I)); by marriage (id. at II); by effective exercise of public 

employment (id. at III); by graduation from an institution of higher education (id. at IV); or by commercial or civil 

establishment, or the existence of an employment relationship that provides a sixteen-year-old minor with economic 

support (id. at V).

84 The knowledge of the Portuguese language is measured by asking the alien applicant to read excerpts of the 

Constitution. Decreto No. 86.715, art. 129(I).

85 Lei No. 6.815, art. 112.

86 Id. art. 113.

87 Id. art. 114.

88 Decreto No. 86.715, art. 125. 

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Refugee Law and Policy: Brazil

adapted to the Portuguese language. The application must also include the documents listed in 

article 119 of Decree Law No. 86,715 of December 10, 1981.89

An alien who is admitted to Brazil by the age of five and permanently lives in the country may,

within two years after reaching adulthood, apply for naturalization.90

An alien admitted to Brazil during the first five years of his/her life and who permanently lives in 

the country may, while still a minor, require through his/her legal representative the issuance of a 

provisional certificate of naturalization.

91 An alien who is the holder of such a provisional 

certificate of naturalization and wants to confirm his/her intention to continue to be a Brazilian 

citizen must manifest such intention to the Minister of Justice within two years after

reaching majority.92

An alien who comes to reside in Brazil before reaching the age of majority and has obtained a 

degree from a national institution of higher education may, within one year after graduation, 

apply for naturalization.93

IV. Services for Immigrants

Brazilian law does not contain any specific provisions concerning services or integration of 

immigrants into the society, or free medical treatment. However, pursuant to the Constitution, it 

is the competence of the federal government, the states, the Federal District, and the 

municipalities to take care of public health and public assistance.94 

According to this constitutional mandate, federal, state, and municipal administrations have 

enacted laws concerning emergency medical treatment and medical treatment of indigent people, as

well as social assistance to the poor, the elderly, children, and the disabled. In these cases, 

depending on the situation, a person can be treated for free at a federal, state, or municipal hospital.

V. Role of State and Local Authorities

The law does not make any reference to the role of state and local authorities in regard to 

immigrants as a whole or, more specifically, to refugees or asylees. 

89 Id. art. 119; see also arts. 120–134.

90 Id. art. 120.

91 Id. art. 121.

92 Id. art. 122.

93 Id. art. 123.

94 C.F. art. 23(II).

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VI. Free Movement in the Country

Apparently, refugees are allowed to move freely in the country and select their place of 

residence, as long as they are not subject to any restriction imposed on them in connection with

their proximity to the country’s border, as provided in the Convention on Territorial Asylum.

VII. New Legislation

Brazil is in the process of changing its immigration legislation, which was enacted in 1980 and 

designed to align with Brazil’s national security needs at that time. Today, human rights are 

being emphasized in proposed legislation under consideration in the Chamber of Deputies and 

the Federal Senate.

A bill in the Chamber of Deputies would provide for the entry, stay, exit, and naturalization of 

aliens in the country, as well as compulsory actions they are to perform. In addition, the bill 

would revamp the National Council of Immigration on National Council of Migration, and 

define offenses and other matters.

95

A bill in the Federal Senate seeks to provide for the rights and duties of migrants and regulate the

entry and stay of foreigners in Brazil; revoke, in part, the Alien’s Statute; regulate the types of 

visas required for aliens entering the country; establish repatriation, deportation, and expulsion 

procedures; provide for the naturalization process, its conditions and types, and cases of loss of

nationality; “address the situation of Brazilian emigrants abroad”; criminalize international 

trafficking in persons; establish administrative offenses related to illegal entry in the country; and 

amend the Brazilian Social Security Law (Previdência Social, Lei No. 8.213, de 24 de Julho de 

1991) to facilitate contributions to Brazilian social security by Brazilian nationals who worked

for a period of time in a foreign country.

96

95 Câmara dos Deputados, PL 5.655/2009, http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?id 

Proposicao=443102, archived at https://perma.cc/B3F5-D4T6. 

96 Senado Federal, Projeto de Lei do Senado No. 288, de 2013, http://www25.senado.leg.br/web/atividade/materias/-

/materia/113700, archived at https://perma.cc/9X8X-EAFN; Lei No. 8.213, de 24 de Julho de 1991, http://www. 

planalto.gov.br/ccivil_03/LEIS/L8213cons.htm, archived at https://perma.cc/7PSP-W9VB.

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Canada

Tariq Ahmad 

Foreign Law Specialist

SUMMARY Canada’s refugee system is regulated mainly by the Immigration and Refugee Protection 

Act and consists of the Refugee and Humanitarian Resettlement Program, for refugees 

seeking protection from outside of Canada, and the In-Canada Asylum Program for person 

who make their claims from inside the country. Most quotas or allocations of refugees are 

supported by the Government Assisted Refugee program where either the Government of 

Canada or Province of Quebec provide the initial support and assistance to refugees being 

resettled in Canada. In addition, Canada allows private organizations or persons to 

identify and sponsor individuals who meet the admissibility and eligibility requirements 

under Canadian law. Canada works closely with the UNHCR along with private sponsors 

to identify refugees for resettlement.

According to the Canada-US Safe Third Country Agreement, which came into effect on 

December 29, 2004, unless certain exceptions apply, a person is ineligible to make a 

refugee claim at the Canada-United States border because the US is considered a “Safe 

Third Country.” 

Canada describes the refugee screening process or procedure as “thorough,” rigorous, and 

multi-staged. It includes requirements for criminal, security, and medical screening. 

I. General Background 

Canada is a party to the United Nations 1951 Convention Relating to the Status of Refugees and 

its 1967 Protocol.

1

 Its refugee system is regulated mainly by the Immigration and Refugee 

Protection Act,

2 which implements the Convention. The refugee resettlement program is 

administered by Citizenship and Immigration Canada (CIC), which manages both the processing 

of applications and resettlement assistance.

3

 On December 15, 2012, major changes were 

introduced to Canada’s refugee status determination system as a result of the Balanced Refugee 

1 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2aa 

10.html, archived at http://perma.cc/V86S-GU6S.

2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, http://laws.justice.gc.ca/eng/acts/i-2.5/FullText.html, 

archived at https://perma.cc/RPX6-7646. 

3 The Oxford Handbook of Refugee and Forced Migration Studies 679 (Elena Fiddian-Qasmiyehet al. eds., 2014). 

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Refugee Law and Policy: Canada

Reform Act4 and the Protecting Canada’s Immigration System Act,

5 “the latter of which amends 

both the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act.”6 

Section 3(2) of the Immigration and Refugee Protection Act stipulates the following objectives 

of the Act in respect to refugees:

(a) to recognize that the refugee program is in the first instance about saving lives and 

offering protection to the displaced and persecuted;

(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm 

Canada’s commitment to international efforts to provide assistance to those in need of 

resettlement;

(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair 

consideration to those who come to Canada claiming persecution; 

(d) to offer safe haven to persons with a well-founded fear of persecution based on race, 

religion, nationality, political opinion or membership in a particular social group, as well 

as those at risk of torture or cruel and unusual treatment or punishment; 

(e) to establish fair and efficient procedures that will maintain the integrity of the 

Canadian refugee protection system, while upholding Canada’s respect for the human 

rights and fundamental freedoms of all human beings; 

(f) to support the self-sufficiency and the social and economic well-being of refugees by 

facilitating reunification with their family members in Canada;

(g) to protect the health and safety of Canadians and to maintain the security of Canadian 

society; and

(h) to promote international justice and security by denying access to Canadian territory 

to persons, including refugee claimants, who are security risks or serious criminals.7

Section 12(3) of the Act stipulates that a foreign national, inside or outside Canada, may be 

selected as a “Convention refugee” or “a person in similar circumstances” eligible for 

permanent residence.8 

Canada’s refugee system primarily consists of two programs: the Refugee and Humanitarian 

Resettlement Program for people seeking protection from outside Canada, and the In-Canada 

Asylum Program for people making refugee protection claims from within Canada.9 

4 Balanced Refugee Reform Act, S.C. 2010, c. 8, http://laws-lois.justice.gc.ca/eng/annualstatutes/2010_8/page1.html, archived at https://perma.cc/WUC4-8SS5.

5 Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, http://laws-lois.justice.gc.ca/eng/annual 

statutes/2012_17/page-1.html, archived at https://perma.cc/S9Y7-E8XU. 

6 Edward C. Corrigan, Understanding the New Refugee Determination System in Canada, RABBLE.CA (Jan. 30, 

2013), available at http://rabble.ca/news/2013/01/understanding-new-refugee-determination-system-canada, 

archived at https://perma.cc/YWG8-XE6. 

7 Immigration and Refugee Protection Act § 3(2)(a)–(h). 

8 Id. § 12(3). 

9 Corrigan, supra note 6.

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Canada considers applications for refugee resettlement from persons outside of Canada under the 

following categories:

• A Government-Assisted Refugee (GAR) referred by the United Nations High Commissioner

for Refugees (UNHCR) or another designated referral organization. GARs receive

government funding for their first year in Canada;

• A Privately-Sponsored Refugee (PSR), who are sponsored by an organization or private

persons during their first year; or

• A person sponsored under a Joint-Assistance Sponsorship Program (JAS), where both the

government and a private sponsor share responsibility for the refugee.

10

According to the Government of Canada, countries with refugee resettlement programs take in 

around 100,000 refugees from abroad each year. Of that number, Canada annually takes in 

roughly one out of every ten refugees through its refugee programs.11 In 2008 and 2009, Canada 

was “the second and third highest destination country for refugee claimants among the group of 

44 industrialized countries.”12 In 2010, the Government committed “to increase the number of 

refugees resettled each year from abroad by 20% (2,500 people).”13 In 2011, Canada was among 

the world’s top ten refugee destinations, receiving 25,000 asylum applications.14 In 2012, this 

trend began to change when Canada “resettled 26% fewer refugees than in 2011.”15 

Refugee claimants declined nearly half from almost 20,500 in 2012 to 10,380 in 2013.16 In 

2013, Canada dropped to sixteenth place as a destination for refugee claimants. 17 In 2014, 

Canada registered 13,500 new applications, about one-third more than in 2013,18 and moved to 

fifteenth place.19 The UNHCR has noted that Canada was one of the countries that “featured 

10 UNHCR RESETTLEMENT HANDBOOK: CANADA (2014), http://www.unhcr.org/3c5e55594.pdf, archived at 

https://perma.cc/32BJ-SRY5. 11 The Refugee System in Canada, GOVERNMENT OF CANADA, http://www.cic.gc.ca/english/refugees/

canada.asp.

(last updated Nov. 10, 2015), archived at https://perma.cc/66TA-X5HT.

12 ISS OF BC, REFUGEE NEWCOMERS IN METRO VANCOUVER: CHANGING FACES AND NEIGHBOURHOODS 2010–2013

(May 2014), http://issbc.org/system/cms/files/1712/files/original/iss-2014-gar-metro-v4.7-web.pdf, archived at 

https://perma.cc/7VAD-RHSC. 

13 Sandra Elgersma, Library of Parliament, Economics, Resources and International Affairs Division, Resettling 

Refugees: Canada’s Humanitarian Commitments, No. 2015-11-E (Apr. 2015), 

http://www.parl.gc.ca/Content/LOP/ResearchPublications/2015-11-e.html#a6, archived at https://perma.cc/NH9VKMW3. 

14 Canada Among Top 10 Global Refugee Destinations, CTVNEWS (June 18, 2012), http://www.ctvnews.ca/world/ 

canada-among-top-10-global-refugee-destinations-1.842523, archived at https://perma.cc/4BBX-GSD8. 

15 ISS OF BC, supra note 12, at 10. 

16 UNHCR, ASYLUM TRENDS 2013: LEVELS AND TRENDS IN INDUSTRIALIZED COUNTRIES 3 (Mar. 2014), 

http://www.unhcr.org/5329b15a9.html, archived at https://perma.cc/A7QF-DSZP. 

17 Id. at 22.

18 UNHCR, ASYLUM TRENDS 2014: LEVELS AND TRENDS IN INDUSTRIALIZED COUNTRIES 3 (Mar. 2015), 

http://www.unhcr.org/551128679.pdf, archived at https://perma.cc/L89J-ZTBL. 

19 Id. at 20.

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among the top-10 recipient countries a few years ago but have registered significantly lower 

numbers of asylum-seekers in recent years. This can potentially be the result of reforms of law 

and asylum policies.”20 

For 2015, the government has agreed to accept up to “14,500 resettled refugees, out of a total of 

285,000 new immigrants.” 21 Canada works closely with the UNHCR along with private 

sponsors to identify refugees for resettlement.22 

II. Canada’s Refugee System

A. Refugee and Humanitarian Resettlement Program

Canada’s Refugee and Humanitarian Resettlement Program is for refugees requiring protection 

who are outside their home country and also outside of Canada.23 According to Section 99(2) of 

the Immigration and Refugee Protection Act, “[a] claim for refugee protection made by a person 

outside Canada must be made by making an application for a visa as a Convention refugee or a 

person in similar circumstances.”24 This section refers to two classes of eligible refugees who 

can be resettled from outside of Canada: (1) the “Convention Refugee Abroad Class,” 25

comprising those who meet the definition of “refugee” in the 1951 Refugee Convention, or (2)

the “Country of Asylum Class,” which “covers those who are outside their home country or the 

country where they normally live and have been, and continue to be, seriously and personally 

affected by civil war or armed conflict, or have suffered massive violations of human rights.”26 

1. Convention Refugee Abroad Class

Persons in the Convention Refugee Abroad Class must be

• . . . outside [their] home country; and

• cannot return there due to a well-founded fear of persecution based on:

o race,

o religion,

o political opinion,

o nationality, or

20 Id. at 13.

21 ELGERSMA, supra note 13. 

22 Corrigan, supra note 6.

23 Id. 

24 Immigration and Refugee Protection Act, §99(2).

25 A “Convention refugee” is defined in the Immigration and Refugee Protection Act under section §96. For more 

guidance on the definition of a Convention refugee. See Guidance on Interpreting the Definition of a Convention 

Refugee, CITIZENSHIP AND IMMIGRATION CANADA (CIC), http://www.cic.gc.ca/english/resources/tools/refugees/ 

resettlement/eligibility/definitions.asp (last updated Feb. 25, 2013), archived at https://perma.cc/K7MZ-FPCT. 

26 The Oxford Handbook of Refugee and Forced Migration Studies, supra note 3, at 679. 

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o membership in a particular social group, such as women or people with a

particular sexual orientation.27

The definition of “Convention refugee” is “forward-looking” and therefore, the fear of 

persecution is reviewed at the time of the examination of the refugee application.28 The office 

must determine if the applicant has a “well-founded fear of persecution” after assessing the 

reasons provided by the applicant. A decision is made based on whether the applicant was 

persecuted or has a well-founded fear of persecution.29 The applicant must establish that the fear 

is reasonable30 and, if the applicant provides more than one ground of persecution, “it is the duty 

of the officer, not the applicant, to identify the reasons for the persecution.”31 These are also the 

criteria established under the Refugee Convention. 

To be eligible for resettlement applicants must also have “no reasonable prospect, within a 

reasonable period, of another durable solution,” such as 

• voluntary repatriation or resettlement in their country of nationality or

habitual residence;

• resettlement in their country of asylum; or

• resettlement to a third country.32

Under this class a person must also be referred by the UNHCR or another referral organization, 

or be sponsored by a private sponsorship group. In terms of funding, a person must also be 

selected as either a government-assisted or privately sponsored refugee,

33 or have the funds 

needed to support him/herself and any dependents after arrival in Canada.34 

2. Country of Asylum Class

Persons in the Country of Asylum Class have left their home because they are seriously or 

personally affected by civil war, armed conflict, or massive human rights violations. A person 

falling within the Country of Asylum Class is statutorily referred to as “a person in similar 

27 Resettlement from Outside Canada, GOVERNMENT OF CANADA, http://www.cic.gc.ca/english/refugees/outside/

(last updated Nov. 10, 2015), archived at https://perma.cc/2DAY-8WZJ. 

28 Convention Refugee Abroad Class: Eligibility Criteria, CIC, http://www.cic.gc.ca/english/resources/ 

tools/refugees/resettlement/eligibility/convention-abroad.asp (last updated Feb. 24, 2014), archived at 

https://perma.cc/P965-LJG5. 

29 Id.

30 Id. According to the CIC, “[a]ctual persecution need not have taken place. The officer must determine that there 

is a serious possibility or reasonable chance that the applicant has a well-founded fear of persecution.” Id.

31 Id.

32 Id.

33 Sponsor a Refugee, GOVERNMENT OF CANADA, http://www.cic.gc.ca/english/refugees/sponsor/index.asp. (last 

updated June 22, 2015), archived at https://perma.cc/S58V-WETG. 

34 Resettlement from Outside Canada, supra note 27.

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circumstances” to a Convention refugee. 35 Section 147 of the Immigration and Refugee 

Protection Regulations stipulates that 

[a] foreign national is a member of the country of asylum class if they have been 

determined by an officer to be in need of resettlement because

(a) they are outside all of their countries of nationality and habitual residence; and

(b) they have been, and continue to be, seriously and personally affected by civil war, 

armed conflict or massive violation of human rights in each of those countries.36

They must also be referred by the UNHCR or another referral organization.

37 This class is not 

eligible for government-funded resettlement; they must be either privately sponsored or 

demonstrate that they have the funds needed to support themselves and any dependents after they 

have arrived in Canada.38 They can also qualify for Joint Assistance Sponsorship (JAS) under 

the definition of “special needs.”39

According to the CIC, an officer must determine whether a person is “[s]eriously and personally 

affected,” meaning that “the applicant has been, and continues to be, personally subjected to 

sustained and effective denial of a basic human right,”40 by an armed conflict, civil war, or a 

massive violation of human rights. They must also determine “whether an armed conflict, civil 

war, or massive violation of human rights has taken place using human rights reports or country 

condition information sources.”41

Both eligibility and admissibility requirements must be met before an application can 

be accepted. 

B. Government-Assisted Refugees (GAR) Program

Government-assisted refugees are Convention Refugees Abroad whose initial resettlement in 

Canada is entirely supported by the Government of Canada or the Province of Quebec. Canada 

allocates a target each year for the resettlement of Convention refugees who are eligible to 

35 Immigration and Refugee Protection Act, See §95(1)(a); see also Immigration and Refugee Protection 

Regulations, SOR/2002-227, § 146(1), http://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/FullText.html, 

archived at https://perma.cc/YN63-L8WX. 

36 Immigration and Refugee Protection Regulations § 147.

37 Resettlement from Outside Canada, supra note 27. It appears the Government of Canada has not yet designated 

other referral organizations.

38 The Oxford Handbook of Refugee and Forced Migration Studies, supra note 3, at 679.

39 Country of Asylum Class: Eligibility Criteria, CIC, http://www.cic.gc.ca/english/resources/tools/refugees/ 

resettlement/eligibility/asylum.asp (last updated Feb. 24, 2014), archived at https://perma.cc/VG3H-98S8. 

40 Id. According to the CIC, “[h]uman rights are defined in the Universal Declaration of Human Rights and in the

International Covenant on Civil and Political Rights (ICCPR). . . . What constitutes a basic human right is 

determined by the international community, not by a specific country. However, when making a determination as to 

whether a fundamental violation of a human right has taken place, it is acceptable to consider Canadian law.” Id.

41 Id.

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receive financial assistance from the Government of Canada.42 The number of refugees to be 

allowed into Canada annually is determined by the Minister of Immigration, Refugees 

and Citizenship.43

Under the Government-Assisted Refugees (GAR) Program, refugees are referred to Canada for 

resettlement by the UNHCR or another referral organization. Individuals cannot apply directly.

A person must register for refugee status with the UNHCR or state authorities to be considered 

by a referral organization.44

A GAR’s initial resettlement in Canada “is entirely supported by the Government of Canada or 

the province of Quebec.” 45 This support is provided by nongovernmental agencies called 

“service provider organizations,” which are funded by the CIC.46

C. Urgent Protection Program (UPP)

The Urgent Protection Program (UPP)47 was established to respond to urgent requests to help

government-assisted refugees (or those identified as JAS cases) that face threats of being 

“returned home, of expulsion or of facing direct threats to their lives.”48 One hundred places are 

allocated under the UPP annually.

UPP cases may have needs that require specialized assistance in Canada and therefore 

procedures for processing these types of cases may be slightly different.49

D. Private Sponsorship of Refugees Program

Private organizations or persons can identify and sponsor individuals who meet the admissibility 

and eligibility requirements under Canadian law. According to the CIC, “[t]he Government of 

Canada encourages involvement of the Canadian public in the resettlement from abroad of 

42 UNHCR Resettlement Handbook: Canada, supra note 10. 

43 CIC, EVALUATION OF GOVERNMENT ASSISTED REFUGEES (GAR) AND RESETTLEMENT ASSISTANCE PROGRAM 

(RAP) (Mar. 2011), http://publications.gc.ca/collections/collection_2012/cic/Ci4-69-2011-eng.pdf, archived at 

https://perma.cc/K4LY-3K3P.

44 Government-Assisted Refugees Program, GOVERNMENT OF CANADA, http://www.cic.gc.ca/english/ 

refugees/outside/gar/index.asp (last updated Nov. 10, 2015), archived at https://perma.cc/E6D5-EXSE. 

45 Id.

46 Id.

47 See CIC, PRIVATE SPONSORSHIP OF REFUGEES PROGRAM ch. 3.3 (2011), http://hamiltondiocese.com/ 

uploads/links/279-Private%20Sponsorships%20of%20Refugees%20Program.pdf, archived at perma.cc/WNW5-

B3Z5.

48 Government-Assisted Refugee Program, CIC, http://www.cic.gc.ca/english/refugees/outside/resettle-gov.asp (last 

updated Sept. 22, 2015), archived at https://perma.cc/ZR9S-2VCG. 

49 Procedures For Processing Urgent Protection Cases: Financial and Other Support, CIC, http://www.cic.gc. 

ca/english/resources/tools/refugees/resettlement/processing/urgent/support.asp (last updated Feb. 25, 2013), 

archived at https://perma.cc/7FYT-WX6X. 

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Convention refugees and members of the Humanitarian Protected Persons Abroad Class.” 50

Private sponsors can be 

• incorporated groups with an on-going agreement with CIC to sponsor refugees 

(Sponsorship Agreement Holders); 

• five Canadians or permanent residents (Groups of Five); and 

• community sponsors.51

Around two-thirds of private sponsorships are provided by “organizations that hold agreements 

with the government for this purpose, termed sponsorship agreement holders (SAHs).” 52

Overall, sponsors can consist of faith-based organizations, nongovernmental organizations 

(NGOs), community organizations, or groups of individuals.53 Private sponsors can identify or 

“name” a refugee they wish to assist themselves or may ask to be matched with a refugee put 

forward for resettlement by the UNHCR or recommended by a Canadian visa office.54

Sponsoring groups agree to provide the refugees with care, lodging, settlement assistance, and 

support for the duration of the sponsorship period. 55 According to the Canadian Council 

of Refugees, 

private sponsorship is additional to government assisted refugees. Each year the 

government makes its commitment, on behalf of Canadians, to resettle a certain number 

of refugees. Anything that Canadians do through private sponsorship is on top of that 

commitment. This means that it allows Canadians to offer protection and a permanent 

home to extra refugees, who would not otherwise have the opportunity.56

Before accepting a person as a refugee, the CIC makes sure that person does not have another 

resettlement option, cannot go home, or cannot stay in the country where they initially sought 

50 UNHCR Resettlement Handbook: Canada, supra note 10, at 10.

51 ELGERSMA, supra note 13 (footnotes in original omitted). 

52 Judith Kumin, Migration Policy Institute, Welcoming Engagement: How Private Sponsorship Can Strengthen 

Refugee Resettlement in the European Union 31(EU Asylum: Towards 2020 Project, Dec. 2015), 

http://www.migrationpolicy.org/sites/default/files/publications/Asylum-PrivateSponsorship-Kumin-FINAL.pdf, 

archived at https://perma.cc/RC5U-9M8F. 

53 Sponsorship Agreement Holders (SAH) and their Constituent Groups (CG), Group of Five individuals (G5), and 

Community Sponsors (CS) can be applicants for private sponsorship. For more information on private sponsorship 

applications, see Application for Refugee Sponsorship, CIC, http://www.cic.gc.ca/english/information/ 

applications/private.asp (last updated Nov. 30, 2015), archived at https://perma.cc/CVP5-LXY5. 

54 UNHCR Resettlement Handbook: Canada, supra note 10, at 10. 

55 Ch. 2, Private Sponsorship of Refugees Program, CIC, GUIDE TO THE PRIVATE SPONSORSHIP OF REFUGEES 

PROGRAM, http://www.cic.gc.ca/English/resources/publications/ref-sponsor/section-2.asp (last updated Nov. 13, 

2015), https://perma.cc/BTW7-ESK6, report table of contents at http://www.cic.gc.ca/english/resources/ 

publications/ref-sponsor/, archived at https://perma.cc/FNN3-8BTL. 

56 Important Changes in Canada’s Private Sponsorship of Refugees Program, CANADIAN COUNCIL OF REFUGEES

(Jan. 2013), http://ccrweb.ca/en/changes-private-sponsorship-refugees, archived at https://perma.cc/4R9L-NFUW. 

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Refugee Law and Policy: Canada

asylum. Once selected, individuals undergo medical, security, and criminal 

background screenings.

57

E. Other Programs

The CIC sometimes partners with organizations to resettle refugees with special needs. As noted 

above, this program is called the Joint Assistance Sponsorship (JAS) Program.

58

Another program, called the Blended Visa Office-Referred Refugees (BVORs) Program, 

introduced in 2013, refers refugees identified by the UNHCR and matches them with a private 

sponsor organization. 

F. In-Canada Asylum Program

Persons can also submit their claims for refugee status from inside Canada. 59 This asylum 

program works to provide refugee protection to people already in Canada who have a wellfounded fear of persecution or are at risk of torture, or cruel or unusual punishment, in their 

home countries. In other words, statutorily, the protection is provided if the Immigration and 

Refugee Board determines that a person is a “Convention refugee” or “a person in need of 

protection.”60 Section 97(1) of the Act stipulates that a person in need of protection is

. . . a person in Canada whose removal to their country or countries of nationality or, if 

they do not have a country of nationality, their country of former habitual residence, 

would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning 

of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the 

protection of that country,

(ii) the risk would be faced by the person in every part of that country and is not 

faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in 

disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide adequate 

health or medical care.61

57 Backgrounder – Refugees and Canada’s Refugee System, CIC, http://www.cic.gc.ca/english/department/ 

media/backgrounders/2007/2007-06-20.asp, archived at https://perma.cc/T6M5-TPJ4. 

58 Joint Assistance Program – Sponsoring Refugees with Special Needs, CIC, http://www.cic.gc.ca/english/ 

refugees/sponsor/jas.asp (last updated May 20, 2015), archived at https://perma.cc/DYL9-2J5D. 

59 Claim Refugee Protection from Inside Canada, CIC, http://www.cic.gc.ca/english/refugees/inside/index.asp (last 

updated June 30, 2015), archived at https://perma.cc/E9ES-RXYR. 

60 See Immigration and Refugee Protection Act § 95(1)(b).

61 Id. § 97(1).

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Not everyone is eligible to seek asylum. For example, people convicted of serious criminal 

offenses or who have had previous refugee claims denied by Canada are not eligible to make 

a claim.62 

A person can apply for refugee status at any port of entry, such as an airport, seaport, or land 

border, or inside Canada at designated CIC offices. At ports of entry a Canadian Border Services 

Agency (CBSA) officer determines a person’s eligibility for a refugee hearing with the Refugee 

Protection Division (RPD) at the Immigration and Refugee Board (IRB). At CIC offices CIC 

officers determine eligibility. Once a person is found eligible to make a refugee claim, a date for 

hearing the claim is provided.63

Members of the RPD assess and determine a person’s claim for refugee protection. The Act 

mandates that RPD members must “decide whether they believe the claimant’s evidence and 

how much weight to give to that evidence. In determining this, members must assess the 

credibility of the claimant, other witnesses and the documentary evidence.”64 Generally, refugee 

claims are heard by the IRB within sixty days unless the applicant is from a designated country 

of origin, in which case the claim could be processed faster.65

G. Refugees Selected by the Province of Quebec

The Canada–Québec Accord relating to Immigration and Temporary Admission of Aliens grants 

the Quebec provincial government exclusive responsibility for selecting immigrants and refugees 

from abroad. 66 Pursuant to the agreement, the Quebec Government selects refugees 67 and 

persons in similar circumstances “from the pool of CIC approved cases for resettlement and 

administers its own private sponsorship program.”68 Persons who are selected by the province 

62 The Refugee System in Canada, supra note 11. 

63 Warren Creates & Jacqueline Bonisteel, Making a Refugee Claim in Canada: What You Need to Know, PERLEYROBERTSON, HILL & MCDOUGALL (Feb. 15, 2013), http://www.perlaw.ca/en/newsroom/publications/2013/2/15/ 

making-a-refugee-claim-in-canada-what-you-need-to, archived at https://perma.cc/SAC3-UTEB. 

64 Assessment of Credibility in Claims for Refugee Protection, IMMIGRATION AND REFUGEE BOARD OF CANADA, 

http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Pages/Credib.aspx, archived at https://perma.cc/E989-

S4R4.

65 Apply – Refugee Status from Inside Canada, CIC, http://www.cic.gc.ca/english/refugees/inside/apply-how.asp

(last updated Nov. 24, 2015), archived at https://perma.cc/H2J2-NYPG. 66 Canada–Québec Accord Relating to Immigration and Temporary Admission of Aliens, February 5, 1991, §§ 17–

20, http://www.cic.gc.ca/english/department/laws-policy/agreements/quebec/can-que.asp, archived at 

https://perma.cc/2JTK-HYKV. 

67 Being Selected by Québec, GOVERNMENT OF QUÉBEC, http://www.immigration-quebec.gouv.qc.ca/en/immigratesettle/refugees-other/refugee-selected/selection.html (last updated May 15, 2014), archived at 

https://perma.cc/NDX7-U9F6. 

68 Sandra Elgersma, supra note 13. 

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are granted a Certificat de sélection du Québec (CSQ).69 According to the CIC, “[w]hen issuing 

a CSQ, Quebec considers its own criteria, including criteria related to settlement potential.”70

III. Refugee Restrictions at the US Border

The United States is designated as a safe third country under the Immigration and Refugee 

Protection Act. According to the Canada-US Safe Third Country Agreement, which came into 

effect on December 29, 2004, a person is ineligible to make a refugee claim at the CanadaUnited States border since the US is considered a “Safe Third Country.” However, there are four 

types of exceptions to this rule, including 

• family member exceptions,

• unaccompanied minor exceptions,

• document holder exceptions, and

• public interest exceptions.

71

Even if a claimant qualifies for one of these exceptions, he/she must still meet all other eligibility 

criteria or requirements of Canada’s immigration legislation.

IV. Post-Referral Steps (Including Screening Process)

If an applicant for refugee status is a UNHCR referral the process begins in the “registration 

stage,” where the UNHCR identifies “legitimate” refugees who undergo initial and subsequent 

interviews and questioning regarding “their past or current military activities or affiliations, and 

their future plans.”72 This process may include using biometric checks and antifraud measures, 

such as iris scanning.

Once a referral is made by the UNHCR, Canadian visa officers in the host country review an 

applicant’s supporting documents, review conditions in the country from which the individual 

fled and where they currently live, and conduct a one-on-one interview with the applicant to 

confirm their story and make sure it is consistent with the account provided in the UNHCR 

69 Quebec Cases, CIC, http://www.cic.gc.ca/english/resources/tools/refugees/quebec.asp (last updated Feb 25, 

2013), archived at https://perma.cc/EB3C-VALN. 

70 Id.

71 Canada-U.S. Safe Third Country Agreement, CIC, http://www.cic.gc.ca/english/department/laws-policy/menusafethird.asp (last updated July 24, 2015), archived at https://perma.cc/WG8Z-748N; Canada-U.S. Safe Third 

Country Agreement, CANADA BORDER SERVICES AGENCY, http://www.cbsa-asfc.gc.ca/agency-agence/stca-etpseng.html (last updated July 23, 2009), archived at https://perma.cc/7PUU-UG7C; Legal Aid Ontario, Restrictions on 

Claims at the United States Border, LAWFACTS, http://lawfacts.ca/refugee/claim/usa (last visited Jan. 13, 2016), 

archived at https://perma.cc/WR9G-Y5H9. 

72 Catherine Solyom, Refugees Screened and Re-screened Before Entry to Canada, MONTREAL GAZETTE (Nov. 17,

2015), http://montrealgazette.com/news/local-news/refugees-screened-and-re-screened-before-entry-to-canada, 

archived at https://perma.cc/J7XL-V3P9. 

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referral file. The visa officer assesses whether a person fits the legal definition of a refugee.73 If 

so, individuals are then screened for “admissibility.” Formal security checks are administered by 

the Canadian Security and Intelligence Service (CSIS)74 and involve the names of applicants 

being run through databases of the Canadian Border Services Agency, Canadian Security 

Intelligence Service, RCMP, and other international databases.

75 Criminal background checks

and medical screenings are also required as a part of the admissibility assessment. 

The visa officer then reviews the material from the CSIS and, if the agency has recommended

that the applicant be admitted and the visa officer approves, the refugee is then granted

permanent residence status.

76 

Once a final decision is made and refugee status is granted, an organization funded by the CIC 

can help the person get the paperwork they need to leave the country in which they are residing 

and travel to Canada.77

V. Assistance for Resettled Refugees 

A. Specific Assistance to Refugees

Preliminary assistance for resettled refugees is provided by the federal government, the Province 

of Quebec, or private sponsors.

78 Refugees selected under the Government-Assisted Refugees 

(GAR) program “are provided with immediate and essential services as well as income support 

under the Resettlement Assistance Program (RAP) to support their initial settlement 

in Canada.”79

73 Laura Best, Op-ed, Why Canada Can Safely Meet Its Refugee Commitments, THE TYEE (last updated Nov. 18, 

2015), http://thetyee.ca/Opinion/2015/11/18/Canada-Can-Meet-Syrian-Refugee-Commitments/, archived at

https://perma.cc/C89E-GRU5. 

74 The Security Screening Program, CANADIAN SECURITY INTELLIGENCE SERVICE, https://www.csisscrs.gc.ca/scrtscrnng/index-en.php (last updated Dec. 22, 2015), archived at https://perma.cc/LTW3-EVDC. 

75 ‘Thorough’ Refugee Screening Puts Canada at Low Security Risk, Says Former Refugee Official, CBCRADIO (Nov. 

16, 2015), http://www.cbc.ca/radio/asithappens/as-it-happens-monday-edition-1.3321310/thorough-refugeescreening-puts-canada-at-low-security-risk-says-former-refugee-official-1.3321326, archived at 

https://perma.cc/G9HR-2Y9T; Marina Jimenez, Syrian Refugees Will Face Three Levels of Intense Screening, 

THESTAR.COM (Nov. 18, 2015), http://www.thestar.com/news/canada/2015/11/18/syrian-refugees-will-face-threelevels-of-intense-screening.html, archived at https://perma.cc/AB9Z-PUA7. 

76 Monique Muise, Here’s How Refugees Are Screened Before Arriving in Canada, GLOBAL NEWS (Nov. 19, 2015), 

http://globalnews.ca/news/2349421/heres-how-refugees-are-screened-before-arriving-in-canada/, archived at 

https://perma.cc/H2BD-SYJ2. 

77 After Your Case Has Been Referred: Get Next Steps, CIC, http://www.cic.gc.ca/english/refugees/outside/ 

gar/referred-after.asp (last updated Nov. 10, 2015), http://globalnews.ca/news/2349421/heres-how-refugees-arescreened-before-arriving-in-canada/, archived at https://perma.cc/2AYD-3QC9. 

78 The Refugee System in Canada, supra note 11. 

79 Financial Support for Government-Assisted Refugees, CIC, http://www.cic.gc.ca/english/helpcentre/results-bytopic.asp?st=11.2, archived at perma.cc/K5GW-RSQY. 

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Resettlement assistance under the RAP is provided to Convention Refugees Abroad and in some 

circumstances “to members of the Country of Asylum Class who have been identified as 

refugees with special needs and who have been admitted to Canada as governmentassisted refugees.”80

Income support under RAP is usually provided “for up to one year or until the client becomes 

self-sufficient, whichever comes first.” 81 Canada provides RAP income support to eligible 

clients who cannot pay for their own basic needs. The level of monthly income support “for 

shelter, food and incidentals are guided by the prevailing provincial or territorial basic social 

assistance rates in the client’s province or territory of residence.”82 

RAP funds provide “immediate and essential services,” typically delivered during the first four 

to six weeks following a client’s arrival in Canada, which include 

• port of entry and reception services;

• temporary accommodation;

• help to find permanent accommodation;

• needs assessments;

• information and orientation; and

• links to other federal and provincial programs, as well as to other settlement

services.83

Most private sponsorships last for one year, but some refugees may be eligible for assistance 

from their sponsors for up to three years. 84 Private sponsors must provide financial and 

emotional support for the length of the sponsorship period, or “until the refugee becomes 

financially independent if this should occur during the sponsorship period.” 85 Assistance 

includes support for housing, clothing, and food.86 These supports are in addition to settlement 

services funded by the CIC to help all newcomers, including refugees, settle and integrate into 

their new communities. 

Loans are also available under the Immigration Loans Program (ILP) for government-assisted 

and privately sponsored refugees within the Convention Refugees Abroad and Country of 

Asylum classes. The ILP covers

80 Financial Assistance – Refugees, CIC, http://www.cic.gc.ca/english/refugees/outside/resettle-assist.asp (last 

updated Sept. 29, 2015), archived at https://perma.cc/6W93-3H3K. 

81 Id.

82 The Refugee System in Canada, supra note 11. 

83 Id.

84 Id.

85 Id.

86 According to the CIC, “[b]lended visa office-referred refugees receive six months of RAP income support, while 

private sponsors provide up to six months of financial support and up to a year of social and emotional support.” Id.

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Refugee Law and Policy: Canada

• costs of medical examinations abroad;

• travel documents; and

• transportation to Canada.87

B. Assistance for All Newcomers, Including Refugees

The CIC also funds a settlement program that helps newcomers settle and adapt to life in Canada. 

The CIC works with provinces and territories, service-provider organizations, and a range of 

other partners and stakeholders in delivering these services, which include 

• needs assessment and referral services to increase newcomers’ awareness of 

their settlement needs and link newcomers to CIC-funded and community 

settlement services;

• information and orientation services to better understand life in Canada and make

informed decisions about the settlement experience. This includes Canadian

Orientation Abroad program, delivered pre-arrival by the International Organization

for Migration, which provides general information on settlement, in person;

• language training in English and French, so newcomers have the language skills to

function in Canada;

• employment services that help newcomers search for, gain and retain employment in

regulated and non-regulated professions;

• community connections services that enable newcomers to receive assistance in

public institutions, build networks with long-time Canadians and established

immigrants with opportunities to fully participate in Canada society; and

• support services which help newcomers access settlement services, such as childcare,

transportation assistance, translation and interpretation services, provisions for

persons with a disability, as well as short-term/crisis counselling to deal with

settlement issues.88

VI. Monitoring and Freedom of Movement

The CIC’s Matching Centre determines a final destination for refugees within Canada, taking 

into account the special needs of the resettled refugee. The Matching Centre determines which 

city “will best suit each refugee’s needs,” based the following: 

• the language they speak;

• where family and friends live in Canada;

• ethnic, cultural and religious communities in the area;

87 Financial Assistance – Refugees, supra note 

80. 88 The Refugee System in Canada, supra note 

11. 

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Refugee Law and Policy: Canada

• medical needs; [and]

• availability of settlement services.89

If an applicant has relatives or close friends who are already in Canada and they wish to live near 

them, they can let the UNHCR know who they are and where they live, and the Government of 

Canada will “try to resettle refugees in a community where they will have the support of people 

they know.”90 According to the CIC Operating Procedure on Overseas Selection and Processing 

of Convention Refugees Abroad Class,

Although government-assisted refugees are under no obligation to remain in a particular 

location, the officer must inform them that any unilateral decision on their part to refuse 

to continue to their selected city of destination or to move to another city or province 

from the selected city of destination may result in a reduction of, or ineligibility for, 

certain RAP benefits.91

VII. Recent Changes to Address the Current Refugee Crisis

Canada’s new Liberal government announced a plan for the rapid resettlement of 25,000 Syrian 

refugees by the end of 2015. The plan was to be implemented in five phases.92 There was some 

public resistance to this plan following the Paris terrorist attacks of November 2015, and the 

Government cited security and operational challenges as reasons for the delayed implementation 

of the plan.

93 At the end of November, the Government announced that it would resettle 10,000 

Syrian refugees by the end of 2015 and another 15,000 by the end of February 2016. On 

February 29, 2016, the Government announced this target had been met.

94 

Canada worked with the UNHCR to identify people in Jordan and Lebanon (a similar process is 

implemented in Turkey where the state registers refugees) who are a low security risk and 

particularly vulnerable, such as women at risk and complete families, and those from the LGBT 

89 The Matching Centre, CIC, http://www.cic.gc.ca/english/refugees/centre.asp, archived at https://perma.cc/FB7FPSWG. 

90 Refugee Resettlement in Canada Information Bulletin No. 3, CIC, http://www.cic.gc.ca/english/resources/ 

publications/bhutanese3.asp (last updated July 21, 2010), archived at https://perma.cc/3W7F-F77W. 

91 CIC, OP 5 Overseas Selection and Processing of Convention Refugees Abroad Class and Members of the 

Humanitarian-protected Persons Abroad Classes para. 15.1 (Aug. 13, 2009), http://www.cic.gc.ca/EnGLish/ 

resources/manuals/op/op05-eng.pdf, archived at https://perma.cc/UH6T-KX6K. 

92 #WelcomeRefugees: How It Will Work, CIC, http://www.cic.gc.ca/english/refugees/welcome/overview.asp (last 

updated Dec. 9, 2015), archived at https://perma.cc/N72A-WJN7. 

93 Rob Gillies, Canada to Resettle 25,000 Syrian Refugees by End of February, YAHOO! NEWS (Nov. 24, 2015),

http://news.yahoo.com/canada-announce-plan-resettle-25-000-refugees-tuesday-050535289.html, archived at 

https://perma.cc/523F-58JM. 

94 Press Release, Government of Canada, Canada Welcomes 25,000 Syrian Refugees (Feb. 29, 2016),

http://news.gc.ca/web/article-en.do?mthd=advSrch&crtr.mnthndVl=&crtr.mnthStrtVl=&crtr.page=3&nid= 

1036919&crtr.yrndVl=&crtr.kw=Syrian+refugees&crtr.yrStrtVl=&crtr.dyStrtVl=&crtr.dyndVl, archived at

https://perma.cc/6PDN-66TL. 

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Refugee Law and Policy: Canada

community.95 According to reports, single, unaccompanied men were to be excluded from the 

government resettlement program for the time being. However, government officials stated that 

“those individuals can still apply to come to Canada through private sponsorship programs or 

could possibly be resettled through a government.”96

The Canadian government describes the refugee screening process for Syrians as robust and 

multi-layered. 97 Robert Vineberg, a senior fellow at the Canada West Foundation, has 

summarized the expedited process for Syrian refugees, stating that

[t]he revised Liberal plan involved sending large processing teams to refugee camps in 

Turkey, Jordan and Lebanon. The Canadian Armed Forces would establish the 

processing centres and provide Medical Corps staff to conduct physical examinations of 

the refugees. Immigration officers, agents from the Canadian Security Intelligence 

Service and officers from the Royal Canadian Mounted Police worked hand in hand in 

the camps to process the refugees... In all, over 600 military and public service personnel 

were deployed to the Middle East to carry out the operation and they were supported by 

thousands more in Canada.98

VIII. Path to Naturalization

According to the CIC, in order to be eligible for Canadian citizenship through naturalization, a 

person must meet certain requirements related to (1) age, (2) permanent resident status, 

(3) residence in Canada (an applicant must be “physically present in Canada as a permanent 

resident for at least 1,460 days during the six years immediately before the date of [his/her] 

application” 99) (4) language abilities, (5) criminal history, and (6) knowledge of Canada. 100

Refugees who are granted permanent resident status who fulfill these requirements are eligible to 

acquire Canadian citizenship through naturalization. 

95 #WelcomeRefugees: Phase 1 – Identifying Syrian Refugees to Come to Canada, CIC, http://www.cic.gc.ca/ 

english/refugees/welcome/phase1.asp (last updated Dec. 2, 2015), archived at https://perma.cc/J7MP-Q3DV. 

96 Paula Newton, Canada: We’ll Resettle 25,000 Syrian Refugees, CNN (Nov. 24, 2015), http://www.cnn.com/ 

2015/11/24/americas/canada-syrian-refugees/, archived at https://perma.cc/UW45-H7BF. 

97 #WelcomeRefugees: How It Will Work, supra note 92. 

98 Robert Vineberg, 25,000 Syrian Refugees in Four Months: How Did Canada Do It? THE INTERPRETER (Mar. 9, 

2016), http://www.lowyinterpreter.org/post/2016/03/09/25000-Syrian-refugees-in-four-months-How-did-Canadado-it.aspx, archived at https://perma.cc/K4UQ-E5QA. 

99 Determine Your Eligibility – Citizenship, CIC, http://www.cic.gc.ca/english/citizenship/become-eligibility.asp

(last updated June 13, 2015), archived at https://perma.cc/FW53-6QW5. 

100 Id.

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People’s Republic of China 

Laney Zhang 

Senior Foreign Law Specialist

SUMMARY China acceded to the 1951 Convention Relating to the Status of Refugees and its 1967 

Protocol in September 1982. Despite its accession to the treaties, the domestic law on 

refugees and asylum is still under development. Currently, the only relevant legal 

provisions are article 32 of the Constitution and article 46 of the Exit and Entry Law. The 

former provides the general principle on asylum, declaring that the country may grant 

asylum to foreigners who request it for political reasons. The latter provides that refugees 

and asylum seekers in China may obtain ID cards. A comprehensive refugee law that 

would cover a wide range of issues relating to refugees and asylum is under consideration. 

 The UNHCR Beijing Office conducts refugee registration and refugee status 

determinations in China. Recognized refugees are permitted to remain temporarily in 

China while the UNHCR is seeking a durable solution, which most of the time involves 

resettlement in a third country. Non-Indochinese refugees are generally treated as aliens 

who have no right to employment. They are supported by the UNHCR in terms of food, 

accommodation, health care, and children’s education. 

In addition to article 46 specifically on refugees, refugees and asylum seekers in China are 

subject to other provisions of the Exit and Entry Law governing foreigners and stateless 

persons, as well as other relevant Chinese laws. For example, foreigners who are sixteen 

years old or older must carry their documentation for examination by public security 

organs. Foreigners must also submit their residence permits to the local public security 

organs wherever they reside. Hotels must report information concerning foreign guests to 

the local public security organs. 

 

I. General Background 

A. Indochinese Refugees 

Although not a traditionally popular destination for refugees and asylum seekers, the People’s 

Republic of China (PRC or China)1

 was one of the top ten refugee-hosting countries recognized 

by the United Nations High Commissioner for Refugees (UNHCR) until it was recently replaced 

by Sudan in mid-2015, largely due to the fact that it accepted and still hosts a large number of 

Indochinese refugees.2

 In the late 1970s, China accepted about 260,000 refugees who fled from 

Vietnam to China. They were provided refugee status and settled in southern China. Most of the 

 

1

 This report does not cover the laws in effect in Hong Kong, Macao, and Taiwan. 

2

 UNHCR MID-YEAR TRENDS 2015 at 6 (2015), http://www.unhcr.org/56701b969.html, archived at

https://perma.cc/S4P9-F558. 
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Indochinese refugees were ethnic Chinese.3

 According to the UNHCR, the Indochinese refugees 

and their children are well integrated and receive protection from the Chinese government.4

 

B. Non-Indochinese Refugees 

Other than the Indochinese refugees, China attracted few refugees and asylum seekers before the 

mid-1990s.5 In the past two decades, the number of refugees and asylum seekers coming to 

China has gradually increased, and the country “is becoming a transit and destination country for 

mixed migration as a result of its geographical and economic importance.”6

 

According to data provided by the UNHCR, as of June 2015, there were 301,057 refugees, 

among whom 300,000 were Indochinese refugees, and 564 asylum seekers in China.7

 Top 

countries of origin for the non-Indochinese refugees and asylum seekers in China are Somalia, 

Nigeria, Iraq, and Liberia.8

 

C. Inflows of Displaced Foreigners from Neighboring Countries

There have also been large-scale inflows of displaced foreigners from neighboring countries, 

such as North Korea and Burma (Myanmar), whom the Chinese government generally does not 

recognize as refugees.9

 Undocumented North Koreans who have crossed into China since the 

mid-1990s are generally treated as illegal economic migrants.10 For the more than 30,000 ethnic 

Kokangs displaced by armed conflicts in Burma who flooded into China in 2009, the Chinese 

government promptly opened camps to host them and provided other humanitarian assistance, 

although the authorities did not refer to them as refugees.11 

 

3 UNHCR Regional Representation in China, UNHCR, http://www.unhcr.org.hk/unhcr/en/about_us/China_ 

Office.html (last visited Dec. 30, 2015), archived at https://perma.cc/C573-RSBZ. According to the Chinese 

government, China accepted a total of 283,000 Indochinese refugees from 1978 onward “in the spirit of 

humanitarianism.” China’s Relationship with United Nations High Commissioner for Refugees (UNHCR), 

PERMANENT MISSION OF THE PEOPLE’S REPUBLIC OF CHINA TO THE UNITED NATIONS OFFICE AT GENEVA AND 

OTHER INTERNATIONAL ORGANIZATIONS IN SWITZERLAND (Apr. 16, 2004), http://www.fmprc.gov.cn/ce/cegv/ 

eng/rqrd/jblc/t85094.htm, archived at https://perma.cc/8TTS-9CFG. 

4 2015 UNHCR Subregional Operations Profile – East Asia and the Pacific, UNHCR, http://www.unhcr.org/ 

pages/49e487cd6.html# (last visited Dec. 30, 2015), archived at https://perma.cc/MB9S-8MKA. 

5

 Lili Song, Refugee Protection in China: Recent Legal and Policy Developments, RIGHTS IN EXILE (Sept. 1, 2014), 

http://rightsinexile.tumblr.com/post/96365498957/refugee-protection-in-china-recent-legal-and, archived at

https://perma.cc/9LEE-JJ98. 

6 Id.; 2015 UNHCR Subregional Operations Profile, supra note 4. 

7

 UNHCR MID-YEAR TRENDS 2015, supra note 2, at 16. 

8 The People’s Republic of China Fact Sheet, UNHCR (Aug. 2015), http://www.unhcr.org/5000187d9.pdf, archived 

at https://perma.cc/E366-DQPK. 

9

 Song, supra note 5. 

10 Id.

11 Id.; LIU GUOFU, ZHONGGUO NANMIN FA [CHINESE REFUGEE LAW] 214–216 (2015). 
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II. Legislation 

China acceded to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol in 

September 1982.12 Despite its early accession to these treaties, the domestic law on refugees and 

asylum is still under development. Currently, the only legal provisions relevant to refugees are 

one article in the Constitution providing the general principle on asylum, and one article in the 

Exit and Entry Law that gives legal status to refugees and asylum seekers. A comprehensive 

refugee law that would cover a wider range of refugee issues is under consideration. 

A. Constitution 

Article 32 of the Constitution declares that China “may grant asylum to foreigners who request it 

for political reasons.”13 

B. 2012 Exit and Entry Law 

In 2012, the PRC Law on the Administration of Exit and Entry (Exit and Entry Law) was 

promulgated, which replaced two former exit and entry laws governing Chinese citizens and 

foreigners, respectively. 14 Effective July 1, 2013, the new Exit and Entry Law contains a 

provision that, for the first time, allows refugees and asylum seekers to obtain ID cards in China. 

According to article 46 of the Exit and Entry Law, foreigners who apply for refugee status in 

China may, during the screening process, stay in China with temporary identity certificates 

issued by public security organs. Foreigners who are recognized as refugees may stay or reside 

in China with the refugee identity certificates issued by public security organs.15 

Article 46 is deemed a positive first step in providing a legal ground for refugees to live in 

China. Recognizing that refugees and asylum seekers are entitled to ID cards, the law “lays a 

foundation for future enhancement of refugees’ rights in China, such as the right to work and the 

right to education.”16 

C. Draft Refugee Law 

Efforts to forge a comprehensive refugee law were reportedly initiated in the 1990s, but so far no 

draft laws have been released. In 2012, the draft Regulations on Determination of Status and 

Administration of Refugees was prepared by Central Government authorities. If passed, the 

Regulations would address the definition of refugees, competent authorities in charge of refugee 

 

12 UNHCR Regional Representation in China, supra note 3. 

13 XIANFA [CONSTITUTION] art. 32, § 2 (1982), 2004 FAGUI HUIBIAN 4–28. 

14 Chujing Rujing Guanli Fa [Exit and Entry Administration Law] (Exit and Entry Law) (promulgated by the 

Standing Committee of the National People’s Congress (NPC), June 30, 2012, effective July 1, 2013), 2012 FAGUI 

HUIBIAN 283–301, English translation available at http://cs.mfa.gov.cn/wgrlh/lhqz/lhqzjjs/t1120988.shtml, archived 

at https://perma.cc/5XS7-BPTE. 

15 Exit and Entry Law art. 46. 

16 Song, supra note 5. 
Refugee Law and Policy: China 

The Law Library of Congress 59

affairs, refugee status determinations, temporary stays and repatriation of refugees, and loss and 

removal of refugee status.17 

III. Refugee and Asylum Issues 

Although there is only one article in the Exit and Entry Law specifically governing refugees, 

refugees and asylum seekers in China are subject to other provisions of that Law governing 

foreigners and stateless persons, as well as other relevant Chinese laws. 

A. Admission of Refugees and Handling Refugee Claims 

Other than article 46 of the Exit and Entry Law, there are no legal provisions specifically 

regulating the admission of refugees and handling refugee claims under Chinese law. Nor is 

there an explicit, competent authority in charge of refugee affairs. The Ministry of Public 

Security should be responsible for matters relevant to refugee status recognition and repatriation 

of refugees and the Ministry of Civil Affairs should attend to refugee resettlement, but no law 

explicitly authorizes them as the competent authorities.18

In practice, refugee registration and refugee status determinations for non-Indochinese refugees 

are generally conducted by the UNHCR Beijing Office.19 According to the Office, it generally 

has access to asylum seekers who are in Beijing and conducts refugee status determinations. 

Recognized refugees are permitted to remain temporarily in China while the UNHCR is seeking 

a durable solution, which most of the time involves resettlement in a third country.20 

B. Refugees Arriving at the Border 

Article 20 of the Exit and Entry Law allows any foreigners who “need to enter China urgently 

for humanitarian reasons” to apply for visas to enter China before the visa-issuing authorities at 

their port of entry. The Law, however, also requires that such foreigners possess supporting 

materials proving that relevant Chinese authorities have preapproved their application for a visa 

at a port of entry.21

According to a UNHCR officer, refugees in China normally enter the country with valid visas, 

mostly student visas and some tourist visas, due to strict border control.22

 

17 LIU, supra note 11, at 47; Song, supra note 5. 

18 ZhaoΥinan, Legal Status for Seekers of Asylum, CHINA DAILY (July 2, 2012), http://usa.chinadaily.com.cn/china/ 

2012-07/02/content_15540683.htm, archived at https://perma.cc/FH74-HUJM. 

19 LIU, supra note 11, at 225; UNHCR Regional Representation in China, supra note 3. 

20 UNHCR Regional Representation in China, supra note 3. 

21 Exit and Entry Law art. 20. 

22 Fang Shuchen, Waiguo Nanmin Huozai Zhongguo [Foreign Refugees Living in China], 19 VISTA KAN TIANXIA

(July 18, 2014), available at GUANCHA ZHE (July 27, 2014), http://m.guancha.cn/society/2014_07_27_ 

250606.shtml, archived at https://perma.cc/6XLV-Y6UL. 
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C. Recent Adjustments 

China does not appear to have made adjustments or amendments to its refugee law in response to 

the current refugee crisis. 

D. Refugee Status Determination 

The refugee status determination is generally conducted by the UNHCR Beijing Office and 

Chinese authorities have not substantially engaged themselves in the UNHCR process, according 

to the UNHCR Beijing Office. Refugees are recognized under the UNHCR’s mandate.23 

E. Accommodations and Assistance Provided to Refugees 

Non-Indochinese refugees in China are generally treated as aliens who have no right to 

employment. They are supported by the UNHCR in terms of food, accommodation, health care, 

and children’s education.24

In November 2013, the UNHCR reported that refugee children in five Chinese provinces were 

allowed to attend public schools at the primary level under the same conditions as 

local children.25 

F. Accepting Refugees for Resettlement 

In 1981 and 1982, China provided resettlement opportunities for some 2,500 Laotian and a small 

number of Cambodian refugees from camps in Thailand. While most of them voluntarily 

repatriated, some chose to stay in China.26 

G. Path to Naturalization 

In general, as provided by China’s Nationality Law, a foreign national or stateless person who is 

willing to abide by China’s Constitution and laws may be naturalized as a Chinese citizen upon 

approval of the application, as long as he or she (1) is a close relative of a Chinese national, (2) 

has settled in China, or (3) has other legitimate reasons.27 In practice, naturalization may be rare 

other than through marriage or a great contribution to the country.28

 

23 UNHCR Regional Representation in China, supra note 3. 

24 Id.

25 Chinese Schools Offer Primary Education for Urban Refugees, UNHCR (Nov. 22, 2013), http://www.unhcr. 

org/528f66086.html, archived at https://perma.cc/8SSB-AS67. 

26 UNHCR Regional Representation in China, supra note 3. 

27 Guoji Fa [Law on Nationality] (promulgated by the NPC, Sept. 10, 1980) art. 7, 1980 FAGUI HUIBIAN 3–5, 

English translation available on National People’s Congress website, at http://www.npc.gov.cn/englishnpc/ 

Law/2007-12/13/content_1384056.htm, archived at https://perma.cc/H4D4-AP5B. 

28 LANEY ZHANG, LAW LIBRARY OF CONGRESS, CITIZENSHIP PATHWAYS AND BORDER PROTECTION: CHINA (Mar. 

2013), http://www.loc.gov/law/help/citizenship-pathways/china.php, archived at https://perma.cc/5LQF-7JWU. 
Refugee Law and Policy: China 

The Law Library of Congress 61

A foreigner who has entered the country holding a temporary stay visa may be granted a 

residence permit, according to the Exit and Entry Law, if he or she has a special talent or is an 

investor as stipulated by the state, or based on humanitarian reasons.29 The Law also provides 

that a foreigner who has made “remarkable contributions to China’s economic and social 

development” or meets other conditions may be granted permanent residence in China.30

H. Stay and Residence 

The Exit and Entry Law requires all foreigners in China aged sixteen or above to carry their 

passports, other international travel documents, or foreigner stay or residence permits for 

examination by public security organs.31 

Furthermore, foreigners who reside in China must submit their residence permits to the local 

public security organs of any place they reside for examination.32 For those who temporarily 

stay in hotels, the hotels are required by law to register foreigners’ information and report their 

information to the local public security organs. For those who stay or reside in domiciles other 

than hotels, the foreigners themselves or persons who accommodate them must register the 

foreigners with the local public security organs within twenty-four hours of their arrival.33 

 

29 Exit and Entry Law art. 31. 

30 Id. art. 47. 

31 Id. art. 38 § 1. 

32 Id. art. 38 § 2. 

33 Id. art. 39. 
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Denmark 

Elin Hofverberg 

Foreign Law Research Consultant

SUMMARY Denmark is a signatory to the Refugee Convention and grants asylum for refugees and 

persons seeking subsidiary protection. Refugees are received both through the United 

Nations High Commissioner for Refugees relocation program (quota refugees) and 

through application from persons arriving at the border. Applicants are vetted by the 

Danish Immigration Service and by the police. The Danish government has made a 

number of changes to its asylum laws and policies following the asylum crisis of 2015. 

Changes include reducing the amount of monetary assistance to asylum seekers, delaying 

family reunification, and proposing confiscation of assets to pay for the housing and 

support of the asylum seeker. 

I. General Background 

Denmark is a country of 5.64 million people.1 It borders Germany and is connected with 

Sweden through the Oresund Bridge. Ferries from Denmark travel to Norway and Sweden. In 

2013 Denmark was seventh on the list of asylum seekers received per capita among the countries 

of the Organisation for Economic Co-operation and Development (OECD).2

 

During the first eleven months of 2015 Denmark received 18,000 applications for asylum.3

 Of 

these, 1,700 were unaccompanied minors.4

 Approximately 9,000 applications were approved 

during the same period.5 The greatest number of asylum seekers during the first eleven months 

of 2015 came from Syria, Iran, Eritrea, and Afghanistan.6

 Among unaccompanied minors, 

Afghans and Syrians were the two largest groups of nationalities. In addition, Denmark had 

received 14,000 applications for family reunification during the first eleven months of 2015,7

making the total number of asylum seekers more than 32,000. 

 

1 Denmark, WORLD BANK, http://data.worldbank.org/country/denmark (last visited Jan. 19, 2016), archived at 

https://perma.cc/HD6U-RUKF. 

2

 George Arnett, Sweden – The OECD’s Highest Per Capita Recipient of Asylum Seekers, THE GUARDIAN (Dec. 2, 

2014), http://www.theguardian.com/news/datablog/2014/dec/02/sweden-oecds-highest-per-capita-asylum-seekerssyria, archived at https://perma.cc/YT3H-BFU9. 

3 See statistics at Tal & statistik, NYIDANMARK, https://www.nyidanmark.dk/da-dk/Statistik/Search 

Statistics.htm?searchtype=statistics (last visited Jan. 15, 2016), archived at https://perma.cc/TAH4-PZS4. 

4

 UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET, TAL PÅ UDLÆNDINGEOMRÅDET PR. 30.11.2015, at 6 (Nov. 

30, 2015), https://www.nyidanmark.dk/NR/rdonlyres/E3C50EA0-BD36-4DDD-9C8D-7AAF44DE1F12/ 

0/seneste_tal_udlaendingeeomraadet.pdf, archived at https://perma.cc/T3Y4-MM9E. 

5 Tal & statistik, NYIDANMARK, supra note 3. 

6

 UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET, supra note 4, at 5. 

7 Id. at 10. 
Refugee Law and Policy: Denmark 

The Law Library of Congress 63

II. Recognition of Right of Asylum 

Danish laws and regulations govern asylum.8 Denmark does not have a list of safe countries 

applicants from which are automatically deemed not entitled to asylum; rather, each application 

is reviewed on its own merits. Denmark has an agreement with Afghanistan regarding the return 

of asylum seekers whose applications are denied.9

A. Refugee (Convention) Status 

Denmark was the first signatory to the 1951 Geneva Convention Relating to the Status of 

Refugees and its 1967 Protocol.10 Ratification was made through the Danish Aliens Act.11 

Asylum is given to those who qualify as refugees under the Convention,12 which defines as a 

refugee a person who, 

owing to 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 or, owing to such 

fear, is unwilling to return to it.13 

B. Protection Status

Asylum seekers who do not qualify as refugees may receive protection status (also known as 

subsidiary protection) “if returning to their home country would mean they face capital 

punishment, torture or inhumane or degrading treatment or punishment.”14

 

8

 UDLÆNDINGELOVEN (LOVBEKENDTGØRELSE [LBK] nr 1021 af 19/09/2014) [DANISH ALIENS ACT], 

https://www.retsinformation.dk/Forms/R0710.aspx?id=164258, archived at https://perma.cc/4334-LQ69, and 

Udlændingebekendtgørelsen(BEKENDTGØRELSE [BEK] nr 375 af 20/03/2015) [Aliens Regulation], 

https://www.retsinformation.dk/Forms/R0710.aspx?id=169278, archived at https://perma.cc/6WSS-WLLY. 

9

 Bekendtgørelse af trepartsaftale af 18. oktober 2004 med Afghanistan og UNHCR om hjemtagelse af afghanske 

statsborgere der ikke kan opnå asyl i Danmark (BKI nr 24 af 18/09/2012 (20-09-2012)), 

https://www.retsinformation.dk/Forms/R0710.aspx?id=142646, archived at https://perma.cc/797K-NPCH. 

10 States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, UNHCR, 

http://www.unhcr.org/3b73b0d63.html (last visited Feb. 9, 2016), archived at https://perma.cc/VK7F-QW2W. 

11 DANISH ALIENS ACT, https://www.retsinformation.dk/Forms/R0710.aspx?id=164258, archived at 

https://perma.cc/4334-LQ69. 

12 Id. 7 §. 

13 Convention and Protocol Relating to the Status of Refugees art. 1, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 

137 (Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2a 

a10.html, archived at https://perma.cc/X7Y7-V9SR. 

14 Id.; see also Asylum, NEWTODENMARK (Oct. 16, 2015), https://www.nyidanmark.dk/en-us/coming_to_dk/ 

asylum/asylum.htm, archived at https://perma.cc/B4D5-4CYJ. 
Refugee Law and Policy: Denmark 

The Law Library of Congress 64

C. Temporary Protection Status

Denmark also grants temporary protection status “to individuals who face capital punishment, 

torture or inhumane or degrading treatment or punishment due to severe instability and 

indiscriminate violence against civilians in their home country.”15

D. Humanitarian Protection 

In rare cases, such as when an asylum seeker is suffering severe illness, asylum seekers may 

receive humanitarian protection.16 This protection is temporary and only lasts as long as the 

humanitarian grounds for protection, e.g., the illness, persists.17

III. Application Process 

A. Quota Refugees 

Denmark receives refugees through the United Nations High Commissioner for Refugees 

(UNHCR) relocation program.18 The Danish Parliament annually decides how many refugees to 

accept through this program.19 The Danish government has approved the acceptance of 1,500 

quota refugees over a three-year period.20 In 2015 Denmark accepted 356 quota refugees.21 

Quota refugees receive renewable five-year residency permits.22 This is proposed to change in 

2016.23 Under the new proposal, residency will be given for three years instead of five.24 In 

addition, changes to the selection procedures are proposed, adding a requirement that the 

selection of quota refugees should be based on the refugee’s potential for integration.25

 

15 Id. 

16 9 § DANISH ALIENS ACT; see also Humanitær opholdstilladelse, NYIDANMARK (Sept. 23, 2015), 

https://www.nyidanmark.dk/da-dk/Ophold/humanitaert_ophold/humanitaer_opholdstilladelse.htm, archived at

https://perma.cc/NQP3-88U5. 

17 Id. 

18 8 § DANISH ALIENS ACT; see also Kvoteflygtninge, NYIDANMARK (Sept. 23, 2015), https://www.nyidanmark. 

dk/da-dk/Ophold/asyl/kvoteflygtninge/kvoteflygtninge.htm, archived at https://perma.cc/NF4B-2QDF. 

19 Kvoteflygtninge, NYIDANMARK, supra note 18. 

20 Id. 

21 For the period January 1, 2015, to Nov. 30, 2015, UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET, supra

note 4, at 4. 

22 Asyl, NYIDANMARK (Oct. 16, 2015), https://www.nyidanmark.dk/da-dk/Ophold/asyl/, archived at

https://perma.cc/9HR6-Y5JS. 

23 Asylpakke, STATSMINISTERIET, http://www.stm.dk/publikationer/Asylpakke_15/index.html (last visited Jan. 15, 

2016), archived at https://perma.cc/YH2E-KLDU. 

24 Ændringer Af Vilkår På Asylområdet, REGERINGEN (Nov. 13, 2015), http://www.stm.dk/publikationer/ 

Asylpakke_15/Ændringer%20af%20vilkår%20på%20asylområdet.pdf, archived at https://perma.cc/YN46-N726. 

25 L 87 – Forslag til lov om ændring af udlændingeloven, FOLKETINGET (last visited Jan. 19, 2016), 

http://www.ft.dk/samling/20151/lovforslag/L87/index.htm, archived at https://perma.cc/KZ52-X98H, available in 

full text at Lovforslag 87 Forslag til lov om ændring af udlændingeloven, FOLKETINGET (Dec. 10, 2015), 
Refugee Law and Policy: Denmark 

The Law Library of Congress 65

Quota refugees are screened by the UNHCR as well as the Danish Immigration Service.26 After 

the UNHCR makes an initial screening and a suggestion of which refugees should be relocated 

to Denmark, the Danish Immigration Service conducts interviews with the refugees before they 

are relocated to Denmark.27 Municipalities and the Dansk Flygtningehjælp (Danish Refugee 

Council) are also allowed to participate in these interviews.28

B. At the Border 

In addition to receiving quota refugees Denmark also accepts asylum applications by individuals 

who arrive at the Danish border.29 Application is then made at either a local police station or at 

the reception center in Sandholm.30 In 2015 approximately 18,000 persons sought asylum in 

Denmark in this manner.31 Denmark does not allow for asylum applications at Danish embassies 

or consulates. 

Asylum seekers arriving at the border must report to the police.32 As part of their application 

they provide fingerprints.33 These fingerprints are entered into the Eurodac system.34 

 

C. Unaccompanied Minors 

Denmark received approximately 1,700 unaccompanied minors in 2015.35 Unaccompanied 

minors have the right to special representation (through a guardian) and receive temporary 

residence permits ranging from one to five years that are renewable.36 

 http://www.ft.dk/samling/20151/lovforslag/l87/bilag/1/1578594.pdf, archived at https://perma.cc/SB83-HUXK; see

also Betænkning afgivet af Udlændinge-, Integrations- og Boligudvalget den 19. januar 2016, UDLÆNDINGE-,

INTEGRATIONS- OG BOLIGUDVALGET (Jan. 19, 2016), http://www.ft.dk/RIpdf/samling/20151/lovforslag/L87/20151_ 

L87_betaenkning.pdf, archived at https://perma.cc/3F9F-2DKC. 

26 Kvoteflygtninge, NYIDANMARK, supra note 18. 

27 Id. 

28 Id. 

29 Ansøgning om asyl, NYIDANMARK (Aug. 7, 2015), https://www.nyidanmark.dk/da-dk/Ophold/asyl/asylprocessen/ 

ansoegning_om_asyl.htm, archived at https://perma.cc/C535-B9UV. 

30 Id. 

31 UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET, supra note 4. 

32 Ansøgning om asyl, NYIDANMARK, supra note 29. 

33 Id. 

34 Rettigheder i Eurodac, DATATILSYNET (updated May 6, 2015), http://www.datatilsynet.dk/borger/eurodac/, 

archived at https://perma.cc/Q9A7-ZQ49. 

35 This is the number received during the first eleven months. UDLÆNDINGE-, INTEGRATIONS- OG 

BOLIGMINISTERIET, supra note 4. 

36 See Uledsagede mindreårige asylansøgere, NYIDANMARK (Nov. 16, 2015), https://www.nyidanmark.dk/dadk/Ophold/asyl/uledsagede_boern.htm, archived at https://perma.cc/6T8E-E3M4. 
Refugee Law and Policy: Denmark 

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D. Family Reunification 

Denmark allows for family reunification.37 During 2015 more than 14,000 persons sought 

family reunification in Denmark.38 The Danish government has proposed changes to the Danish 

family reunification regulations, which would mean that individuals granted temporary 

protection status (see above, Part II(C)) would have to wait three years until family reunification 

could be sought.39

IV. Benefits 

A. Housing 

Asylum seekers are housed in asylum centers or tents.40 After six months of applying for 

asylum, asylum seekers are allowed to find their own housing until their application has been 

processed.41 They may not buy real property, however.42 Moreover, unlike asylum-center 

housing, which is financed by the state, an asylum seeker must finance his own housing and does 

not receive extra monetary benefits to cover his or her expenses in such housing.43 If an asylum 

seeker finances his own housing he or she must contract with the Danish Immigration Service 

and promise to leave the country if he or she is denied asylum.44

B. Monetary Benefits

Asylum seekers receive cash benefits while their applications are pending if they cannot support 

themselves.45 The cash benefit in 2015 was DKK 54.04 (about US$7.89) per day for a single 

person living rent-free at an asylum center where meals were not included.46 Spouses who share 

 

37 9 § DANISH ALIENS ACT. 

38 UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET, supra note 4, at 10. 

39 Forslag til lov om ændring af udlændingeloven, FOLKETINGET, supra note 25; see also Theis Lange Olsen, 

Asylpakke: Regeringen vil begrænse familiesammenføringer yderligere, DR (Nov. 13, 2015), http://www.dr.dk/ 

nyheder/politik/asylpakke-regeringen-vil-begraense-familiesammenfoeringer-yderligere, archived at

https://perma.cc/GXF2-47QW. 

40 Indkvartering af asylansøgere, BEREDSKABSSTYRELSEN (Jan. 14, 2016), http://brs.dk/beredskab/idk/Pages/8deckort-over-indkvartering-over-asylansoegere.aspx, archived at https://perma.cc/7ECH-5JND. 

41 42k, 42l §§ DANISH ALIENS ACT; see also Egenfinansieret bolig, NYIDANMARK (Jan. 4, 2016), 

https://www.nyidanmark.dk/da-dk/Ophold/asyl/hvor_kan_asylansoegerne_bo/egenfinansieret_bolig.htm, archived 

at https://perma.cc/QL84-B2SX. 

42 Egenfinansieret bolig, NYIDANMARK, supra note 41. 

43 Id. 

44 Id. 

45 42a § DANISH ALIENS ACT; see also Bekendtgørelse om udlevering af naturalieydelser til asylansøgere m.fl. 

(BEK nr 1358 af 15/12/2005), https://www.retsinformation.dk/Forms/R0710.aspx?id=29015, archived at

https://perma.cc/4M3G-CX72. 

46 Cash Allowance, NEWTODENMARK (Oct. 19, 2015), https://www.nyidanmark.dk/en-us/coming_to_dk/ 

asylum/conditions_for_asylum_applicants/cash_allowances.htm, archived at https://perma.cc/M8FP-JEWH; see
Refugee Law and Policy: Denmark 

The Law Library of Congress 67

accommodations receive DKK 42.79 (about US$6.24) each if they live in an asylum center 

where meals are not included.47 In addition asylum seekers receive between DKK 9.02 (about 

US$1.32) and DKK 31.54 (about US$4.60) per day depending on what stage of the process the 

application is in.48 

Caregivers of children also receive an additional DKK 63.06 (about US$9.20) or DKK 85.57 

(about US$12.49) per child per day depending on whether the Danish authorities have found that 

Denmark is the country where asylum should be sought or not.49 Caregivers of children receive 

a smaller allowance for their third and fourth child of DKK 45.05 (about US$6.57) per child 

per day.50

Asylum seekers may in addition receive other benefits/assistance from the government such as 

hygiene products or baby-care products.51

C. Health Care

Asylum seekers have the right to urgent health care.52 Asylum seekers under the age of eighteen 

have the same right to health care as Danish children.53 

D. Schooling

Asylum seekers aged seven to sixteen have the right to attend school free of charge either at the 

asylum center, remotely, or at local schools.54

 also Kontante ydelser, NYIDANMARK (Jan. 7, 2015), https://www.nyidanmark.dk/da-dk/Ophold/asyl/ 

asylansoegernes_vilkaar/kontante_ydelser.htm, archived at https://perma.cc/TGQ7-XXRW. 

47 Id. 

48 Id. 

49 Id. 

50 Id. 

51 Bekendtgørelse om udlevering af naturalieydelser til asylansøgere m.fl (Bekendtgørelse [BEK] nr 1358 af 

15/12/2005), https://www.retsinformation.dk/Forms/R0710.aspx?id=29015, archived at https://perma.cc/Z66L9479. 

52 80 § SUNDHEDSLOVEN [HEALTH CARE ACT] LBK nr 1202 af 14/11/2014, https://www.retsinformation.dk/ 

Forms/R0710.aspx?id=152710#Afs2, archived at https://perma.cc/42GY-E7XJ. 

53 Sundhedsbehandling, NYIDANMARK (May 2, 2013), https://www.nyidanmark.dk/da-dk/Ophold/asyl/ 

asylansoegernes_vilkaar/sundhedsbehandling.htm, archived at https://perma.cc/RDC4-YSMM. 

54 Undervisning og aktivering, NYIDANMARK (May 2, 2013), https://www.nyidanmark.dk/da-dk/Ophold/ 

asyl/asylansoegernes_vilkaar/undervisning_og_aktivering.htm, archived at https://perma.cc/VR4S-Q2ZG. 
Refugee Law and Policy: Denmark 

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V. Path to Citizenship 

Danish Citizenship is acquired through law,55 meaning a law is adopted by Parliament listing the 

names of the individuals who will receive Danish Citizenship through naturalization.56 To 

become a citizen through naturalization a person must be a permanent resident of Denmark.57 

Special rules allow refugees to receive citizenship after eight years of continuous residence,58

compared to nine years for other foreigners.59 

 

In addition to meeting the permanent residence requirement a person seeking to become a citizen 

of Denmark must pass a language test as well as history and civics tests.60 The person must also 

swear allegiance to Denmark, not have a criminal record, and meet selfsufficiency requirements.61 

VI. Monitoring by Security Police 

The role of the Danish Security and Intelligence Service (Politiets Efterretningstjenestes, PET), 

is regulated in law.62 The Danish Immigration Service can forward information about a 

foreigner without the foreigner’s prior consent to the PET for analysis.63 The Justice Minister 

can deport a person with reference to national security.64 A person who cannot be deported from 

Denmark receives a tålt ophold, which means that he or she will have to reside in a special place 

and report to the police.65 

 

55 § 44 DANMARKS RIGES GRUNDLOV (GRUNDLOVEN) (LOV nr 169 af 05/06/1953) [CONSTITUTION], 

https://www.retsinformation.dk/Forms/R0710.aspx?id=45902, archived at https://perma.cc/TD9S-WY5D. 

56 Udenlandske statsborgere, UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET (Dec. 14, 2015), 

http://uibm.dk/statsborgerskab/udenlandske-statsborgere-1, archived at https://perma.cc/4YBB-NB8A.

57 5 § Cirkulæreskrivelse om naturalization (Cirkulæreskrivelse [CIS] nr 10873 af 13/10/2015) [Circulation Letter 

on Naturalization], https://www.retsinformation.dk/Forms/R0710.aspx?id=174789, archived at

https://perma.cc/4NTD-NGMV; Bekendtgørelse af lov om dansk indfødsret LBK nr 422 af 07/06/2004 Gældende 

(Indfødsretsloven), https://www.retsinformation.dk/Forms/R0710.aspx?id=28974, archived at

https://perma.cc/TZ5J-LBXG. 

58 7 § Circulation Letter on Naturalization, supra note 57. 

59 Id. 

60 See id. § 1. 

61 Id. 

62 PET-LOVEN (LBK nr 1600 af 19/12/2014) [ACT ON THE DANISH SECURITY AND INTELLIGENCE SERVICE], 

https://www.retsinformation.dk/forms/r0710.aspx?id=165838, archived at https://perma.cc/DB2A-N8UR. 

63 Udlændinge-sager, PET, https://www.pet.dk/Juridiske%20forhold/Udlaendingesager.aspx (last visited Jan. 15, 

2016), archived at https://perma.cc/T63J-DFA8. 

64 Id.; see also 45b § DANISH ALIENS ACT. 

65 Udlændinge-sager, PET, supra note 63; see also Det danske samfunds indsats og beredskab mod terror, 

STATSMINISTERIET, http://www.stm.dk/publikationer/terror/Kap4.htm (last visited Jan. 19, 2016), archived at 

https://perma.cc/LR92-KN46. 
Refugee Law and Policy: Denmark 

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VII. Travel Restrictions 

Person who have been granted asylum in Denmark cannot travel to the country from which they 

sought asylum.66 This ban is in place for at least ten years. Persons who have not received 

permanent residence in Denmark will always lose their residency permit if they travel to their 

home country, even if they received a temporary permit more than ten years ago.67 Once a 

person receives permanent residency the time spent in Denmark in temporary status counts 

toward the ten-year requirement.68 

In December 2015 the government proposed changes to the travel restrictions requirements 

which would provide that even for permanent residence holders a visit to the country from which 

they sought refuge would create a presumption that they no longer needed asylum in Denmark 

and thus allow their residence permits to be revoked.69

VIII. The Role of Municipalities 

The independence of municipalities is regulated in law and listed in the Constitution.70 The 

relocation of persons who have received asylum from the asylum centers to the municipalities is 

determined by the Danish Immigration Service in conjunction with the municipalities.71 The 

number of asylum recipients sent to each municipality is meant to reflect the population of the 

municipality.72 Municipalities are responsible for the costs of health care for their inhabitants.73

IX. Response to Refugee Crisis 

A. Legislative Changes and Proposals 

The Danish government and coalition parties have presented a thirty-four item list of proposed 

measures intended to stem the influx of asylum seekers to Denmark by making Denmark a less 

 

66 Pas til udlændinge, NYIDANMARK (Nov. 30, 2015), https://www.nyidanmark.dk/da-dk/Ophold/asyl/ 

ansoegning_om_pas.htm, archived at https://perma.cc/P5NX-LSJM. 

67 Id. 

68 Id. 

69 Lovforslag 87 Forslag til lov om ændring af udlændingeloven, FOLKETINGET, supra note 25, at 23–26. 

70 82 § DANISH CONSTITUTION, https://www.retsinformation.dk/Forms/R0710.aspx?id=45902, archived at

https://perma.cc/TD9S-WY5D. 

71 Visitering af flygtninge til kommunerne, NYIDANMARK (Nov. 6, 2015), https://www.nyidanmark.dk/dadk/for_samarbejdspartnere/visitering_flygtninge_kommunerne/Visitering+af+flygtninge+til+kommunerne.htm, 

archived at https://perma.cc/U8HL-BMY6; Bekendtgørelse om boligplacering af flygtninge (BEK nr 50 af 

18/01/2008) [Regulation on the Housing Placement of Refugees], https://www.retsinformation.dk/ 

forms/R0710.aspx?id=114417, archived at https://perma.cc/HH25-R357. 

72 Bekendtgørelse om boligplacering af flygtninge (BEK nr 50 af 18/01/2008). 

73 118 § HEALTH CARE ACT.
Refugee Law and Policy: Denmark 

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attractive destination for asylum seekers.74 Measures include shorter residency permits and more 

restrictive family reunification policies.75 Of these thirty-four measures, eleven have been 

implemented by Parliament.76

One controversial measure is the seizing of valuables from asylum seekers.77 The Ministry of 

Immigration, Integration and Housing has explained the measure by noting that the Danish 

welfare state is intended to help people who do not have the financial capacity to help 

themselves, not those who can, and that this principle includes asylum seekers.78 The measure 

now means that the police can seize valuables worth DKK 10,000 (about US$1,459) or more. 

Certain items such as wedding and engagement rings are excluded. In the initial proposal the 

value threshold was DKK 3,000 (about US$438).79 The new rules also apply to asylum seekers 

already in the country.80 

Most of the new rules entered into force on February 4, 2016.81 

B. Border Controls

On January 4, 2016 (when Sweden started requiring ID checks on all public transportation going 

into Sweden), Denmark initiated a temporary border control along its German border.82 The 

border control was coupled with an amendment to the Aliens Act that prescribes ID controls of 

passengers traveling by bus, train, and boat, and requires that the operators conduct these ID 

checks before allowing passengers to travel into Denmark.83 Unlike the Swedish border control 

 

74 Ny asylpakke, UDLÆNDINGE-, INTEGRATIONS- OG BOLIGMINISTERIET (Nov. 13, 2015), http://uibm.dk/nyheder/ 

2015-11/ny-asylpakke, archived at https://perma.cc/54QH-4QB8. 

75 Id. 

76 LOV OM ÆNDRING AF UDLÆNDINGELOVEN (LOVTIDENDE [LOV] nr 102 af 03/02/2016) [ACT ON CHANGES TO THE 

ALIENS ACT], https://www.retsinformation.dk/Forms/R0710.aspx?id=177348, archived at https://perma.cc/XF5TW32B; Elin Hofverberg, Denmark: Law to Stem Asylum-Based Immigration, GLOBAL LEGAL MONITOR (Feb. 1, 

2016), http://www.loc.gov/law/foreign-news/article/denmark-law-to-stem-asylum-based-immigration/, archived at

https://perma.cc/PHC2-VX4N; see also L 87 – Forslag til lov om ændring af udlændingeloven, FOLKETINGET, supra

note 25. 

77 Press Release, Udlændinge-, Integrations- og Boligministeriet, New Bill Presented Before the Danish Parliament 

(Jan. 13, 2016), http://uibm.dk/nyheder/2016-01/new-bill-presented-before-the-danish-parliament, archived at 

https://perma.cc/2FRA-6V3N. 

78 Id. 

79 Id. 

80 Id. 

81 Id. 

82 Press Rlease, Udlændinge-, Integrations- og Boligministeriet, Regeringen indfører midlertidig grænsekontrol (Jan. 

4, 2016), http://uibm.dk/nyheder/2016-01/regeringen-indforer-midlertidig-graensekontrol, archived at

https://perma.cc/MKC7-RWC2; see also Det betyder grænsekontrollen for rejsende, POLITI (Jan. 4, 2016), 

https://www.politi.dk/da/aktuelt/nyheder/Det+betyder+grænsekontrollen+for+rejsende.htm, archived at

https://perma.cc/2CJ9-9RHH. 

83 L 74 Forslag til lov om ændring af udlændingeloven, FOLKETINGET, http://www.ft.dk/samling/20151/ 

lovforslag/L74/index.htm, archived at https://perma.cc/SAE6-5NKK; text of amendment available at LOV OM 
Refugee Law and Policy: Denmark 

The Law Library of Congress 71

this Danish law prescribes fines for transporters who do not also check whether the person 

traveling into Denmark has valid travel documentation (i.e., a visa) that allows travel to 

Denmark.84 As of January 14, the border control was not a complete border control but a control 

with random samplings.85 The border controls are expected to stay in force until the Swedish 

ID-controls are abandoned, i.e., for at least six months.86 According to news reports, the number 

of asylum seekers has sharply decreased following the implementation of border controls; on 

January 13 only eleven persons sought asylum in Denmark, down sharply from previous 

numbers.87 An expected 25,000 persons are expected to apply for asylum in Denmark in 2016.88 

The Danish Police has estimated that, at a minimum, 92,000 foreign asylum seekers crossed the 

country’s borders between January 2015 and January 2016.89 Many are thought to have 

continued on to Sweden and Norway.90

 ÆNDRING AF UDLÆNDINGELOVEN (LOV nr 1499 af 11/12/2015) [ACT ON AMENDMENTS TO THE DANISH ALIENS 

ACT], https://www.retsinformation.dk/Forms/R0710.aspx?id=176355, archived at https://perma.cc/H7AD-25XU. 

84 L 74 Forslag til lov om ændring af udlændingeloven, supra note 88. 

85 Resultat af den midlertidige stikprøvevise grænsekontrol ved den dansk-tyske grænse, POLITI (Jan. 17, 2016), 

https://www.politi.dk/da/aktuelt/nyheder/resultat_af_den_midlertidige_stikproevevise_graensekontrol_ved_den_dan

sk_tyske_graense.htm, archived at https://perma.cc/MY5L-39AK. 

86 See Frågor och svar: Lag och förordning om identitetskontroller vid allvarlig fara för den allmänna ordningen 

eller den inre säkerheten i landet, REGERINGSKANSLIET (Dec. 18, 2015; updated Feb. 4, 2016), 

http://www.regeringen.se/artiklar/2015/12/fragor-och-svar-lag-och-forordning-om-identitetskontroller-vid-allvarligfara-for-den-allmanna-ordningen-eller-den-inre-sakerheten-i-landet/. 

87 11 personer soegte asyl onsdag, DR (Jan. 14, 2016), http://www.dr.dk/nyheder/politik/11-personer-soegte-asylonsdag, archived at https://perma.cc/F7ZU-EDS6. 

88 Id. 

89 Skønsmæssig vurdering af indrejste udlændinge, POLITI (Jan. 11, 2016), https://www.politi.dk/da/aktuelt/nyheder/ 

skoensmaessig_vurdering_af_indrejste_udlaendinge.htm, archived at https://perma.cc/MHW6-TTX8. 

90 Id. 
The Law Library of Congress 72 

Egypt 

George Sadek 

Senior Legal Research Analyst

SUMMARY Egypt acceded to the UN Convention Relating to the Status of Refugees in May 1981. 

According to a report by the United Nations High Commissioner for Refugees (UNHCR), 

However, the Egyptian government has no comprehensive legal instrument to deal with 

refugees—various fragmentary domestic legislative initiatives regulate their legal status. 

 Egypt hosts approximately 228,200 refugees. Individuals who want to obtain refugee 

status must be interviewed by a UNHCR representative. Refugees who pass the Refugee 

Status Determination Interview are provided with a UNHCR refugee yellow card. Social 

benefits are provided to the refugees by the UNHCR office in Egypt. 

 Refugees may be subject to security restrictions imposed by the Egyptian authorities and 

may also face arrest and detention. Many refugees have reported a lack of police 

protection and even police harassment. There is a high unemployment rate among 

refugees. Refugees who decide to leave Egypt irregularly also risk being targeted and 

attacked by human traffickers. 

I. General Background 

Egypt acceded to the 1951 UN Convention Relating to the Status of Refugees (Refugee 

Convention) and to its 1967 Protocol in May 1981, but made reservations to five provisions, 

namely article 12(1) (personal status), article 20 (rationing), article 22(1) (access to primary 

education), article 23 (public relief and assistance), and article 24 (labor legislation and 

social security).1 

According to a report issued by the United Nations High Commissioner for Refugees (UNHCR), 

Egypt hosts Syrian, Sudanese, Ethiopian, Somali, Eritrean, Palestinian, and Iraqi refugees. 

UNHCR planning figures for December 2015 place the number of refugees in Egypt at around 

228,200 (asylum seekers make up an additional 22,370).2

 There are approximately 300,000 

 

1

 Convention Relating to the Status of Refugees, Declarations and Reservations, July 28, 1951, 19 U.S.T. 6259, 189 

U.N.T.S. 137, https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp= 

mtdsg2&lang =en (scroll down to Egypt), archived at https://perma.cc/EM5B-A4DF. 

2 2015 UNHCR Country Operations Profile: Egypt, UNHCR, http://www.unhcr.org/pages/49e486356.html (last 

visited Dec 31, 2015), archived at http://perma.cc/9MVN-5D88. 
Refugee Law and Policy: Egypt 

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Syrian refugees in Egypt, including 134,000 who are registered with the UNHCR.3 Egypt 

continues to be a transit country for many refugees hoping to reach Europe.4

 

II. Steps Taken to Determine Whether a Person is Entitled to Refugee Status 

Individuals who want to obtain refugee status must have a Refugee Status Determination 

Interview with a representative of the UNHCR. The principal applicant and all of his or her 

family members must go through separate interviews at the UNHCR local office, presenting their 

UNHCR asylum-seeker registration cards, original identification documents (such as a passport 

or an ID card), and other documents that might be relevant to their refugee claim. Applicants are 

entitled to have a legal representative to assist them during their interview. At the end of the 

interview, applicants are issued an appointment slip by the interviewer indicating the date when 

they can start checking for their interview result, which is usually approximately eight weeks 

from the date of the interview.5

 

According to UNHCR Egypt, individuals who are granted refugee status are those who are able 

to prove that they have a well-founded fear of persecution for reasons of race, religion, 

nationality, political opinion, or membership in a particular social group. They must also show 

that they have left the country of their nationality because of such fear and are unable or 

unwilling to avail themselves of the protection of that country.6

If the applicant is denied refugee status after the first interview, the local office of the UNHCR 

provides him or her with a negative decision letter that contains the reasons for denying the 

application. The denied applicant has the right to lodge an appeal to have the negative 

decision reconsidered.7 

III. Rules Applicable to Admitted Refugees 

Refugees who pass the Refugee Status Determination Interview are provided with a UNHCR 

yellow refugee card, which is stamped by the Ministry of Foreign Affairs and the Refugee 

Affairs section of the Ministry of Interior’s Department of Migration and Citizenship. According 

to the Ministry of Interior’s Decree No. 8180 of 1996, refugees generally receive a three-year 

temporary residency permit. This Decree is not being implemented, however, because of a 

 

3

 Jihad Abaza, Employment, Detention, and Registration: On Syrian Refugees in Egypt, DAILY NEWS: EGYPT (Apr. 

7, 2015), http://www.dailynewsegypt.com/2015/04/07/employment-detention-and-registration-on-syrian-refugeesin-egypt, archived at https://perma.cc/3KZJ-ZX5W. 

4

 Ola Noureldin, Syrian Refugees in Egypt Despair at Dire Conditions and See Europe as Their Only Hope, 

INTERNATIONAL BUSINESS TIMES (Sept. 15, 2015), http://www.ibtimes.co.uk/syrian-refugees-egypt-despair-fellowarabs-make-europe-their-only-hope-1520699, archived at http://perma.cc/X5TE-XKAX. 

5 UNHCR Egypt – Refugees Status Determination Information, UNHCR, http://rsd.unhcregypt.org/RefugeeInfo.aspx

(last visited Dec. 31, 2015), archived at http://perma.cc/CE7U-LZLD. 

6 Id.

7 Id.
Refugee Law and Policy: Egypt 

The Law Library of Congress 74 

ministerial decision allowing them only six-month renewable residency permits. Such permits 

are renewable as long as the refugee “remains of concern to UNHCR.”8

IV. Assistance Offered to Refugees 

Most refugees in Egypt, including those from Syria, are scattered in urban neighborhoods, where 

they rent and share accommodations. The Egyptian government provides no social benefits to 

refugees, other than permitting them access to education in public schools and health care in 

public hospitals. Any social benefits they receive are provided by Egypt’s UNHCR office. 

Although Egypt made a reservation to article 22, section 1 of the Refugee Convention, thereby 

denying refugees the right to be admitted to public schools, the Egyptian Minister of Education 

issued Ministerial Decree No. 24 in 1992, allowing the children of recognized refugees, which 

includes Syrians, to attend public schools.9

 However, the UN Children’s Fund, UNICEF, has 

stated that only 53% percent of Syrian children that are eligible to enroll in schools attend, due to 

the lack of sufficient kindergartens and the inability of other schools to absorb more students.10 

The Egyptian Red Crescent, in cooperation with the UNHCR, provides Syrian families with cash 

assistance grants.11 According to the UNHCR, in 2015, 15,500 refugees received such grants, 

including twelve thousand Syrian refugees.12 These families were scored as severely vulnerable 

through the UNHCR’s ongoing socioeconomic/vulnerability assessment framework. Refugee 

families that are not currently receiving food or cash assistance and are large-sized, singleheaded households or households with members suffering from a medical condition are the main 

recipients of those cash assistance grants.13

V. Security Restrictions and Hardships 

Egyptian authorities have imposed some security restrictions on refugees. For instance, in July 

2013, the Egyptian government required Syrians to acquire entry visas, residency documents, 

and work permits before entering the country.14 The Ministry of Foreign Affairs announced that 

this decision was related to “current and temporary” security conditions.15 African refugees are 

 

8

 LIALA HILAL & SHAHIRA SAMI, IMMIGRATION AND ASYLUM IN THE MASHRIK 72 (Euro-Mediterranean Human 

Rights Network Dec. 2008), https://ec.europa.eu/migrant-integration/index.cfm?action=media.download&uuid= 

2A9339E1-E12B-E824-A57C5AEF9CF4F31D, archived at https://perma.cc/VWL5-AEYJ. 

9

 Ministerial Resolution No. 24-1992, AL-JARĪDAH AL-RASMĪYAH, vol. 54, 22 Jan. 1992. 

10 Souzan Mansour, Egypt’s Syrian Refugees Challenged at Every Step, THE NEW ARAB/AL-ARABY AL-JADEED

(Mar. 31, 2015), http://www.alaraby.co.uk/english/features/2015/4/1/egypts-syrian-refugees-challenged-at-everystep#sthash.dMQ2m0a2.dpuf, archived at http://perma.cc/P4NF-HUY9. 

11 UNHCR, EGYPT: INTER-AGENCY OPERATIONAL UPDATE – SYRIAN REFUGEES IN EGYPT 3 (Apr. 2015), 

https://data.unhcr.org/syrianrefugees/download.php?id=8983, archived at http://perma.cc/3TJ6-GYN5. 

12 UNHCR GLOBAL APPEAL 2015 UPDATE: EGYPT 4 (Nov. 2014), http://www.unhcr.org/5461e605b.html, archived 

at http://perma.cc/5R6S-X6PN. 

13 UNHCR, supra note 11, at 3. 

14 Mansour, supra note 10. 

15 Hend Kortam, New Requirements for Entry of Syrians, DAILY NEWS: EGYPT, (July 10, 2013), http://www.daily 

newsegypt.com/2013/07/10/new-requirements-for-entry-of-syrians, archived at https://perma.cc/BLG5-VGG2. 
Refugee Law and Policy: Egypt 

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also reportedly sometimes subject to police harassment and security restrictions. In November 

2015, the Center for Refugee Solidarity issued a statement condemning the targeting and violent 

mistreatment of Sudanese refugees by the Egyptian security agencies. In its statement, the 

Center urged the Egyptian authorities to refrain from random checks and arrests of African 

refugees and to give Sudanese nationals freedom of movement and residence, and the right to 

work and own property.16 

Refugees also face arrest and detention by security agencies. The UNHCR reported that 3,058 

had been arrested by the authorities for attempting to depart irregularly by sea between January 

and September 2015. Moreover, seventy-five female refugees from Ethiopia, Eritrea, Rwanda, 

Somalia, Sudan, and Syria are being held in detention at Al-Qanatir women’s prison for 

allegedly possessing forged passports, being undocumented, and attempting to enter or depart 

irregularly from Egypt.17 Additionally, African refugees who try to be smuggled into Israel face 

threats to their lives at the Egyptian-Israeli border. For example, in November 2015, at least 

fifteen Sudanese refugees were shot dead by the Egyptian security forces and eight more were 

injured in Egypt’s Sinai region as they reportedly attempted to enter Israel.18

Many refugees reported a lack of police protection. According to a report issued by Refugee 

Council USA, Syrian and African refugees face regular sexual harassment and exploitation and 

receive no police protection, as demonstrated by the number of female refugees who are robbed, 

beaten, and harassed in the streets. The report also claims that when refugees attempt to report 

crimes to the police, they are treated with contempt and given no assistance.19 

In addition to the security restrictions and poor police protection, some Syrian refugees suffer 

other hardships during their stay in Egypt. Many can find no other place to live except small 

apartments in the poor neighborhoods of Cairo, which are full of drug addicts. Landlords also 

reportedly charge them extortionate rents, and their children are bullied at local schools because 

of their Syrian accent.20 Whereas Syrians refugees had initially been allowed into the country 

without visas, hundreds of them have been detained and deported since July 2013 for allegedly 

not having the proper residency paperwork to remain in Egypt.21 

There is a high unemployment rate among refugees. Despite Egypt not making a reservation 

against articles 17 and 18 of the Refugee Convention, which protect refugees’ rights to 

 

16 Egypt: Stop Violations of Sudanese Nationals, CENTER FOR REFUGEE SOLIDARITY (Nov. 11, 2015), http://www. 

refugeesolidarity.org/news/egypt-stop-violations-of-sudanese-nationals, archived at http://perma.cc/X4TT-J4NW. 

17 UNHCR OPERATIONAL UPDATE: EGYPT 2 (Sept. 2015), http://www.unhcr.org/5548c50f9.html, archived at

http://perma.cc/369W-FW4F. 

18 Patrick Strickland, Sudanese Refugees Shot Dead on Egypt-Israel Border, AL-JAZEERA (Nov. 15, 2015), 

http://www.aljazeera.com/news/2015/11/sudanese-refugees-shot-dead-egypt-israel-border-151115141929932.html, 

archived at http://perma.cc/7NLU-7V7Y. 

19 REFUGEE COUNCIL USA, AT THE BREAKING POINT: REFUGEES IN JORDAN AND EGYPT 21 (2015), http://www. 

rcusa.org/uploads/pdfs/At%20the%20Breaking%20Point%20-%20RCUSA%20Report%20on%20Refugees%20in 

%20Jordan%20and%20Egypt.pdf, archived at http://perma.cc/G8UC-PW6D. 

20 Noureldin, supra note 4. 

21 Abaza, supra note 3. 
Refugee Law and Policy: Egypt 

The Law Library of Congress 76 

employment, refugees find it difficult to obtain Egyptian work permits. Article 11 of the 

Ministry of Labor’s Ministerial Resolution No. 390 of 1982 requires employers to prove that no 

Egyptian national is available to do a job before a work permit is issued to a refugee,22 a legal 

stipulation that has created a high refugee unemployment rate. A number of refugees report 

spending many months looking for low-paying jobs that no Egyptian is willing to take. The high 

unemployment rate of Sudanese refugees from Darfur, who were transferred from the refugee 

camp of Al-Salloum to Cairo, is among the array of difficulties that lead them to attempt to reach 

Europe by sea with the help of smugglers.23 

Refugees who decide to leave Egypt irregularly also risk being targeted and attacked by human 

traffickers. For example, Reem S., a twenty-nine-year-old Syrian refugee, stated that in August 

2014, human traffickers kidnapped a refugee group in Alexandria and tortured them. According 

to Reem, they raped the women in the group, stole the refugees’ money, and did not provide 

them with places on their boats as promised. The refugees did not report the traffickers to 

security authorities out of fear.24 Likewise, human traffickers operating in the Sinai Peninsula 

have tortured and killed African refugees, mostly from Eritrea, who want to cross the 

Egyptian/Israeli border illegally.25 

VI. Legal Provisions Governing Refugees 

There is no comprehensive legal instrument to deal with refugees or asylum seekers in Egypt. 

The Egyptian authorities have adopted a number of fragmentary domestic legislative initiatives 

to regulate the legal status of refugees and asylum seekers: 

 The Egyptian Constitution of 2014 provides protection to refugees and asylum seekers; for 

instance, article 91 prohibits the extradition of political refugees.26 

 Law No. 154 of 2004, amending Law No. 26 of 1975 on nationality, prohibits the children of 

foreigners who are born on Egyptian soil from acquiring citizenship, as Egyptian nationality 

is granted only on the basis of descent.27

 Law No. 104 of 1985 prevents foreign persons and companies from owning agricultural 

property, fertile land, or desert land in Egypt.28 

 

22 Ministerial Resolution No. 390-1982, AL-JARĪDAH AL-RASMĪYAH, 13 June 1982. 

23 Tom Rollins, Suffering in Silence, Sudanese Refugees Now Migrating from Egypt, AL-MONITOR (Aug. 2, 2015), 

http://www.al-monitor.com/pulse/originals/2015/07/egypt-cairo-sundanese-refugees-sea-unhcr.html#, archived at

http://perma.cc/8MR3-QWT4. 

24 Mohamed Abdel Salam, Egypt’s Responsibility in the Mediterranean Refugee Crisis, ATLANTIC COUNCIL (May 1, 

2015), http://www.atlanticcouncil.org/blogs/egyptsource/egypt-s-responsibility-in-the-mediterranean-refugee-crisis, 

archived at http://perma.cc/CAJ4-75YS. 

25 Egypt/Sudan: Traffickers Who Torture, HUMAN RIGHTS WATCH (Feb. 11, 2014), https://www.hrw.org/news/2014/ 

02/11/egypt/sudan-traffickers-who-torture, archived at https://perma.cc/DL3P-D5FU. 

26 EGYPTIAN CONSTITUTION OF 2012, AL-JARĪDAH AL-RASMĪYAH, 25 Dec. 2012, p. 2. 

27 Law No. 154-2004, AL-JARĪDAH AL-RASMĪYAH, 14 July 2004, p. 11. 

28 Law No. 28-2004, AL-JARĪDAH AL-RASMĪYAH, 14 July 2004, p. 2. 
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The Law Library of Congress 77 

 Presidential Decree No. 331 of 1980 adopted the Refugee Convention as domestic law.29 

 Presidential Decree No. 89 of 1960 on the Residency and Entry of Foreigners bans foreigners 

who do not have valid travel documents from entering the country.30

 Law No. 124 of 1958 prevents foreigners from owning agricultural land in Egyptian territory 

for security reasons.31 However, Law No. 15 of 1963 makes Palestinian refugees an 

exception to the provisions of Law No. 124. 

 

29 Presidential Decree No. 331-1980, AL-JARĪDAH AL-RASMĪYAH, 28 May 1981. 

30 Presidential Decree No. 89 of 1960, AL-JARĪDAH AL-RASMĪYAH, 18 Mar. 1960, available at http://muqtafi.birzeit. 

edu/InterDocs/images/164.pdf, archived at https://perma.cc/5BKQ-9JBV. 

31 Presidential Decree No. 124-1958, AL-JARĪDAH AL-RASMĪYAH, 24 Aug. 1958. 
The Law Library of Congress 78 

European Union

Theresa Papademetriou 

Senior Foreign Law Specialist

SUMMARY During the period of 2011–2014, the European Union (EU) reformed its legislation on 

asylum in order to achieve its overarching objective to establish a Common European 

Asylum System (CEAS). The refugee crisis has impeded further development of the 

CEAS. The Schengen system of passport-free travel throughout Europe is on the verge of 

collapse because of temporary border controls reinstated by a number of EU Members 

States. The Member States, especially countries of first entry like Greece and Italy, have 

faced extraordinary pressure in this crisis, severely testing their asylum systems. 

 The migrants who enter the EU are a mixed group composed of asylum seekers and 

economic migrants. Under CEAS, international protection is granted to those migrants 

who qualify as refugees due to a well-founded fear of persecution. Subsidiary protection 

status is granted to those who would face a real risk of suffering serious harm if returned to 

his/her country of origin. Member States are required to return illegal economic migrants 

to their country of origin; however, implementation of returns is difficult due to a lack of 

travel documents, a lack of detention facilities, and other factors. 

 At the core of CEAS is the right to asylum and the prohibition of refoulement, as 

guaranteed by the Charter of Fundamental Rights and the 1951 Geneva Convention 

Relating to the Status of Refugees and its 1967 Protocol. Both instruments bind EU 

Members, who must also comply with the case law of the Court of Justice of the European 

Union and the European Court of Human Rights (ECHR). The ECHR has held against 

several Member States for violating the EU’s legal regime on refugees on issues of 

detention, status of reception facilities, and lack of legal remedies. Greece, in particular, 

was found by the ECHR to have “serious deficiencies” in its asylum system and Member 

States are prohibited from sending refugees back to Greece, as the first country of entry, in 

compliance with the Dublin Regulation. The Dublin system has been identified as the key 

structural problem of CEAS because it places an undue burden on countries of first entry. 

 The CEAS is composed of a number of directives and regulations that require action by the 

EU Member States or are directly applicable within their national legal systems. The 

European Commission follows closely the full and correct implementation of CEAS and 

has adopted many decisions related to the application of asylum rules. 

 During 2015, the EU sought to ensure a coordinated European response to the refugee 

crisis. Various EU agencies provided assistance, financing, training, and experts to the 

Member States to implement CEAS. The Commission also allocated over €10 billion to 

address the refugee crisis and assist Member States, particularly those most impacted. To 

ensure better security of its external borders, the EU proposed the creation of a European 

Border and Coast Guard with new powers and shared responsibility for the EU borders 

with Member States. In November 2015, the Commission signed an Action Plan with 

Turkey designed to reduce the migration flow entering EU through Greece. 
Refugee Law and Policy: European Union 

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I. Introduction

During the period of 2011–2014 the European Union (EU) reformed the Common European 

Asylum System (CEAS) that was initiated in 1999. The EU was prompted to do so by a number 

of factors, such as an increased influx of migrants arriving at the borders; harsh conditions in 

reception facilities in some EU countries; a lack of uniform standards for assessing asylum 

applications; and vague rules contained in the Dublin Regulation1 as to which EU Member is 

responsible for handling asylum applications. The migratory crisis threatened the very existence 

of the Schengen area, an area of open internal borders, with free movement of persons 

guaranteed to EU citizens and those legally present.2 A common set of rules, as contained in the 

Schengen Borders Code, apply to persons at crossing points of the external borders of the EU.3 

CEAS is composed of several directives and regulations, which have been recast.4 It guarantees 

a set of common standards and requires stronger cooperation by EU Members to ensure that 

asylum seekers are treated fairly and equally wherever they apply.5

 

1

 Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the 

Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for 

International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person 

(recast), 2013 O.J. (L 180) 31, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013 

R0604&from=EN, archived at https://perma.cc/96R5-L8SL. 

2

 The Schengen area is composed of the twenty-eight EU Members, except Ireland and the United Kingdom. 

Bulgaria, Croatia, Romania, and Cyprus, although in the EU, are not yet full-fledged members of Schengen. In 

addition, four non-EU countries, Iceland, Liechtenstein, Norway, and Switzerland, also participate in the Schengen 

area. Schengen Area, EUROPEAN COMMISSION, MIGRATION AND HOME AFFAIRS, http://ec.europa.eu/dgs/homeaffairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm (last updated Jan. 29, 2016), archived at

https://perma.cc/LE59-EMYJ. The United Kingdom, Ireland, and Denmark have opted out of almost all EU 

instruments on asylum and immigration. Denmark participates in Schengen; however, it has the right to decide 

within six months on a proposal that constitutes a development of the Schengen acquis (Schengen existing 

legislation) whether it will implement the new measure into national law. Protocol No. 22 on the Position of 

Denmark art. 4, attached to the Treaty on the Functioning of the European Union, Consolidated Version of the 

Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 326) 47, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=en, archived at https://perma.cc/EUD9-LUZC. 

3

 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a 

Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), as 

amended, 2006 O.J. (L 105) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= OJ:L:2006:105:0001: 

0032:EN:PDF, archived at https://perma.cc/LX5K-LJTD. 

4

 Recasting is a single new act that consolidates the previous legislative act and all the amendments made to it. The 

new act passes through the full legislative process and repeals all the acts being recast. Recasting, EUROPEAN 

COMMISSION, LEGAL SERVICE, http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last visited Feb. 29, 2016), 

archived at https://perma.cc/E5EH-XK3K. 

5

 A 2014 report on immigration and asylum prepared by the European Migration Network highlights the changes 

made by the EU Member States to comply with the recast asylum legislation. EUROPEAN MIGRATION NETWORK,

EMN ANNUAL REPORT ON IMMIGRATION AND ASYLUM 2014: A SYNTHESIS OF ANNUAL POLICY REPORTS 2014

SUBMITTED BY EU MEMBER STATES AND NORWAY (June 2015), http://ec.europa.eu/dgs/home-affairs/what-wedo/networks/european_migration_network/reports/docs/annual-policy/2014/00.emn_annual_report_on_ 

immigration_and_asylum_synthesis_report.pdf, archived at https://perma.cc/6HZD-DHSV. 
Refugee Law and Policy: European Union 

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Several EU agencies, such as the European Asylum Support Office (EASO),6 Europol, and 

Eurojust, assist the EU Members—especially those which, due to their geographic location are 

disproportionally affected—in handling asylum requests through various funds,7

 materials, and 

experts. In addition, the European Agency for the Management of Operational Cooperation at 

the External Borders, commonly known as FRONTEX, which was created in 2004 to support the 

EU Members through joint operations on land, air, and sea,8

 was recently the subject of a 

Commission proposal9

 to replace FRONTEX with a new European Border and Coast Guard 

Agency (EBCGA), which would have increased powers, including the right to intervene in 

Member States’ border control functions, a monitoring and risk analysis center, and a European 

Return Office, in addition to increased funding and staff.10

II. General Principles of CEAS 

CEAS is based on the Geneva Convention Relating to the Status of Refugees of 1951, as 

amended by the New York Protocol of January 1967 Relating to the Status of Refugees.11 CEAS 

affirms the principle of nonrefoulement, enshrined in article 33 of the Geneva Convention, under 

which states are prohibited from returning refugees or asylum seekers back to countries where 

 

6

 Press Release, European Commission, Memo/11/415, Frequently Asked Questions: The European Asylum Support 

Office (EASO) (June 17, 2011), http://europa.eu/rapid/press-release_MEMO-11-415_en.htm?locale=fr, archived at

https://perma.cc/HEG5-WMHX. 

7

 The Asylum, Migration and Integration Fund (AMIF) was established for the period 2014–2020, with a total of 

€3.137 billion (about US$3.414 billion) for the seven years to ensure full implementation of the EU asylum system 

by the Member States, to assist them in their efforts to integrate third-country nationals legally staying in the EU and 

return illegal migrants to their countries of origin. Regulation (EU) No. 516/2014 of the European Parliament and of 

the Council of 16 April 2014 Establishing the Asylum, Migration and Integration Fund, Amending Council Decision 

2008/381/EC and Repealing Decisions No. 573/2007/EC and No. 575/2007/EC of the European Parliament and of 

the Council and Council Decision 2007/435/EC, 2014 (L 150) 168, http://ec.europa.eu/dgs/home-affairs/financing/ 

fundings/pdf/overview/regulation_eu_no_5162014_of_the_european_parliament_and_of_the_council_en.pdf,

archived at https://perma.cc/HS6G-DJ6J. 

8

 Council Regulation (EC) No. 2007/2004 of 26 October 2004 Establishing a European Agency for the Management 

of Operational Cooperation at the External Borders of the Member States of the European Union, 2004 O.J. (L 349) 

1, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R2007&from=EN, archived at

https://perma.cc/LD5S-LX8Z, as amended by Regulation (EU) No. 1168/2011 of the European Parliament and of 

the Council of 25 October 2011 Amending Council Regulation (EC) No. 2007/2004, 2011 O.J. (L 304) 1, http://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011R1168&from=EN, archived at 

https://perma.cc/3LYN-QXCD. 

9 Commission Proposal for a Regulation of the European Parliament and of the Council on the European Border 

and Coast Guard and Repealing Regulation (EC) No. 2007/2004, Regulation (EC) No. 863/2007 and Council 

Decision 2005/267/EC, COM (2015) 671 final (Dec. 15, 2015), http://ec.europa.eu/dgs/ home-affairs/what-wedo/policies/securing-eu-borders/legal-documents/docs/regulation_on_the_european_ border_and_coast_ 

guard_en.pdf, archived at https://perma.cc/KW9Z-LF2W. 

10 See Part XI(G), below. 

11 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, 150, https://treaties.un.org/doc/ 

Publication/UNTS/Volume%20189/v189.pdf, archived at https://perma.cc/A6MN-JB7K; Protocol Relating to the 

Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, https://treaties.un.org/doc/Publication/UNTS/Volume%20606/ 

v606.pdf, archived at https://perma.cc/594H-T6U6. 
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they face persecution due to race, religion, nationality, membership in a particular social group, 

or political opinion.12 

Article 18 of the Charter of Fundamental Rights of the European Union guarantees a right to 

asylum based on the Geneva Convention, and article 19 contains a ban on returning a person to a 

country where he/she has a well-founded fear of being persecuted or faces a real risk of being 

tortured or subjected to inhuman or degrading treatment.13 

The Court of Justice of the European Union (CJEU) ensures the correct interpretation and 

application of asylum law through the adoption of preliminary rulings, infringement proceedings 

against Member States who fail to comply with obligations laid down in EU asylum law, or 

actions for annulment when the legality of a provision of EU legislation is challenged. In 

particular, the CJEU is required to ensure the application of the Charter of Fundamental Rights 

of the EU, which establishes the right to asylum (art. 18) and provides for the prohibition of 

torture and inhuman or degrading treatment or punishment (art. 4); the right to protection in the 

event of removal, expulsion, or extradition (art. 19); rights of the child (art. 24); the right to good 

administration (art. 41); and the right to an effective remedy and a fair trial (art. 47). 

Furthermore, the EU Members, as members of the Council of Europe, are also bound by Council 

of Europe treaties, the case law of the European Court of Human Rights (ECHR), and other 

ratified international agreements that may apply, such as the Convention on the Rights of the 

Child in the case of minors. The ECHR is competent to judge human rights violations 

committed by state parties of the European Convention for the Protection of Human Rights and 

Fundamental Freedoms (the European Convention), including provisions such as the prohibition 

of inhuman or degrading treatment (art. 3), prohibition of collective expulsions (art. 4 of Protocol 

4), right to liberty and security (art. 5), right to respect of family and private life (art. 8), and right 

to an effective remedy (art. 13). These rights remain closely related to asylum—in particular, the 

principle of nonrefoulement and reception/detention conditions. 

 

III. Arrival at the Border 

A. Procedural Aspects 

Third-country nationals who reach the EU borders, including territorial waters and 

transit zones,14 and who wish to apply for international protection are subject to national 

legislation, which must comply with EU asylum legislation. Member States must guarantee the 

right to effectively make a claim for international protection without obstructions or undue 

 

12 The nonrefoulement principle is incorporated into EU primary law in article 78, which provides for a Common 

European Asylum System of the Treaty on the Functioning of the European Union. TFEU, supra note 2, art. 78. 

13 Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 391, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN, archived at https://perma.cc/SU9H-GRDL. 

14 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for 

Granting and Withdrawing International Protection (recast) art. 3, para. 1, 2013 O.J. (L 180) 60, http://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0032&rid=1, archived at https://perma.cc/3HBTLCUG. 
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delay. EU Members are allowed to adopt or retain more favorable standards as to who qualifies 

as a person in need of international protection and on reception conditions, as long as such rules 

and standards are, in general, compatible with EU rules.15

1. Registration 

Directive 2013/32/EU on Common Procedures for Granting and Withdrawing International 

Protection16 (the Common Procedures Directive) applies to all applications for international 

protection made in the EU territory, including its borders, territorial waters, or transit zones of 

the Member States.17 It also applies to the withdrawal of international protection. 

Registration of applications for international protection must be made within three days after 

they are filed.18 The three-day deadline may be extended to an additional three days if the 

application is made to authorities who have no competence to effect registration. If faced with a 

large number of applicants who need to file for international protection, the registration deadline 

can be extended to ten days.19 Member States must ensure that applicants are able to file their 

applications with the appropriate authorities.20

 

15 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the 

Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International Protection, for a 

Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection 

Granted art. 3, 2011 O.J. ( L 337) 9, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0095, 

archived at https://perma.cc/EX3D-62JJ. See also Directive 2013/32/EU, supra note 14, art. 5. 

16 Directive 2013/32/EU, supra note 14, art. 5. 

17 Sea and rescue operations involve individuals in boats seeking to enter the territorial waters of the EU Members. 

The maritime national authorities often engage in rescue operations for vessels in distress or push them back in other 

countries. In addition to international law of the sea agreements applicable in such cases, the EU Members are also 

bound by the nonrefoulement principle in rescue operations. The European Court of Human Rights (ECHR) has 

held that individuals in boats may fall within the jurisdiction of a Member State of the Council of Europe, when that 

Member State exercises control over them on the high seas. A case on point is Hirsi Jamaa and Others v. Italy, in 

which the Italian Coast Guard intercepted a boat with two hundred people on the high seas, but within Malta’s 

search and rescue area. Based on a bilateral agreement between Italy and Libya the migrants were returned to Libya 

without having an opportunity to apply for asylum. The Court found against Italy for returning them to Libya and 

exposing them to ill and degrading treatment in Libya. In addition Libya did not provide adequate guarantees that 

these people would not be sent back to their countries of origin in Somalia and Eritrea. The ECHR reaffirmed that 

the fact that the applicants did not ask for asylum or mention the dangers they faced in Libya due to the lack of an 

asylum process did not free Italy from its obligations under article 3 of the European Convention on Human Rights 

and Fundamental Freedoms. EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, HANDBOOK ON EUROPEAN 

LAW RELATING TO ASYLUM, BORDERS AND IMMIGRATION 38 (2014), http://fra.europa.eu/sites/default/files/ 

handbook-law-asylum-migration-borders-2nded_en.pdf, archived at https://perma.cc/R3ZP-U473. See also

EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, FUNDAMENTAL RIGHTS AT EUROPE’S SOUTHERN SEA 

BORDERS § 2.2 (2013), http://fra.europa.eu/sites/default/ files/fundamental-rights-europes-southern-sea-borders-jul13_en.pdf, archived at https://perma.cc/4Q5A-JEPK. 

18 Directive 2013/32/EU, supra note 14, art. 6, para. 1. 

19 Id. art. 6, para. 5. 

20 Id. art. 6, para. 2. 
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“International protection” is defined as a request made by a third-country national or a stateless 

person who seeks refugee status or subsidiary protection.21

The Common Procedures Directive requires EU Member States to designate personnel who are 

well-equipped to handle all incoming requests.22 In addition, staff must be well-trained under the 

guidelines and training developed of the European Asylum Support Office (EASO); for example, 

they must be aware that interviewees may have difficulty speaking about their case due to 

torture.23 Member States must ensure that the examination procedure is concluded within a sixmonth deadline from the time the application was submitted.24 

Member States may designate another national authority to be responsible for processing a case, 

based on the Dublin Regulation, or for granting or refusing permission to enter.25 

2. Fingerprinting 

The EURODAC Regulation, which became applicable July 20, 2015, established a 

computerized, encrypted, and centralized fingerprint database for asylum seekers and irregular 

border crossers known as EURODAC (for “European Dactyloscopy”), which consists of a 

Central Unit and a communications infrastructure between the Central System and Member 

States.26 Designated authorities, such as the law enforcement authorities of the Member States 

who are responsible for the prevention, detection, or investigation of terrorist offenses or other 

serious criminal offenses, are authorized to request comparison of fingerprinting 

through EURODAC. 

Pursuant to the EURODAC Regulation, Member States are required to take the fingerprints of all 

fingers of every applicant for international protection who is at least fourteen years of age. The 

competent national authorities must, as soon as possible and no later than seventy-two hours 

after the lodging of an application for international protection, forward the fingerprints together 

with certain specified data to the Central System.27 In the event that the seventy-two-hour 

deadline has passed, Member States are still required to submit the fingerprints of applicants. 

 

21 Id. art. 2(i); Directive 2011/95/EU, supra note 15, art. 2(a). 

22 Directive 2013/32/EU, supra note 14, art. 4, para. 1. 

23 Id. art. 4, para. 3. 

24 Id. art. 31, para. 3. 

25 Id. art. 4, para. 2. 

26 Regulation (EU) No. 603/2013 of the European Parliament and of the Council of 26 June 2013 on the 

Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (EU) No. 

604/2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining 

an Application for International Protection Lodged in One of the Member States by a Third-country National or a 

Stateless Person and on Requests for the Comparison with Eurodac Data by Member States’ Law Enforcement 

Authorities and Europol for Law Enforcement Purposes, and Amending Regulation (EU) No. 1077/2011 

Establishing a European Agency for the Operational Management of Large-scale IT Systems in the Area of 

Freedom, Security and Justice (EURODAC Regulation), 2013 O.J. (L 180) 1, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32013R0603&from=EN, archived at https://perma.cc/UJK5-VKF9. 

27 Id. art. 9, para. 1. 
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In addition, Member States are required to take the fingerprints of all fingers of every thirdcountry national or stateless person who is at least fourteen years of age who is apprehended by 

border patrol authorities in connection with an irregular crossing by land, sea, or air of the border 

of that Member State.28

In addition to fingerprinting, other information added to EURODAC includes Member State of 

origin and information on any application for international protection.29

The EURODAC system is used by the competent authorities of the Member States to verify 

whether a third-country national or a stateless person who is illegally within its territory has filed 

an application for international protection in another Member State.30 For this purpose, a 

Member State may transmit to the Central System any fingerprint data and, through a reasoned 

electronic request, ask for a comparison with fingerprints already in the system.31

3. Allocation of Responsibility for Asylum Claim: The Dublin Regulation 

Pursuant to article 3(1) of the Dublin Regulation 604/2013 (recast) (Dublin Regulation) the EU 

Member States must examine any application for international protection lodged by a thirdcountry national or a stateless person and such application must be examined by one single 

Member State. The Dublin Regulation is binding on Member States and Norway, Iceland, 

Liechtenstein, and Switzerland.32 

The Dublin Regulation covers applications for international protection lodged as of January 1, 

2014, and all requests to take back applicants for international protection or take charge in case a 

Member State wishes to review an application irrespective of criteria after January 1, 2014. An 

amended Dublin Implementing Regulation was adopted by the Commission on January 2014 and 

took effect in February 2014.33 

The Dublin Regulation lays down the criteria and ways to determine which Member State of the 

European Union is responsible for reviewing an application for international protection.34 The 

 

28 Id. art. 14, para. 1. 

29 Id. art. 11. 

30 Id. art. 17, para. 1. 

31 Id. arts. 17, 19. 

32 Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the 

Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for 

International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person 

(recast), 2013 O.J. (L 180) 31, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013 

R0604&from=EN, archived at https://perma.cc/96R5-L8SL. 

33 Commission Implementing Regulation (EU) No. 118/2014 of 30 January 2014 Amending Regulation (EC) No. 

1560/2003 Laying Down Detailed Rules for the Application of Council Regulation (EC) No. 343/2003 Establishing 

the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application 

Lodged in One of the Member States by a Third-country National, 2014 O.J. (L 39) 1, http://eur-lex.europa. 

eu/LexUriServ/LexUriServ.do?uri=OJ:L:2014:039:0001:0043:EN:PDF, archived at https://perma.cc/J7ZP-BW3P. 

34 Regulation (EU) No. 604/2013, supra note 32, arts. 7, 8, 12 & 13. 
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criteria that are to be applied, in hierarchical order, are (a) the existence of a family in a Member 

State; (b) having a visa or residence permit in a Member State; and (c) entry into a Member 

State, whether illegally or not.35 They are designed to prevent the circumstance of one individual 

abusing the system by filing applications in more than one Member State, and to avoid having 

people sent from one Member State to another by national authorities. 

The application must be examined by a single Member State which, based on the criteria 

established, is the Member State responsible. If, based on the criteria listed above, no Member 

State can be designated as responsible, then, by default, the first Member State in which the 

application for international protection was lodged must take responsibility for examining it.36

Based on a discretionary clause in the Dublin Regulation, each Member State is permitted to 

examine an application for international protection, even if the criteria for determining 

responsibility have not been met. In such a case, that Member State must notify the Member 

States concerned through the DubliNet electronic communications network.37

The Dublin Regulation established an Early Warning Mechanism to prevent pressure on the 

asylum systems of Member States which encounter problems due to a large number of incoming 

migrants.38 In such a case, the Commission in order to avert a danger to the application of the 

Dublin Regulation, in cooperation with the EASO will prepare a preventive action plan for the 

Member State facing difficulties in its asylum system.39 The Member State concerned must 

report back to the Commission on actions taken on the basis of the action plan. 

There are specific provisions in the Dublin regulation and in other instruments of the CEAS 

concerning unaccompanied minors entering the EU. Family reunification and the best interests 

of the child are the primary concerns. The Commission was prompted to amend the rules of the 

2013 Dublin Regulation because of a large number of unaccompanied minors entering the EU 

beginning in 2014 and continuing in 2015, and in order to comply with a relevant decision of the 

European Court of Justice issued in 2013. 40 The Court ruled that when an accompanied minor 

has filed an asylum application in more than one state, the Member State responsible for 

reviewing the asylum application is the one where the minor is located and has filed an 

 

35 Id. 

36 Id. art. 3, paras. 1 & 2. 

37 Id. art. 17. 

38 Id. art. 33. 

39 Id. 

40 Proposal for a Regulation of the European Parliament and of the Council Amending Regulation (EU) No. 

604/2013 as regards Determining the Member State Responsible for Examining the Application for International 

Protection of Unaccompanied Minors with No Family Member, Sibling or Relative Legally Present in a Member 

State, COM (2014) 382 final, http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-382-EN-F1-1.Pdf, 

archived at https://perma.cc/PK35-M5HK. 
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application. For this to apply, no member of the minor’s family may be legally present in 

another Member State.41 

4. Personal Interview 

An applicant is subject to a personal interview by a person who is competent under national law 

to conduct interviews.42 In the case a large influx of migrants applying at the same time, 

Member States may designate personnel from another national authority to temporarily conduct 

interviews.43 Interviews are to be conducted in conditions that ensure confidentiality and without 

the presence of family members.44 The authority that conducts the interview on the substance of 

an application for international protection must provide the applicant with sufficient time to 

present evidence to substantiate his/her application.45

5. Medical Examination 

A medical examination can be ordered, with the applicant’s consent and paid by public funds, if 

the determining authority deems the examination necessary to confirm past persecution or 

serious harm.46 

B. Substantive Rights 

1. Access to Legal Information 

During the first-instance procedure, Member States are required to provide legal and procedural 

information in a language that a person understands, free of charge. In the event of a negative 

decision, national authorities also provide information regarding the right of appeal.47

Member States must ensure that applicants have the opportunity to seek legal assistance at their 

own cost on issues related to their application, including in the case of a negative decision. 

EU Members must ensure that applicants for international protection enjoy the following 

guarantees: (a) be informed in a language they understand of their rights and obligations during 

the procedure and receive the services of an interpreter, if necessary; (b) be given an opportunity 

to communicate with the United Nations High Commissioner for Refugees or other organization 

 

41 Press Release No. 71/13, Court of Justice of the European Union, Case C-648/11 MA, BT, DA v. Secretary of 

State for the Home Department (June 6, 2013), http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-

06/cp130071en.pdf, archived at https://perma.cc/675M-V4LA. 

42 Directive 2013/32/EU, supra note 14, art. 14, para. 1. 

43 Id. 

44 Id. art. 15, paras. 1 & 2. 

45 Id. art. 16. 

46 Id. art. 18, para. 1. 

47 Regulation (EU) No. 604/2013, supra note 32, art. 2, paras. 1 & 2. 
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that provides legal assistance; and (c) be given notice of the decision of the determining authority 

within a reasonable time and the results of the decision. 

2. Right to an Effective Remedy 

Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to an 

effective remedy to everyone. According to article 46 of the Common Asylum Procedures 

Directive, European Union law requires that asylum seekers must have the right to request a 

review of a negative asylum decision before a court or tribunal in the case of (a) an unfounded 

negative decision on the applicant’s application for international protection; (b) a decision that 

the application is inadmissible; (c) a decision to withdraw international protection; and (d) a 

decision taken at the borders or in a transit zone.48

3. Right to Remain in the Member State 

Applicants have the right to remain in the Member State where they applied until the competent 

authority decides on the case. However, the right to remain does not entitle the applicant to a 

residence permit.49

4. Freedom of Movement 

Member States must allow applicants to move freely within their territory, or within an area 

assigned to them, and give them permission to leave the assigned area.50 

5. Material Reception and Health Care 

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 requires 

EU Members to provide “material reception conditions” (i.e., housing, food, clothing) and health 

care to ensure an adequate standard of living and to guarantee the physical and mental welfare of 

applicants for international protection.51 The health care provided must include at a minimum 

emergency care and treatment of sickness and serious mental disorders.52 Member States must 

ensure that applicants receive necessary health care, which must include at a minimum 

emergency care and the essential treatment of illnesses and serious mental disorders. 

EU Members have the discretion to make the availability of material reception conditions and 

health care conditional on the lack of sufficient means by the applicants to secure for themselves 

an adequate standard of living.53 The material reception conditions may be provided in kind, in 

 

48 Directive 2013/32/EU, supra note 14, art. 3, para. 1. 

49 Id. art. 9, para. 1. 

50 Id. art. 7, para. 1. 

51 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for 

the Reception of Applicants for International Protection, 2013 O.J. (L 180) 96, http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=celex%3A32013L0033, archived at https://perma.cc/H6EY-BE5B. 

52 Id. art. 19. 

53 Id. art. 17, paras. 1–3. 
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the form of vouchers, or via financial allowances, or by a combination of the three, including a 

daily expenses allowance.54 They also have the freedom to require that applicants cover or 

contribute to the material conditions and health care costs, if applicants are financially able to do 

so.55 Where housing is provided, it could be in the form of accommodation centers or premises 

used for the examination of applicants during border procedures, or even apartments, houses, or 

hotels converted to house applicants.56 When housing applicants, Member States must take into 

consideration applicants’ age and gender, and the needs of vulnerable people.57

6. Schooling and Education for Minors 

Member States are obliged to give the minor children of applicants and applicants who are 

minors access to the state educational system under similar conditions as their own nationals 

within three months from the date the application was made.58 National authorities must provide 

preparatory classes, including language classes, to minors where necessary to facilitate their 

participation in education.59

7. Employment and Vocational Training 

Member States are required to provide applicants access to the labor market no later than nine 

months from the date when the application for international protection was made.60 The 

conditions for access must be in compliance with national law. Applicants must also have access 

to vocational training irrespective of whether they have access to the labor market.61

8. Guarantees for Detained Applicants 

In general, the detention of applicants seeking international protection is not allowed; Member 

States must consider alternatives to detention, where possible, in accordance with national law. 

However, such applicants may be detained on the following specific grounds: (a) to verify the 

applicant’s nationality or identity; (b) to determine aspects on which the application for 

international protection was based; (c) to review whether the applicant has the right to enter the 

territory of a Member State; (d) where the applicant is subject to a return procedure; or (e) to 

protect national security or public order.62 The detention of applicants must be ordered in 

writing by the appropriate judicial or administrative authorities, stating the grounds for detention, 

 

54 Id. art. 2(g). 

55 Id. art. 17, para. 4. 

56 Id. art. 18, para. 1. 

57 Id. art. 18, para. 3. 

58 Id. art. 14. 

59 Id. art. 14, paras. 1 & 2. 

60 Id. art. 15. 

61 Id. art. 16. 

62 Id. art. 8. 
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and must be as short as possible.63 When detention is ordered by administrative authorities, it is 

subject to judicial review.64 Regardless of the authority that ordered it, the detention decision is 

subject to judicial review at reasonable intervals, either at the request of the applicant or ex 

officio.

65 Moreover, applicants must have free access to legal representation and legal 

assistance.66 Member States may make such free access conditional on the lack of financial 

resources of the detained applicant and, with regard to legal services, may limit it to legal 

services designated for that purpose under national law.67

IV. Qualifications for International Protection

A. Requirements 

Applications for international protection submitted by third-country nationals or stateless persons 

are governed by Directive 2011/95/EU, which establishes common standards to grant 

international protection to those who qualify.68 Applicants must provide all documentation 

available and any statements made to the appropriate authorities, including information as to 

whether the applicant has been subjected, or may be subjected, to persecution or harm.69 The 

Directive allows for the possibility that an applicant may claim that he or she has a well-founded 

fear of being persecuted or a real risk of suffering serious harm for events that occurred after the 

applicant left the country of origin.70 

The authorities must assess on a case-by-case basis whether an applicant for international 

protection is a refugee within the meaning of article 1(a) of the Geneva Convention or a person 

eligible for subsidiary protection. 

Pursuant to the Directive, persecution can be committed by the state, parties or organizations 

controlling the state, or parties or organizations having under their control a substantial part of 

the territory. It may also include non-state actors if they cannot or are unwilling to protect 

victims of persecution.71

The principle of nonrefoulement is not absolute. Under certain circumstances, a person, whether 

formally recognized or not, may be removed from the EU territory, if he/she poses a threat to the 

 

63 Id. art. 9, paras. 1 & 2. 

64 Id. art. 9, para. 3. 

65 Id. art. 9, para. 5. 

66 Id. art. 9, para. 6. 

67 Id. art. 9, para. 7(a) & (b). 

68 Directive 2011/95/EU, supra note 15 (applicable as of Dec. 21, 2013). 

69 Id. art. 4, paras. 1 & 3(b). 

70 Id. art. 5, paras. 3–5. 

71 Id. art. 6. 
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security of an EU Member State, or if he/she is deemed a threat to the host country after the 

commission of a crime.72

1. Refugee Status 

To be granted refugee status, an applicant must meet the following criteria:

 Face a well-founded fear of persecution. 

 The grounds for persecution must be related to the applicant’s race, religion, nationality, or 

membership in a particular social group. 

 A causal link must exist between the well-founded fear of persecution on the grounds of 

one’s race, religion, nationality, political opinion, or membership in a particular social group 

and the acts of persecution.73

 The acts of persecution may take a variety of forms, such as physical or mental violence, 

including sexual violence, and in the case of a minor may also include acts of a genderspecific or child-specific nature.74 

2. Subsidiary Protection Status 

In order to grant subsidiary protection status, there must be substantial grounds to believe that an 

applicant who does not otherwise qualify for refugee status would face a real risk of suffering 

serious harm if returned to his/her country of origin. The qualification for subsidiary protection 

from a “real risk of suffering serious harm” includes the death penalty or execution, torture or 

other inhuman or degrading treatment or punishment, or a serious and individualized threat to the 

minor due to violence in the case of internal armed conflict.75 

The applicant must provide information pertaining to his/her age, background, country of origin, 

relatives, travel documents (if any), and reasons for applying for international protection.76 Each 

application is examined individually. 

B. Rights Granted to Refugees and to Persons Given Subsidiary Protection Status 

Applicants, after being granted refugee status or subsidiary protection, must be given information 

about their rights and obligations arising from obtaining a new status. Member States are 

obliged to retain family unity.77 Member States are required to provide the following 

entitlements to those who are given refugee status or subsidiary protection: 

 

72 Id. arts. 17 & 21. 

73 Id. art. 9, para. 3. 

74 Id. art. 9(a) & (c). 

75 Id. art. 15. 

76 Id. art. 4, para. 2. 

77 Id. art. 23. 
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1. Residence Permit 

Those who are accorded refugee status must be given a residence permit valid for three years, 

which can be renewed.78 Those accorded subsidiary protection receive a renewable residence 

permit valid for one year.79 

2. Travel Documents 

Travel documents are given to refugees to enable them to travel outside the territory of the host 

country, unless there are security reasons or public order concerns that require otherwise.80 

Those who are granted subsidiary protection status and who are unable to obtain a national 

passport are given documents for the purpose of traveling outside the country.81 

3. Access to Employment 

Member States must authorize refugees and those with subsidiary protection status access to be 

employed or self-employed, subject to rules generally applicable to the profession and to public 

service, immediately after they are granted refugee status.82 Refugees must be paid in 

accordance with the applicable laws on remuneration and have access to social security systems 

relating to employed or self-employed activities and other conditions of employment.83

4. Education 

All minors who have been given international protection must have full access to the education 

system, under the same conditions as nationals.84 Adults must be given access to the general 

education system, training, or retraining, under the same conditions as third-country nationals 

who are legal residents.85

5. Social Welfare and Health Care 

Individuals who are granted international protection must receive in the Member State that has 

granted such protection necessary social assistance comparable to that received by nationals of 

the Member State.86 Member States are free to limit the social assistance granted to core 

 

78 Id. art. 24, para. 1. 

79 Id. art. 24, para. 2. 

80 Id. art. 25, para. 1. 

81 Id. art. 25, para. 2. 

82 Id. art. 26. para. 1. 

83 Id. art. 26, para. 4. 

84 Id. art. 27, para. 1. 

85 Id. art. 27, para. 2. 

86 Id. art. 29, para. 1. 
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benefits, which will then be provided at the same level and under the same eligibility conditions 

as apply to nationals.87

Such individuals must also have access to healthcare under the same eligibility conditions as 

nationals of the Member State that has granted protection.88

V. Long-Term Status Granted to Refugees 

Directive 2011/51/EU allows refugees and beneficiaries of international protection to be able to 

acquire long-term resident status on a similar basis as other third-country nationals legally living 

in the EU for more than five years.89 Member States had to comply by 2013. The UK, Ireland, 

and Denmark did not take part in the application of this Directive and they are not bound by it. 

After five years, those accorded long-term status will be able to enjoy freedom of movement 

within the EU and the right to become a resident in another Member State. Under certain 

conditions, they will also enjoy equality of treatment with citizens of the EU Member State in 

which they reside in a wide range of economic and social matters. These include education, 

access to the labor market, and social security benefits. 

VI. Temporary Protection in the Case of a Mass Influx of Displaced Persons 

Council Directive 2001/55/EC establishes minimum standards for temporary protection to be 

applied in the case of a large influx of displaced persons from third countries who cannot return 

to their countries of origin.90 The Directive is designed to come into play in grave situations of 

unrest in a particular country—for instance, when due to armed conflict or endemic violence 

people are at serious risk of, or have been the victims of, “systematic or generalised violations of 

their human rights.”91

Immediate and temporary protection is given to avoid overburdening the asylum system of 

countries and to ensure the smooth operation of such systems during a crisis.92 The duration of 

temporary protection is one year, with the possibility of extending it to a maximum of an 

additional year.93 EU Members are required to provide medical and other support for people 

 

87 Id. art. 29, para. 2. 

88 Id. art. 30. 

89 Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 Amending Council 

Directive 2003/109/EC to Extend Its Scope to Beneficiaries of International Protection Text with EEA Relevance, 

2011 O.J. (L 132) 1, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011L0051, archived at 

https://perma.cc/FV7F-AMJR. 

90 Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the 

Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member 

States in Receiving such Persons and Bearing the Consequences Thereof, 2001 O.J. (L 212) 12, http://eur-lex. 

europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0055&from=en, archived at https://perma.cc/8M28-

9BNH. 

91 Id. art. 2(c). 

92 Id. art. 2(a). 

93 Id. art. 4(1). 
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with special needs, such as minors or those who have been subjected to rape, torture, or other 

physical or psychological abuse.94 Minors under the age of eighteen must also have access to the 

education system of the host country.95 Persons under temporary protection must have access to 

apply for asylum at any time.96 After temporary protection has ended, the national laws on aliens 

of the EU Members becomes applicable.97 The individual EU Members are responsible for 

taking measures to ensure the voluntary return of persons.98 

VII. Court Cases 

Even though there is no right to asylum as such under the European Convention for the 

Protection of Human Rights and Fundamental Freedoms (Convention on Human Rights), which 

binds all EU Members, the European Court of Human Rights has dealt with a large number of 

cases involving asylum seekers whose human rights have been violated—for example, for 

maltreatment while being kept in detention centers or in reception facilities. The Court has also 

examined whether national authorities, by sending back individuals seeking asylum, put those 

asylum seekers at risk of being tortured or subjected to inhuman or degrading treatment or 

punishment, which is contrary to article 3 of the Convention on Human Rights. In such cases, 

national authorities can be found guilty for violating the human rights of the asylum seekers. 

This particular issue was dealt with favorably for the asylum seekers in the case of Hirsi Jamaa 

and Others v. Italy, which involved persons intercepted in international waters.99

Another illustrative case, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, involved the twomonth detention at a Brussels airport transit center intended for adults of a five-year-old child 

traveling unaccompanied to join her mother, who had obtained refugee status in Canada. No one 

was assigned to represent or counsel the child. The ECHR found a violation of article 3, which 

prohibits inhuman and degrading treatment under the Convention on Human Rights. The Court 

took into account the fact that the child was in great distress because of her very tender age, that 

she was alone in a foreign land, and that the Belgian authorities ignored their obligation to take 

care of her, and determined that any measures taken by Belgian authorities were inadequate.100 

The case of M.S.S. v. Belgium and Greece involved living conditions in reception centers in 

Greece. An Afghan national entered the EU through Greece and then went to Belgium, where he 

applied for asylum. On the basis of the Dublin Regulation he was sent back to Greece as the first 

 

94 Id. art. 13(4). 

95 Id. art. 14(1). 

96 Id. art. 17(1). 

97 Id. art. 20. 

98 Id. art. 21(1). 

99 HANDBOOK ON EUROPEAN LAW RELATING TO ASYLUM, BORDERS AND IMMIGRATION, supra note 17, at 38 

(discussing Hirsi Jamaa and Others v. Italy, App. No. 27765/09 (ECHR Feb. 23, 2012), http://hudoc.echr.coe.int/ 

sites/eng/pages/search.aspx?i=001-109231, archived at https://perma.cc/5FXC-C6T2). See also case discussion, 

supra note 17. 

100 Case of Mubilanzila Mayeka & Kaniki Mitunga v. Belgium, App. No. 13178/03 (ECHR Oct. 12, 2006), 

http://hudoc.echr.coe.int/sites/eng/pages/ search.aspx?i=001-77447, archived at https://perma.cc/7XAE-DTDL. 
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country of entry into the EU. There he was kept in detention in a small room with twenty other 

detainees with limited access to restroom facilities. The Grand Chamber of the ECHR in 2011 

found that Greece violated article 3 of the Convention on Human Rights, as well as article 13, on 

the right to an effective remedy, because of flaws in Greece’s asylum procedures. It found that 

Belgium violated article 3, because the applicant’s transfer to Greece exposed him to harsh living 

conditions and to flawed Greek asylum procedures.101 

The case of Conka v. Belgium102 involved four applicants, a couple and their two minor children 

of Roma origin who had fled their country of origin, Slovakia, because of violence and threats 

directed at them by skinheads, from whom the police refused to protect them. Their subsequent 

application for asylum in Belgium was declared inadmissible for lack of sufficient evidence to 

qualify them as refugees, and the family was ordered to leave the country within five days. 

Before the ECHR, the applicants asserted a violation of Protocol 4, article 4, of the Convention 

on Human Rights, which prohibits the collective expulsion of aliens.103 The ECHR reviewed the 

applicable domestic law, including a guidance document on immigration policy approved by the 

government in the aftermath of a large number of asylum seekers from Slovakia. The Note 

contained the following statement: 

A plan for collective repatriation is currently under review, both to send a signal to the 

Slovakian authorities and to deport this large number of illegal immigrants whose 

presence can no longer be tolerated.104

The ECHR reaffirmed the definition of collective expulsion as including any measure that orders 

aliens as a group to leave a country, without “reasonable and objective examination of the 

particular case of each individual alien of the group.”105 The Court found that authorities had 

announced that deportations would take place and had given instructions and orders to that 

effect, and that the applicants were deprived of the opportunity to contact a lawyer.106 Based on 

these grounds, the ECHR found a violation of Protocol 4, article 4.107 

 

 

101 Grand Chamber Decision, Case of M.S.S. v. Belgium and Greece, App. No. 30696/09 (ECHR Jan. 21, 2011), 

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i=001-103050, archived at https://perma.cc/P9GT-HTBU. 

102 Case of Čonka v. Belgium, App. No. 51564/99 (ECHR final judgment, May 5, 2002), http://hudoc.echr.coe. 

int/sites/eng/pages/search.aspx?i=001-60026, archived at https://perma.cc/Q59T-F3TU. 

103 Protocol No. 4 to the European Convention on Human Rights, as amended by Protocols Nos. 11 and 14, 

supplemented by Protocols Nos. 1, 4, 6, 7, 12, http://www.echr.coe.int/Documents/Convention_ENG.pdf, archived 

at https://perma.cc/XGA9-FACR. 

104 Case of Čonka v. Belgium para. 31. 

105 Id. para. 59. 

106 Id. para. 62. 

107 Id. para. 63. 
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VIII. Return Proceedings 

A. Returns Directive 

All migrants who are illegally present in the EU and who are not in the process of obtaining an 

authorization to stay must be deported. Under the Returns Directive,108 EU Members are obliged 

to regularize illegal migrants who meet the requirements or to issue a “return decision.”109 

Return decisions, which can be administrative or judicial, declare the stay in the EU illegal and 

order that the person concerned leave the EU. Return decisions must contain a period for 

voluntary departure of between seven and thirty days.110 When an illegally present third-country 

national overstays the period for voluntary return, or when no such period was set, an 

administrative or judicial order can be issued to effect a removal.111 

Return decisions are not automatic, since the Directive provides a number of exceptions to the 

rule. For instance, Member States may not issue a return decision under bilateral agreements to 

accept the return of third-country nationals.112 In addition, EU Members may issue an 

autonomous residence permit or other authorization to a third-country national who stays 

illegally in their territory based on compassionate or humanitarian reasons, or for 

other reasons.113

Return decisions must be accompanied by an entry ban in two instances: (a) if no period for 

voluntary departure has been granted, or (b) if the obligation to return has not been complied 

with. In other cases return decisions may be accompanied by an entry ban.114 In October 2015, 

the CJEU determined that Directive 2008/115/EC does not preclude a Member State from 

imposing criminal sanctions on illegal migrants who re-enter its territory, following a deportation 

order and a prohibition on their re-entry.115

 

 

108 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common 

Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. 

(L 348) 98, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008L0115, archived at

https://perma.cc/UL6R-AC9R. 

109 Id. art. 6, para. 1. 

110 Id. art. 7, para. 1. 

111 Id. art. 8. 

112 Id. art. 6, para. 3. 

113 Id. art. 6, para. 4. 

114 Id. art. 11, para. 1. 

115 Case of C-290/14, para. 33 (Eur. Ct. J., Oct. 1, 2015), http://curia.europa.eu/juris/document/document.jsf;jsession 

id=9ea7d0f130d5872e494c631a42ad8665de6bd433cfc6.e34KaxiLc3eQc40LaxqMbN4Och8Re0?text=&docid=168

941&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=841053, archived at 

https://perma.cc/VS3F-Z8W6. 
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B. Readmission Agreements 

Even though, under international law, third countries are required to readmit their nationals, the 

EU experiences difficulties in implementing its return policy. There are a number of 

readmission agreements between the Member States and the EU that become operational when a 

return decision has been issued by national authorities.116 These agreements set forth the 

reciprocal obligations of the parties involved to take back their own nationals or third-country 

nationals who transit through their respective territories.117 So far, the EU has concluded 

seventeen readmission agreements with third countries, and others are being negotiated.118

Currently, the EU focuses on certain third countries that have a low level of admitting their 

nationals and with whom negotiations to conclude readmission agreements progress very slowly. 

The EU has identified Algeria and Morocco in this category. On the other hand, the readmission 

agreement with Pakistan has not been properly implemented, due to lack of cooperation by 

Pakistani authorities.119

IX. Resettlement 

Resettlement is deemed an integral part of CEAS. In June 2015, the Commission came up with a 

Recommendation to resettle 22,504 persons who are in third countries and need international 

protection.120 Implementation will begin after the High Commissioner for Refugees makes a 

referral and will extend for a period of two years. The following EU Members have made 

pledges to resettle refugees: Belgium (123), Czech Republic (16), Ireland (163), Italy (96), the 

Netherlands (220), the United Kingdom (1,000), Liechtenstein (20), and Switzerland (387).121 

The Commission intends to propose an EU-wide resettlement initiative by April 2016.122

As noted below, the Asylum, Migration and Integration Fund provides some financial support to 

Member States to assist them with resettlement of refugees. 

 

116 Return and Readmission, Common Rules for Managing the Return of Irregular Migrants, EUROPEAN 

COMMISSION, MIGRATION & HOME AFFAIRS, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/irregularmigration-return-policy/return-readmission/index_en.htm (last updated May 6, 2015), archived at

http://perma.cc/B28F-F6VL. 

117 Id. 

118 Id. 

119 Communication from the Commission to the European Parliament and the Council on the State of Play of 

Implementation of the Priority Actions Under the European Agenda on Migration, COM (2016) 85 final (Feb. 10, 

2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposalimplementation-package/docs/managing_the_refugee_crisis_state_of_play_20160210_en.pdf, archived at 

https://perma.cc/S577-U2HM. 

120 Commission Recommendation of 8.6.2015 on a European Resettlement Scheme, COM (2015) 3560 final (June 8, 

2015), http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/asylum/general/docs/recommendation_ 

on_a_european_resettlement_scheme_en.pdf, archived at https://perma.cc/Y86W-V574. 

121 Id. 

122 Id. 
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X. Financial Instruments 

A number of EU financial programs provide assistance to EU Members in dealing with asylum 

procedures and the reintegration or return of minors to their country of origin: 

 The European Fund for the Integration of Third-Country Nationals provides for the 

integration of third-country nationals who reside legally in the EU with the objective to 

achieve economic and social cohesion.123 

 The EU provides assistance to the EU Members to return illegal migrants to their country of 

origin through the European Return Fund (ERF). During the period of 2008–2013, the ERF 

provided more than €600 million (about US$802 million). The ERF covers specific 

expenditures connected with the return of unaccompanied minors, such as the cost of travel 

and food for returnees, information on return, family reunification in the country of origin, 

and other matters. The ERF can also be used to implement the Returns Directive.124 

 The Asylum, Migration and Integration Fund (AMIF), adopted on April 16, 2014, runs until 

2020 and replaces three funds—the ERF, the European Fund for the Integration of thirdcountry nationals, and the European Return Fund. With a current budget of €3.137 billion, 

AMIF provides support such as material aid, education, training, special assistance for 

vulnerable persons, health and psychological care, assistance with judicial matters, and 

assistance with national resettlement programs. For the period between 2014 and 2020 the 

AMIF will spend a total of €3.137 billion on asylum, migration, and integration of thirdcountry nationals in the EU. The European Parliament intends to request that the Court of 

Auditors oversee the expenditure of funds by the Member States. 

 The assistance provided by the EU to littoral states, such as Greece, Italy and Malta, who 

receive the majority of illegal migrants due to their geographic proximity to the sea and 

based on the Dublin Regulation as the first countries of entry, has been criticized as 

inadequate relative to the amount spent by those countries.125

XI. Measures to Respond to Refugee Crisis 

On September 9, 2015, the European Commission adopted a Communication that contains shortand long-term measures to address the current migrant crisis, to assist countries of entry through 

the creation of “hotspots,” and to address the root causes of irregular migration. The concrete 

operational, budgetary, and legal proposals are annexed to the Commission’s Communication 

 

123 Council Decision 2007/435/EC of 25 June 2007 Establishing the European Fund for the Integration of Thirdcountry Nationals for the Period 2007 to 2013 as Part of the General Program ‘Solidarity and Management of 

Migration Flows,’ 2007 O.J. (L 168) 18, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:3200 

7D0435&rid=2, archived at https://perma.cc/3WKS-MXJH. 

124 Return Fund, EUROPEAN COMMISSION, MIGRATION & HOME AFFAIRS, http://ec.europa.eu/dgs/homeaffairs/financing/fundings/migration-asylum-borders/return-fund/index_en.htm (last updated June 20, 2014), 

archived at https://perma.cc/MDU8-6SUM. 

125 See, e.g., Europe’s Huddled Masses: Rich Countries Must Take on More of the Migration Burden, THE 

ECONOMIST (Aug. 16, 2014), http://www.economist.com/news/leaders/21612152-rich-countries-must-take-moremigration-burden-europes-huddled-masses (registration required). 
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and were published on the same date.126 On February 10, 2016, the Commission followed up on 

the status of implementation with the adoption of a Communication on the State of Play of 

Implementation of the Priority Actions Under the European Agenda on Migration.127 The most 

significant measures contained in these Communications are highlighted below. 

A. Creation of “Hot Spot” Areas 

The Commission recommended that Greece and Italy, because of the extraordinary pressure on 

their borders from migratory inflows, create “hotspot” areas, to be able to expand reception 

capacities for proper registration and fingerprinting of refugees. The Commission cited as 

examples the areas of Sicily and Lampedusa in Italy and the islands of Lesbos and Kos in 

Greece. These hotspots are where most migrants have been entering the EU during the current 

crisis.128 The Commission also recommended that the EU provide operational support to Italy 

and Greece through the EU Agencies FRONTEX, the European Asylum Support Office, and 

Europol, to ensure that migrants are registered and to prevent them from moving to other 

Member States without registration. As the Commission pointed out in its 2016 Communication, 

only three hotspots are fully operational—one in Greece and two in Italy.129 The Greek 

government promised to render the other hotspot areas fully operational as soon as possible.130

B. Temporary Relocation Plan 

On September 22, 2015, the EU Justice and Home Affairs Council adopted a relocation plan in 

order to improve the situation of those EU Member States, such as Greece and Italy, that have 

been most affected.131 The plan to relocate 120,000 people was strongly opposed by the Czech 

Republic, Hungary, and Slovakia. Poland initially was against it, but finally endorsed the 

decision. In the initial proposal, the Commission had also included Hungary as a third country to 

benefit from the relocation proposal by relocating 54,000 people in need of international 

protection; however, Hungary refused to participate.132 

 

126 Communication to the European Parliament, the European Council and the Council, Managing the Refugee 

Crisis: Immediate Operational, Budgetary and Legal Measures Under the European Agenda on Migration, COM 

(2015) 490 final (Sept. 9, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agendamigration/proposal-implementation-package/docs/communication_on_managing_the_refugee_crisis_en.pdf, 

archived at https://perma.cc/2WD4-LX7Q. 

127 Communication on the State of Play, COM (2016) 85 final, supra note 119, at 8. 

128 Id., Annex II: Migration Management Support Teams Working in ‘Hotspot’ Areas (Sept. 23, 2015), 

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementationpackage/docs/communication_on_managing_the_refugee_crisis_annex_2_en.pdf, archived at 

https://perma.cc/CY5T-7LZE. 

129 Communication on the State of Play, COM (2016) 85 final, supra note 119, at 8. 

130 Id. at 9. 

131 Council Decision (EU) 2015/1601 of 22 September 2015 Establishing Provisional Measures in the Area of 

International Protection for the Benefit of Italy and Greece, 2015 O.J. (L 248) 80, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32015D1601&from=EN, archived at https://perma.cc/Z3HA-YH6M. 

132 Eszter Zalan, Hungary Rejects EU Offer to Take Refugees, EU OBSERVER (Sept. 11, 2015), 

https://euobserver.com/migration/130217, archived at https://perma.cc/K9ET-3P57. 
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The 120,000 persons who would be relocated are in addition to the 40,000 for whom relocation 

was already proposed in May 2015, for a total number of 160,000. The decision provides that 

66,000 persons will be relocated from Italy and Greece (15,600 from Italy and 50,400 from 

Greece). The remaining 54,000 persons will be relocated from Italy and Greece in the same 

proportion one year after the entry into force of the decision.133 The relocation would be carried 

out pursuant to a mandatory distribution scheme based on the following proportional criteria: 

40% on the size of the jurisdiction’s population, 40% on GDP, 10% on past acceptance of 

asylum applications, and 10% on the unemployment rate.134

Slovakia and Hungary filed court proceedings against the EU plan. On December 2, 2015, 

Slovakia initiated legal action before the CJEU.135 The Prime Minister of Slovakia, Robert Fico, 

said he wanted the CJEU to declare the EU’s mandatory quota invalid, characterizing the plan as 

“nonsensical and technically impossible.”136 Hungary filed a similar lawsuit.137 

The Commission noted that implementation of relocation moves very slowly. As of February 8, 

2016, only 218 people had been relocated from Greece, and 279 from Italy. Five Member States 

have not yet made any places available for relocation.138

C. Creation of a Permanent Relocation Mechanism for All EU Member States 

The Commission has proposed a crisis relocation mechanism designed to apply in emergency 

situations when a Member State encounters a migration crisis. The Commission will define 

when a particular situation meets the criteria for activation of the mechanism, based on the 

number of asylum applications any Member State has received during the past six months and on 

the number of irregular crossings of refugees into national territory during the same period. The 

mechanism will take under consideration the needs of asylum seekers, their family situation, and 

their skills.139 

 

133 Id. 

134 For a chart indicating the commitments of EU Members to accept refugees from Greece and Italy, see the Annex 

to the Communication on the State of Play, COM (2016) 85 final, supra note 119. 

135 Case C-643/15, Slovak Republic v. Council of the European Union (Eur. Ct. J., Dec. 2, 2015), http://curia.europa. 

eu/juris/document/document.jsf;jsessionid=9ea7d0f130d5bfe9bd2434cc41a2bccaf8e2e6e72e1f.e34KaxiLc3eQc40L

axqMbN4OchaKe0?text=&docid=173998&pageIndex=0&doclang=en&mode=doc&dir=&occ=first&cid=955203, 

archived at https://perma.cc/FAT5-P4HJ. 

136 Hans von der Burchard & Jacopo Barigazzi, Slovakia Files Lawsuit Against EU’s Refugee Relocation, 

POLITICO (Dec. 2, 2015), http://www.politico.eu/article/slovakia-files-lawsuit-against-eus-refugee-relocationseptember, archived at https://perma.cc/4VDA-HBPV. 

137 Case C-647/15, Hungary v. Council of the European Union (Eur. Ct. J., Dec. 3, 2015), http://curia.europa.eu/ 

juris/ document/document.jsf;jsessionid=9ea7d0f130d5bfe9bd2434cc41a2bccaf8e2e6e72e1f.e34KaxiLc3eQc40Lax 

qMbN4OchaKe0?text=&docid=174029&pageIndex=0&doclang=en&mode=doc&dir=&occ=first&cid=955203,

archived at https://perma.cc/8ENF-Z9LM. 

138 Communication on the State of Play, COM (2016) 85 final, supra note 119, at 11. 

139 Proposal for a Regulation of the European Parliament and of the Council, Establishing a Crisis Relocation 

Mechanism and Amending Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 

2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an 

Application for International Protection Lodged in One of the Member States by a Third Country National or a 
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D. Adoption of a Common European List of Safe Countries of Origin 

The Commission plans to introduce a regulation on a common list of safe countries of origin to 

enable a faster application process for requests for asylum that originate from such countries.140 

The safe countries of origin concept means that asylum seekers from such countries will be 

subject to accelerated border procedures and their asylum requests will be denied. The criteria 

for establishing a country as “safe” include ratification of major human rights treaties; 

conformity with the Copenhagen political criteria, such as being a democracy and in compliance 

with the rule of law; noninvolvement in armed conflict; and nonapplication of torture or 

degrading treatment as forms of punishment. The Commission has recognized the countries of 

Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Kosovo, 

Montenegro, Serbia, and Turkey as safe countries.141

Currently, EU law does not contain an EU common list of safe countries of origin. Many of the 

Member States have established their own list of countries considered to be safe.142

E. Formulation of a Return Policy 

The current EU system concerning the return of migrants who illegally stay in the EU to their 

countries of origin has been described by the European Commission as ineffective. The 

Commission estimates that in 2014, less than 40% of the total number of return decisions issued 

by Member States was enforced. In September 2015, the Commission presented an EU Action 

Plan on Return in an effort to address the underlying reasons for this, including ways to increase 

the acceptance of the standard travel document for the expulsion of third-country nationals.143 

The Commission has found that the lack of valid travel documents issued by the country of 

destination of the returnee is the main barrier to successful return. Currently, a substitute travel 

document (laisez passer) for return purposes is being used by the Member States; however, it is 

 Stateless Person, COM (2015) 450 final (Sept. 9, 2015), http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/european-agenda-migration/proposal-implementation-package/docs/proposal_for_regulation_ 

of_ep_and_council_establishing_a_crisis_relocation_mechanism_en.pdf, archived at https://perma.cc/2EUK-T7PV. 

140 Regulation of the European Parliament and of the Council, Establishing an EU Common List of Safe Countries 

of Origin for the Purposes of Directive 2013/32/EU of the European Parliament and of the Council on Common 

Procedures for Granting and Withdrawing International Protection, and Amending Directive 2013/32/EU, COM 

(2015) 452 final, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2015:0452:FIN, archived at 

https://perma.cc/M6X6-6NG3. 

141 An EU ‘Safe Countries of Origin’ List, EUROPEAN COMMISSION, http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/european-agenda-migration/background-information/docs/2_eu_safe_countries_of_origin_en.pdf (last 

visited Feb. 29, 2016), archived at https://perma.cc/7YJG-DEHK. 

142 Id. 

143 Communication from the European Commission to the European Parliament and to the Council, EU Action Plan 

on Return, COM (2015) 453 final (Sept. 9, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/ 

european-agenda-migration/proposal-implementation-package/docs/communication_from_the_ec_to_ep_and_ 

council_-_eu_action_plan_on_return_en.pdf, archived at https://perma.cc/T2PL-ZKAD. 
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not being accepted by destination countries, due to its unsatisfactory security features 

and standards.144 

On December 15, 2015, the Commission, in order to facilitate the return of those illegally present 

in the EU, proposed a new Regulation on a European travel document to effectuate the return of 

third-country nationals who stay illegally in the EU.145 The proposal aims to harmonize the 

format and technical specifications of a European travel document.146 The travel document will 

be in the language of the issuing Member State and translated into English and French.147 

The Commission recommends that any readmission agreement concluded between the EU and 

third countries or bilateral agreements between the Member States and third countries should 

include in their clauses the recognition of the European travel document for return. 

The Commission has drafted a common Return Handbook,148 which clarifies the procedures and 

standards that must be followed by national authorities responsible for return, such as the police, 

border guards, migration authorities, and staff of detention facilities and monitoring bodies. 

F. Agreement with Turkey 

In November 2015, the European Union and Turkey agreed on an Action Plan to increase 

cooperation and coordinate of their actions on the refugee crisis, and to reduce the huge flow of 

immigrants who enter the EU through Turkey. The Action Plan contains short- and long-term 

measures to tackle the refugee crisis. Its twin objectives are to support the refugees and their 

host communities in Turkey and to boost cooperation to reduce migratory flows from Turkey.149 

The European Commission announced €3 billion in assistance would be provided Turkey to 

 

144 Id. at 2. 

145 Commission Proposal for a Regulation of the European Parliament and of the Council on a European Travel 

Document for the Return of Illegally Staying Third-country Nationals, COM (2015) 668 final (Dec. 15, 2015), 

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/securing-eu-borders/legal-documents/docs/ 

european_travel_document_for_the_return_of_illegally_staying_third-country_nationals_en.pdf, archived at

https://perma.cc/7X47-96V7. 

146 Id. art. 3. 

147 Id. 

148 Commission Recommendation Establishing a Common “Return Handbook” to be Used by Member States’ 

Competent Authorities When Carrying out Return Related Tasks, COM (2015) 6250 final (Oct. 1, 2015), 

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementationpackage/docs/commission_recommendation_establishing_a_return_handbook_for_member_states_competent_auth

orities_to_deal_with_return_related_tasks_en.pdf, archived at https://perma.cc/6F4F-5XMW; Annex: Return 

Handbook, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposalimplementation-package/docs/return_handbook_en.pdf, archived at https://perma.cc/8YXX-VEWN. 

149 Communication on the State of Play, COM (2016) 85 final, supra note 119, Annex 1, http://ec.europa.eu/dgs/ 

home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/ 

managing_the_refugee_crisis_state_of_play_20160210_annex_01_en.pdf, archived at https://perma.cc/ZXJ3-

W6LG. 
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deliver support to migrants in Turkey, and a legal framework, called the “Refugee Facility for 

Turkey,” would be established to coordinate and streamline the actions being financed.150

 

To date Turkey has provided a significant amount of humanitarian assistance, amounting to 

nearly €6.7 billion (about US$7.65 billion), to refugees coming from Syria and Iraq. The 

number of asylum seekers who have reached Turkey is now about 2.58 million and Turkey has 

given them temporary status.151 The EU continues to provide immediate assistance in Turkey. 

Since the beginning of the crisis, an overall amount of €365 million from the EU budget has been 

provided to directly support Syrian refugees and Turkish host communities.152

The EU has assumed a number of obligations, such as 

 providing an additional €1 billion (about US$1.14 billion) for the period 2015–2016 to help 

Turkey handle the challenges it faces, with certain activities being given high priority, such 

as humanitarian assistance; offers of legal, administrative, and psychological support; and 

measures related to the employment and education of refugees; 

 providing Turkey additional funds from the EU Regional Trust Fund for Syria and Iraq; 

 continuing assistance to Syrian refugees who are in Lebanon, Jordan, and Iraq, and to Syrians 

who are internally displaced, in order to eliminate the “push factors,” such as internal 

conflict, poverty, and civil war that force people to leave their countries; and 

 supporting resettlement schemes and programs in the EU and its Member States, with the 

objective of assisting refugees located in Turkey to enter the EU in a regulated and 

efficient way.153

 

For its part, Turkey has assumed a number of responsibilities, such as 

 implementing its laws on foreigners and those in need of international protection through the 

adoption of regulatory legislation; 

 ensuring that migrants are registered and given appropriate documents; 

 ensuring that asylum requests, once they are recognized, are completed within a short 

time; and 

 

150 Press Release, European Commission, EU-Turkey Cooperation: A €3 Billion Refugee Facility for Turkey (Nov. 

24, 2015), http://europa.eu/rapid/press-release_IP-15-6162_en.htm, archived at https://perma.cc/G877-3EPB. 

151 For statistical data of asylum seekers reaching EU from Turkey, see Annex 1 to the Communication from the 

Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority 

Actions under the European Agenda on Migration EU-Turkey Joint Action Plan – Implementation Report, EUTurkey Joint Action Plan: Implementation Report, Period: 17 December 2015 to 31 January 2016, COM (2016) 85 

final (Feb. 10, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/ 

proposal-implementation-package/docs/managing_the_refugee_crisis_state_of_play_20160210_annex_01_en.pdf, 

archived at https://perma.cc/6V3N-PWRS. 

152 Id. at 5. 

153 Id. at 8. 
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 implementing policies to assist refugees to integrate into society and to promptly identify and 

provide care for vulnerable people, such as children or victims of trafficking.154

The two parties have also agreed to apply measures towards a visa liberalization dialogue, and 

the readmission agreement between Turkey and the EU. The visa liberalization dialogue aims to 

work towards the elimination of the visa obligations currently imposed on Turkish citizens 

traveling to the Schengen area for short-term visits.155 The visa-free regime with Turkey 

presupposes, inter alia, the full implementation of the readmission agreement, which entered into 

force on October 1, 2014, and provides for the return of each party’s nationals who reside 

illegally in the EU or Turkey to their respective countries. 

On February 3, 2016, the Member States agreed on how to finance the €3 billion EU refugee 

facility for Turkey, with €1 billion of this amount to be financed from the EU budget and the 

remaining €2 billion by contributions from the Member States according to their share in the EU 

gross national income (GNI).156 This agreement puts into practice the November 2015 

commitment to provide €3 billion additional resources to assist Turkey in addressing the 

immediate humanitarian and development needs of refugees and their host communities, 

including food, health services, and education.157

In March 2016, because the number of illegal migrants reaching Greece from Turkey has 

remained very high, the European Council and the Prime Minister of Turkey held discussions 

regarding the following proposals: 

 The return of all new illegal migrants coming to the Greek islands from Turkey; 

 For every Syrian readmitted by Turkey from the Greek islands, resettling another Syrian 

from Turkey to the EU Member States; 

 Accelerating the implementation of the visa liberalization roadmap with all Member States 

with a view to lifting the visa requirements for Turkish citizens at the latest by the end of 

June 2016; 

 

 

154 Id. at 6. 

155 Press Release, Delegation of the European Commission to Turkey, Cecilia Malmström Signs the Readmission 

Agreement and Launches the Visa Liberalisation Dialogue with Turkey, http://www.avrupa.info.tr/resourcecentre/news-archive/news-single-view/article/cecilia-malmstroem-signs-the-readmission-agreement-and-launchesthe-visa-liberalisation-dialogue-wit.html (last visited Feb. 29, 2016), archived at https://perma.cc/WX39-6VQ7. 

156 Press Release, Council of the EU, Refugee Facility for Turkey: Member States Agree on Details of Financing 

(Feb. 3, 2016), http://www.consilium.europa.eu/en/press/press-releases/2016/02/03-refugee-facility-for-turkey, 

archived at https://perma.cc/V47R-D97X. 

157 Id. 
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 Facilitating earlier disbursement of the initially allocated 3 billion euros and decide on 

additional funding for the Refugee Facility for Syrians; and 

 Opening new chapters in the accession negotiations as soon as possible.158

G. New European Border and Coast Guard 

1. Proposal for a Regulation to Establish a European Border and Coast Guard 

Since there is no EU Coast Guard, EU Members are in charge of managing their external 

borders, which also constitute the EU’s borders based on the Schengen Borders Code. The EU 

provides financial support to such Member States. In 2004, FRONTEX was established to 

promote cooperation and coordination between the national border guard authorities through 

joint operations. 

On December 15, 2015, the European Commission adopted a proposal for a Regulation to 

Establish a European Border and Coast Guard (EBCG), designed to ensure shared European 

management of the external borders of the European Union. The proposal must be approved by 

the European Parliament and the Council of the European Union. The proposal would establish 

a European Border and Coast Guard Agency (EBCGA), which would replace FRONTEX and 

have increased powers. The EBCGA would share responsibility with national authorities 

responsible for border management; the EBCGA and the national border authorities together 

would constitute the EBCG.159 The Commission was prompted to take swift action due to the 

refugee crisis, which brought to the forefront the need to improve the security of the EU’s 

external borders. The migrant crisis also demonstrated that FRONTEX, which had a limited 

mandate in supporting the Member States to secure their external borders, has inadequate staff 

and equipment and lacks the authority to conduct border management operations and search-andrescue efforts. 

The legal grounds for the proposal are article 77, paragraph 2(b) and (d), and article 79, 

paragraph 2(c), of the Treaty on the Functioning of the European Union. Article 77 grants 

competence to the EU to adopt legislation on a “gradual introduction of an integrated 

management system for external borders,” and article 79 authorizes the EU to enact legislation 

concerning the repatriation of third-country nationals residing illegally within the EU.160

 

 

158 Statement of the EU Heads of State or Government, 07/03/2016, EUROPEAN COUNCIL (Mar. 7, 2016), 

http://www.consilium.europa.eu/en/meetings/international-summit/2016/03/07/, archived at https://perma.cc/VSP2-

S39R. 

159 Commission Proposal for a Regulation of the European Parliament and of the Council on the European Border 

and Coast Guard and Repealing Regulation (EC) No. 2007/2004, Regulation (EC) No. 863/2007 and Council 

Decision 2005/267/EC, COM (2015) 671 final (Dec. 15, 2015), http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/securing-eu-borders/legal-documents/docs/ regulation_on_the_european_border_and_coast_ 

guard_en.pdf, archived at https://perma.cc/YFE4-JWM9. 

160 TFEU, supra note 2. 
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2. Powers of the Proposed EBCG

Under the proposal, the EU and the Member States would share responsibility in securing the 

external borders of the EU. The EBCG would unite the EBCGA and the Member States’ 

authorities responsible for border management, including coast guards. National authorities 

would continue to exercise the day-to-day management of their respective external borders. 

The EBCGA’s enhanced features would include the following elements: 

 The right to intervene. Member States would be able to request joint operations, rapid border 

interventions, and deployment of the EBCG Teams to support national authorities when a 

Member State experiences an influx of migrants that endangers the Schengen area. In such a 

case, especially when a Member State’s action is not sufficient to handle the crisis, the 

Commission would have the authority to adopt an implementing decision on whether a 

situation at an external border requires urgent action at the EU level. Based on this decision, 

the EBCGA would be able to intervene and deploy EBCG Teams to undertake 

necessary measures. 

 A Monitoring and Risk Analysis Center. The proposed Center would be authorized to carry 

out mandatory vulnerability assessments concerning the capacities of the Member States to 

face current or upcoming challenges at their external borders. 

 A European Return Office. The proposed European Return Office would enable the 

deployment of European Return Intervention Teams composed of escorts, monitors, and 

return specialists to return illegally present third-country nationals. These nationals would be 

given a uniform European travel document for return. The Office would also establish and 

deploy EBCG Teams for joint operations and rapid border interventions, as needed. 

3. Funding 

To enable the EBCGA to complete its tasks, its budget would be gradually increased from the 

€143 million originally planned for FRONTEX in 2015 to €238 million in 2016, €281 million in 

2017, and €322 million (about US$350 million) by 2020. The Agency would gradually increase 

its staff members from 402 in 2016 to 1,000 by 2020.161 

4. Member State Perspectives 

The right to intervene is a point of contention between a number of EU Members and the 

Commission, especially those Members whose borders form the external borders of the EU, such 

as Cyprus, Greece, Hungary, Italy, and Poland. These countries want to ensure that intervention 

by the proposed EBCGA would be possible only with the consent of the affected Member 

 

161 Press Release, European Commission, European Agenda on Migration: Securing Europe’s External Borders 

(Dec. 15, 2015), http://europa.eu/rapid/press-release_MEMO-15-6332_en.htm, archived at https://perma.cc/GA2JQL4Z. 
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States.162 A Greek Minister stated that while Greece is supportive of a common European action 

and of changing FRONTEX’s mandate, it wants the EBCGA to take complete charge of 

migration and refugee flows.163 As the proposal goes through the legislative process, discussions 

are likely to be contentious. 

 

162 Sarantis Michalopoulos, Greek Minister: New EU Border Force Should Assume Full Control of Refugees, 

EURACTIV.COM (Dec. 18, 2015), http://www.euractiv.com/section/justice-home-affairs/interview/greek-ministernew-eu-border-force-should-assume-full-control-of-refugees/, archived at https://perma.cc/P8EC-36DX. 

163 Id. 
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Finland 

Elin Hofverberg 

Foreign Law Research Consultant

SUMMARY Finland accepts “quota refugees” through a relocation program administered by the 

UNHCR as well as asylum applications from individuals arriving at its borders. Persons 

who seek asylum status receive cash benefits, schooling, and health care provided by the 

government. Persons who are granted asylum receive social services from the local 

municipality where they live. 

 An asylum seeker can gain Finnish citizenship after four years as a continuous resident 

followed by five years as a permanent resident of Finland. Before attaining continuous 

residency an asylum seeker receives temporary residency of varying duration. 

 By the fall of 2015 the number of asylum seekers in Finland had increased nearly tenfold 

from 2014 levels, from 3,600 for all of 2014 to over 30,000 between January and 

November of 2015. Because the largest increase was seen among Iraqi citizens, the 

Finnish government was prompted to negotiate a repatriation agreement with Iraq. 

I. General Background 

Asylum is regulated in Finland’s Aliens Act1 and in special legislation that prescribes how 

asylum seekers should be treated while they await a decision.2

A. Categories of Asylum Seekers 

1. Refugees 

Finland has acceded to the 1951 Geneva Convention Relating to the Status of Refugees (and its 

protocol). The Convention defines a refugee as someone who, “owing to 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 to, 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 or, owing to such fear, is unwilling to return to it.”3

 The country receives quota 

 

1

 UTLÄNNINGSLAG [ALIENS ACT], FINLANDS FÖRFATTNINGSSAMLING [FFS] 30.4.2004/301, 

http://www.finlex.fi/sv/laki/ajantasa/2004/20040301, archived at https://perma.cc/WG4T-GCKB. 

2

 LAG OM MOTTAGANDE AV PERSONER SOM SÖKER INTERNATIONELLT SKYDD OCH OM IDENTIFIERING AV OCH HJÄLP 

TILL OFFER FÖR MÄNNISKOHANDEL [ACT ON THE RECEPTION OF PERSONS WHO SEEK INTERNATIONAL PROTECTION 

AND ON IDENTIFICATION OF AND HELP FOR VICTIMS OF HUMAN TRAFFICKING], FFS 17.6.2011/746, 

http://www.finlex.fi/sv/laki/ajantasa/2011/20110746, archived at https://perma.cc/DKZ7-NDUA. 

3

 Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, 

http://www.unhcr.org/3b66c2aa10.pdf, archived at http://perma.cc/K3X4-FA37; Protocol Relating to the Status of 

Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, http://www.unhcr.org/4dac37d79.html, archived at perma.cc/6YUE-
Refugee Law and Policy: Finland 

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refugees (a set number of refugees as decided by Parliament)4

 for relocation through the UN 

High Commissioner for Refugees (UNHCR) system.5

 Historically, Finland has accepted some 

750 quota refugees per year through the UNHCR program.6 In 2014 and 2015 Finland 

welcomed 1,050 quota refugees per year.7

 The Finnish Parliament decides how many quota 

refugees Finland will accept annually.8

 Quota refugees receive nonpermanent, so-called 

“continuous” resident permits of four years, which can be extended.9 In addition to receiving 

quota refugees, the country provides for receiving persons requesting asylum upon arriving in 

Finland.10

2. Persons in Need of Subsidiary Protection

In addition to UNHCR refugees, Finland also grants asylum to persons seeking subsidiary 

protective status (alternative protection).11 A person in need of subsidiary protective status is 

defined as a person who “is subject to a real risk of serious injury if he or she is sent back to his 

or her home country or country of permanent domicile, and he or she cannot or because of that 

risk does not want to avail him or herself of that country’s protection.”12 “Serious injury” is 

defined as (1) the death penalty or execution, (2) torture or other treatment or punishment that is 

inhumane or degrades human life, or (3) serious or personal risk that stems from indiscriminate 

violence in connection with an international or internal armed conflict.13 

An asylum seeker must be refused permanent residence under subsidiary protection if there is a 

well-founded reason to suspect that he or she has committed “[c]rimes against peace, war crimes 

or crimes against humanity as defined in international conventions; a serious crime; or an act that 

violates the purposes and principals of the United Nations.”14 

 7NU8. However, Finland provides special most favorable treatment for Nordic Citizens. See Convention Relating 

to the Status of Refugees, supra, ch. 2, Declarations and Reservations: Finland, http://www.unhcr.org/3d9abe 

177.html, archived at perma.cc/V7Q9-2KGU. 

4 Kvotflyktingar, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, http://www.migri.fi/ asyl_i_finland/kvotflyktingar

(last visited Dec. 15, 2015), archived at https://perma.cc/R73A-CY5W. 

5

 87 § ALIENS ACT. 

6 Kvotflyktingar, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, supra note 4. 

7 Id. 

8 Id. 

9 Schematisk bild – Valet av Kvotflyktingar, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET (Jan. 29, 2013), 

http://www.migri.fi/download/15969_kiintiopakolaiset_sve.pdf?bee50e0652b8d288, archived at 

https://perma.cc/QW4N-RECK. 

10 See section II.A.2, infra. 

11 88 § ALIENS ACT. 

12 Id. 

13 Id. 

14 Id. 
Refugee Law and Policy: Finland 

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Persons may receive residence permits because of a need for subsidiary protection despite not 

meeting the criteria to be considered bona fide refugees.15 

3. Persons in Need of Humanitarian Protection 

Asylum seekers who do not qualify for asylum as refugees or persons in need of subsidiary 

protection may still receive asylum in Finland on the grounds of humanitarian protection.16

Humanitarian protection is given to persons who do not qualify as refugees or persons in need of 

alternative protection, but who cannot return to their home country due to an environmental 

catastrophe, a violent conflict, or a serious situation threatening human rights.17 

B. Ground for Refusing Asylum 

All asylum categories are subject to limitations. Asylum cannot be granted in any category to a 

person who has committed the following crimes:18 war crimes, crimes against peace, and crimes 

against humanity or crimes that violate the purpose of the UN Conventions.19 Finland also 

refuses refugee status to anyone who can be helped by a UN agency other than the UNHCR.20

In addition, a person who has a legal residence in a safe place will not be granted asylum, and an 

asylum seeker must seek refuge within his or her own country if that country has safe areas.21 

Finland does not have a pre-approved list of save countries; each case is considered on its own. 

For example, areas of Afghanistan are now considered generally safe for people seeking 

alternative protection as of December 8, 2015.22 

Although a person might not qualify for protective status because he or she has committed 

crimes in Finland, it may still be impossible to deport him or her.23 In certain instances 

deportation violates the UN Convention, at other times Finnish law.24 Regardless, such an 

individual only receives a residence permit, which is valid for one year at a time; refugee status 

 

15 Id. 

16 Id. 88a §. 

17 Id. 

18 Id. 87, 88, 88a §§. 

19 Id. 88a §. 

20 Id. 87§. 

21 Id. 88e §. 

22 Press Release, Maahanmuuttovirasto/Migrationsverket, Alla personer från södra och östra Afghanistan beviljas 

inte längre alternativt skydd (Dec. 8, 2015), http://www.migri.fi/for_media/meddelanden/pressmeddelanden/ 

pressmeddelanden/1/0/alla_personer_fran_sodra_och_ostra_afghanistan_beviljas_inte_langre_alternativt_skydd_64

227, archived at https://perma.cc/M2EW-VENK. 

23 Press Release, Maahanmuuttovirasto/Migrationsverket, Brottslingar avlägsnas alltid ur landet då lagen tillåter 

detta (Dec. 7, 2015), http://www.migri.fi/for_media/meddelanden/pressmeddelanden/pressmeddelanden/1/0/ 

brottslingar_avlagsnas_alltid_ur_landet_da_lagen_tillater_detta_64205, archived at https://perma.cc/S3VC-7BEQ. 

24 Id. 
Refugee Law and Policy: Finland 

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can later be reexamined and the person deported when there is less of a risk associated with 

sending the person back to his or her country of origin.25

II. Application Process 

Asylum can only be sought in person in Finland or through the UNHCR quota refugee system. 

A. Screening Procedures 

1. Screening of Quota Refugees 

The UNHCR screens and recommends refugees for relocation to Finland, Finland receives 

documentation, and the UNHCR allows Finnish representatives to interview the refugees at 

UNHCR refugee camps prior to accepting them.26 The Finnish Security Police has a role in 

reviewing the documents and the identities of the intended refugees.27 Emergency refugees who, 

as determined by the UNHCR, are in dire need of relocation are not interviewed prior to arriving 

in Finland.28 

2. Screening of Asylum Seekers at the Border 

Asylum seekers arriving in Finland are interviewed by the police and have their fingerprints 

taken.29 Thereafter an application is lodged and the asylum seeker can either find housing on his 

or her own,30 or is assigned housing by the state.31 

The Migration Agency first determines if Finland is the correct country to hear an asylum 

application from the individual by researching whether that person should be sent back to 

another European Union (EU) Member State under the Dublin Regulations or if the person has a 

legal residence in another safe country.32 Once the Migration Agency determines that it should 

hear the application an interview takes place, after which an analysis of the totality of the 

circumstances is carried out and a decision made.33 In early 2015 (before the current migration 

crisis) the average processing time for asylum applications was 157 days.34 

 

25 Id. 

26 Schematisk bild – Valet av Kvotflyktingar, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, supra note 9. 

27 Id. 

28 Id. 

29 Ansökan om asyl, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, http://www.migri.fi/asyl_i_finland/ 

ansokan_om_asyl (last visited Dec. 15, 2015), archived at https://perma.cc/R99A-F9XN. 

30 Id. 

31 Id. 

32 Id. 

33 Id. 

34 Sökanden får en uppskattning av behandlingstiden för en asylansökan vid asylsamtalet,

MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET (May 5, 2015), http://www.migri.fi/tjanster/behandlingstider/ 
Refugee Law and Policy: Finland 

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B. Determining Whether a Person Is a Bona Fide Asylum Seeker 

A bona fide asylum seeker is someone who meets the criteria of refugee under the Convention 

Relating to the Status of Refugees.35 The UNHCR makes a determination concerning all 

refugees received under the UNHCR relocation program.36 Government employees at the 

Finnish Immigration Service make the determination of refugee status for all other asylum 

seekers. 

Finland carries out background checks on all asylum seekers.37 It also analyses whether the 

asylum seeker could have sought refuge within his or her home country.38 

Finland also carries out medical testing to determine the age of asylum seekers.39 Consent is 

required but refusal of consent results in the person automatically being considered eighteen 

years of age or older.40 

C. Large Groups 

Finnish law allows for special treatment of asylum seekers when a mass immigration is taking 

place.41 This includes housing asylum seekers in special housing centers as well as allowing the 

government ministers to issue regulations directing where (in what municipalities) such housing 

should be set up.42

D. Family Reunification 

A person must have been granted asylum before he or she can apply for family reunification.43 

Family reunification is possible for legal guardians, spouses, and children under the age of 

 behandlingstider_internationellt_skydd/1/0/sokanden_far_en_uppskattning_av_behandlingstiden_for_en_asylansoka

n_vid_asylsamtalet_54132, archived at https://perma.cc/HQW3-U863. 

35 Convention Relating to the Status of Refugees art. 1(A)(2), supra note 3. 

36 Schematisk bild – Valet av Kvotflyktingar, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, supra note 9. 

37 Information for Asylum Seekers, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET (last visited Jan. 7, 2015), 

http://www.migri.fi/download/16435_tietoa_tphakijalle_eng.pdf?c52056de9bf5d288, archived at 

https://perma.cc/QBE3-ZY37. 

38 Press Release, Maahanmuuttovirasto/Migrationsverket, supra note 22. 

39 6 a§ ALIENS ACT. 

40 Id. 

41 Id. 133 §. 

42 12 § ACT ON THE RECEPTION OF PERSONS WHO SEEK INTERNATIONAL PROTECTION AND ON IDENTIFICATION OF 

AND HELP FOR VICTIMS OF HUMAN TRAFFICKING, 17.6.2011/746, http://www.finlex.fi/sv/laki/ajantasa/2011/ 

20110746, archived at https://perma.cc/DKZ7-NDUA. 

43 Uppehållstillstånd för familjen kan ansökas först efter beslut om asylansökan, MAAHANMUUTTOVIRASTO/ 

MIGRATIONSVERKET (Nov. 2, 2015), http://www.migri.fi/tjanster/kundmeddelanden/1/0/uppehallstillstand_for_ 

familjen_kan_ansokas_forst_efter_beslut_om_asylansokan_63407, archived at https://perma.cc/CXA3-D3BQ. 
Refugee Law and Policy: Finland 

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eighteen.44 Family reunification is also possible in rare cases for other family members who are 

dependent on an asylum seeker who has been granted residence.45 Proof of financial capacity to 

care for one’s family members is not required for the reunification of immediate 

family members.46 

Family members of quota refugees (see Part I(A)(1), above) receive compensation for the cost of 

travel to Finland associated with bringing the family member to Finland.47 Family members of 

other groups who have received international protection in Finland do not receive any monetary 

help to facilitate family reunification.48 

Family reunification can be refused in cases where there is reason to believe that a person has 

received legal status by providing false information to the authorities.49

III. Benefits 

A. Monetary Benefits 

Asylum seekers arriving in Finland receive a monthly cash benefit.50 The benefit is meant to 

cover such things as the cost of clothing, minor health care expenses, and personal expenses such 

as telephone service.51 The amount is contingent on whether the asylum seeker receives free 

meals at the government-assigned housing.52 The amount is adjusted for inflation to keep 

benefits at the same level as it was in the base year of 2010.53 At that time singles received a 

monthly benefit of €85 if meals were received for free at their housing facility and €290 if no 

free meals were received;54 spouses received €70 each if meals were included and €245 if they 

were not;55 children received €55 if meals were included and €185 if they were not.56 For 2016, 

 

44 37, 114 §§ ALIENS ACT. 

45 Id. 115 §. 

46 Id. 114 §. 

47 Ersättning av resekostnader till en kvotflyktings familjemedlem, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, 

http://www.migri.fi/att_flytta_till_en_familjemedlem_i_finland/fyll_i_ansokan/familjemedlem_till_en_person_som

_beviljats_internationellt_skydd/ersattning_av_resekostnader_till_en_kvotflyktings_familjemedlem (last visited 

Dec. 22, 2015), archived at https://perma.cc/FTU7-A4FK. 

48 Id. 

49 36 § ALIENS ACT. 

50 19 § ACT ON THE RECEPTION OF PERSONS WHO SEEK INTERNATIONAL PROTECTION AND ON IDENTIFICATION OF 

AND HELP FOR VICTIMS OF HUMAN TRAFFICKING, 17.6.2011/746, http://www.finlex.fi/sv/laki/ajantasa/2011/ 

20110746, archived at https://perma.cc/DKZ7-NDUA. 

51 Id. 

52 Id. 20 §. 

53 Id. 22 §. 

54 Id. 20 §. 

55 Id. 
Refugee Law and Policy: Finland 

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asylum seekers will receive €314.91 (about US$340.31) or €92.30 (US$100.70) respectively for 

singles, €266.04 (about US$288.44)or €76.01 (US$82.45) for asylum seekers who share 

households, and €200.89 (about US$218.11) or €59.72 (US$64.83) for children living with 

their families.57 

In instances where the asylum seeker lives in a type of housing that provides for those things that 

the cash benefit is meant to cover (typically, special housing for unaccompanied minors) a 

smaller allowance is provided at a rate equivalent to US$48.86 for sixteen- and seventeen-yearolds and US$27.15 for unaccompanied minors under sixteen.58 The 2010 index amount (see 

above) is €25 per month.59

B. Social Services and Urgent Health Care 

Asylum seekers are entitled to social services60 and urgent health care.61 “Urgent health care” is 

defined as “immediate evaluation or treatment that cannot be postponed without the illness being 

worsened or the injury exacerbated and that applies to an acute illness, personal injury, 

deterioration of long term illness or disability,” and includes “dental, health care, substanceabuse care and psycho-social support.”62 

C. Schooling

Children who permanently reside in Finland are mandated to attend school starting the year they 

turn seven years old.63 Asylum-seeking children (both unaccompanied minors and minors 

arriving with their legal guardians) have a legal right to attend school free of charge.64 Schooling 

for persons who do not permanently reside in Finland may be carried out remotely.65 

 56 Id. In 2010, the exchange rate was €1 to US$0.697666. Historic Lookup, X-RATES.COM, http://www.xrates.com/historical/?from=USD&amount=1&date=2010-01-01, archived at https://perma.cc/D5JH-VGV2. 

57 Mottagningspenning, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, http://www.migri.fi/asyl_i_finland/ 

mottagningsverksamhet/mottagningspenning (last visited Dec. 15, 2015), archived at https://perma.cc/2XF8-8PJV. 

58 Id. 

59 21 § ACT ON THE RECEPTION OF PERSONS WHO SEEK INTERNATIONAL PROTECTION AND ON IDENTIFICATION OF 

AND HELP FOR VICTIMS OF HUMAN TRAFFICKING (equal to US$17.44, using an exchange rate of €1=US$0.697666). 

60 Id. 25 §. 

61 Id. 26 §. 

62 HÄSLO OCH SJUKVÅRDSLAG [HEALTH CARE ACT] (FFS 30.12.2010/1326), http://www.finlex.fi/sv/laki/ajantasa/ 

2010/20101326, archived at https://perma.cc/7AU7-5XJX (translation by author). 

63 25 § LAG OM GRUNDLÄGGANDE UTBILDNING [ACT ON ELEMENTARY SCHOOLING] FFS 21.8.1998/628, 

http://www.finlex.fi/sv/laki/ajantasa/1998/19980628#L8P46, archived at perma.cc/P48J-6ETG. 

64 Id. 46 §. 

65 Id. 
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IV. Path to Citizenship 

A. Residency Permits

Persons who are granted asylum receive either a temporary residence permit (one year for 

persons in need of humanitarian protection and four years for refugees and persons receiving 

subsidiary protection)66 or a continuous residence permit.67 Temporary residence permits for 

persons who seek international protection can be renewed if grounds for international protection 

still exist.68 A temporary residence permit can turn into a continuous residence permit. Once the 

asylum seeker has lived for four years in Finland under a continuous residence permit, he or she 

can apply for a permanent residence permit.69 

B. Citizenship 

Citizenship can be acquired after five years of uninterrupted permanent residence, or, if there is 

an interruption in residence, seven years of residence after the person is fifteen.70 Applicants 

must be eighteen years of age, not have committed an offense or crime for which the penalty 

exceeds that of a disciplinary fine (ordningsbot), and reliably account for their income.71 

Special rules require that refugees only need to have lived four years continuously (or six years 

in total after the age of fifteen of which the last two must have been continuous) in Finland as 

counted from the day of their asylum application to qualify for citizenship.72 

In addition, applicants must speak Finnish or Swedish, or Swedish or Finnish sign language.73 

Language abilities are either tested or proven through successful completion of studies carried 

out in Finnish or Swedish.74 Language tests are waived for persons who have received asylum 

and are more than sixty-five years old.75

 

66 53 § ALIENS ACT. 

67 Id. 49, 112, 113 §§. 

68 Id. 54 §. 

69 Id. 56 §. 

70 13 § MEDBORGARSKAPSLAG [FINNISH CITIZENSHIP ACT], http://www.finlex.fi/sv/laki/ajantasa/2004/20030359, 

archived at https://perma.cc/EVP7-B3TP, overview in English at MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, 

FACT SHEET: FINLAND’S NATIONALITY ACT (Dec. 2013), http://www.migri.fi/download/ 16429_Suomen_ 

kansalaisuus_eng.pdf?d367b8f351b8d288, archived at https://perma.cc/UR3A-6WS3. 

71 13 § FINNISH CITIZENSHIP ACT. 

72 Id. 20 §. 

73 Id. 

74 Id. 17 §. 

75 18b §. 
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Applications for Finnish citizenship increased by more than 30% in 2014.76 

Children of parents who have both been granted asylum receive Finnish citizenship at birth.77

V. Monitoring by Police and Restrictions on Travel 

A. Reporting Requirements and Police Access to Information 

When asylum seekers arrive at the Finnish border they must first report their asylum-seeker 

status with the police or border control.78 The police take asylum seekers’ fingerprints and 

identification information and register them in their systems.79 Thereafter the migration 

authorities assign asylum seekers temporary housing.80 During the review of an asylum 

application the Finnish migration authority (Finnish Immigration Service) collects information 

about the applicant. The Finnish Security Police are allowed to participate in the final 

discussions of a case, if needed because of national security interests.81 In all cases the police 

investigate the truthfulness of all assertions made by the applicants during the 

application process. 82

The police, Finnish Immigration Service, and customs agencies have a right to receive classified 

information on asylum seekers who are unaccompanied minors.83 Asylum seekers can be 

required to report to the police and the Finnish Immigration Service.84 Asylum seekers may also 

be confined if needed to ascertain their identity.85 The surveillance of asylum seekers is 

regulated by law and must be proportional to the purpose of the surveillance.86 

An asylum seeker may receive an identification card that specifies that the holder has sought 

asylum in Finland.87 Such identification cards include the asylum seeker’s name, birthdate, and 

 

76 Fortsatt rusningstid för ansökningar om medborgarskap, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET (July 1, 

2015), http://www.migri.fi/tjanster/kundmeddelanden/meddelanden_medborgarskap/1/0/fortsatt_rusningstid_ 

for_ansokningar_om_medborgarskap_60960, archived at https://perma.cc/CV7F-MZC9. 

77 9 § FINNISH CITIZENSHIP ACT. 

78 95 § ALIENS ACT. 

79 Applying for Asylum, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, http://www.migri.fi/asylum_in_ 

finland/applying_for_asylum (last visited Jan. 5, 2016), archived at https://perma.cc/6LBB-2PZQ. 

80 Id. 

81 97 § ALIENS ACT. 

82 Id. 

83 Id. 105 §. 

84 Id. 118 §. 

85 Id. 121 §. 

86 Id. 129a §. 

87 Id. 96 §. 
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citizenship, along with a picture and information regarding whether the asylum seeker has been 

able to prove his or her identity.88

B. Travel Restrictions 

An asylum seeker must surrender his or her travel documents to the Finnish Immigration Service 

before receiving travel documents indicating his or her status as a refugee.89 Individuals who 

have been granted asylum are allowed to travel within the Schengen Area for a total of ninety 

days during a 180-day period.90 They must carry their asylum documentation, however.91 

Persons with permanent residence permits are allowed to travel for a total of six months each 

year without losing their status as permanent residents.92

Finland keeps a registry of all aliens in the country, including asylum seekers and refugees, and 

tracks the travel of all aliens.93 

VI. Role of Municipalities

Finnish municipalities have a right to self-governance that is regulated in the Finnish 

Constitution.94 Prior to the refugee crisis of 2015 the Finnish Immigration Service had to consult 

with the municipal leadership before placing an asylum center in a community. As of September 

2015 such inquiries are only made if the asylum center is to be run by municipal agencies or in 

municipal facilities.95 A municipality must still be notified before the housing of asylum seekers 

is initiated within the municipality.96

88 Id. 

89 Id. 137 §. 

90 Att resa när du har ett uppehållstillstånd, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, http://www.migri.fi/ 

asyl_i_finland/att_resa_nar_du_har_ett_uppehallstillstand (last visited Dec. 22, 2015), archived at 

https://perma.cc/Q8VK-WN3A. 

91 Id. 

92 Id. 

93 Register of Aliens, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET, http://www.migri.fi/about_us/register_ 

of_aliens (last visited Jan. 6, 2015) archived at https://perma.cc/H5WK-EBQL. 

94 121 § FINLANDS GRUNDLAG [FINNISH CONSTITUTION] (FFS 11.6.1999/731), http://www.finlex.fi/sv/laki/ 

ajantasa/1999/19990731, archived at https://perma.cc/EF77-762V. 

95 Press Release, Maahanmuuttovirasto/Migrationsverket, I fortsättningen utreds kommunernas ståndpunkt endast 

om en planerad förläggning ska inrättas i kommunens lokaler eller drivas av kommunen (Sept. 7, 2015), 

http://www.migri.fi/for_media/meddelanden/pressmeddelanden/pressmeddelanden/1/0/i_fortsattningen_utreds_kom

munernas_standpunkt_endast_om_en_planerad_forlaggning_ska_inrattas_i_kommunens_lokaler_eller_drivas_av_k

ommunen_62314, archived at https://perma.cc/823E-V3YC. 

96 Id. 
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Social services such as health care and financial support to citizens and persons with temporary 

or permanent residence in Finland are provided for and financed by the municipality in which the 

recipient lives.97 

VII. Response to Current Refugee Crisis 

In the fall of 2015 Finland saw a steep increase in asylum seekers, primarily from Iraq. As of 

November 20, 2015, Finland had received 30,000 asylum applications for the year, of which 

19,000 were from Iraqi citizens.98 This compared 3,600 asylum applications in 2014,99 of which 

800 where Iraqi citizens.100 

As a result of the increase in asylum applications, especially by Iraqi citizens, Finland has started 

negotiations for a return agreement with Iraq.101 Such an agreement had previously not been in 

place. Moreover, Finland has revised its policies on Iraq under which connection to a certain 

region is no longer enough to qualify for asylum—each person must show a personal risk of 

persecution or violence.102 

In addition Finland is revising its asylum provisions on humanitarian protection to better reflect 

EU standards.103 

The Finnish Security Intelligence Service reports that extremism, including both extremist 

Islamist and anti-immigration hate crimes, has increased following the rapid influx of 

asylum seekers.104

 

97 See LAG OM HEMKOMMUN [ACT ON HOME MUNICIPALITY] (FFS 11.3.1994/201), http://www.finlex.fi/ 

sv/laki/ajantasa/1994/19940201, archived at https://perma.cc/GF36-D4GB; HEALTH CARE ACT (FFS 

30.12.2010/1326), http://www.finlex.fi/sv/laki/ajantasa/2010/20101326, archived at https://perma.cc/7AU7-5XJX. 

98 Asylsökanden 1.1-30.11.2015, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET (Dec. 8, 2015), 

http://www.migri.fi/download/64264_SV_tp-hakijat_tammi_marras_2015.pdf?88ff00de8604d388, archived at 

https://perma.cc/X65V-5YF6. 

99 Asylsökanden 1.1-31.12.2014, MAAHANMUUTTOVIRASTO/MIGRATIONSVERKET (Jan. 12, 2015), 

http://www.migri.fi/download/57240_RU_tp-hakijat_2014.pdf?27fe1fde8604d388, archived at

https://perma.cc/24QR-NNRL. 

100 Id. 

101 Press Release, Ministry of the Interior, Drop in Number of Asylum Seekers – New Estimate for This Year (Oct. 

15, 2015), https://www.intermin.fi/en/current_issues/news/1/1/drop_in_number_of_asylum_seekers_-

_new_estimate_for_this_year_63139, archived at https://perma.cc/X569-V2Y8. 

102 Press Release, Maahanmuuttovirasto/Migrationsverket, Den individuella situationen avgör då irakier söker asyl, 

inte ursprungsregionen (Oct. 20, 2015), 

http://www.migri.fi/for_media/meddelanden/pressmeddelanden/pressmeddelanden/1/0/den_individuella_situationen

_avgor_da_irakier_soker_asyl_inte_ursprungsregionen_63198, archived at https://perma.cc/47DZ-3ULT. 

103 Press Release, Ministry of the Interior, Finland to Review Migration Legislation to Comply with EU Provisions 

(Nov. 3, 2015), https://www.intermin.fi/en/current_issues/news/1/1/finland_to_review_migration_legislation_ 

to_comply_with_eu_provisions_63455, archived at https://perma.cc/VBN4-2SCT. 

104 Press Release, SUPO, Asylsökande och den nationella säkerheten (Nov. 3, 2015), http://www.poliisi.fi/ 

instancedata/prime_product_julkaisu/intermin/embeds/poliisiwwwstructure/40823_20151103_Pressmeddelande_asy

lsokande_och_sakerhet.pdf?52ea2d34c015d388, archived at https://perma.cc/L4GL-793P. 
France

Nicolas Boring

Foreign Law Specialist

SUMMARY France has a long tradition of offering asylum to foreign refugees, and the right of asylum 

has constitutional value under French law. French asylum law is heavily based on 

international and European law, but is largely codified in the Code de l’entrée et du séjour 

des étrangers et du droit d’asile (CESEDA, Code of Entry and Residence of Foreigners and 

of the Right of Asylum).

There are two types of asylum protection in France: refugee protection and subsidiary 

protection. Asylum essentially rests on the serious possibility that the asylum seeker could 

be the victim of persecution or harm in his/her country of origin. Asylum may be denied 

or revoked for individuals who have committed crimes or whose presence would be a 

threat to society or national security.

Refugees and beneficiaries of subsidiary protection have the right to live and work in 

France, and to bring their spouse and children. Those granted refugee status can apply to 

be naturalized as French citizens immediately. Refugees and beneficiaries of subsidiary 

protection have the right to obtain travel documents from the French government. 

Refugees and beneficiaries of subsidiary protection are required to attend some civic 

training programs and, if necessary, language classes. Refugees and beneficiaries of 

subsidiary protection have similar rights to social benefits as French citizens do, but only 

have access to certain special aid programs during the time that their application for 

asylum is being processed. 

An applicant for asylum must be either on French territory or at a French border crossing 

point to request asylum. Before coming, however, an asylum seeker may request a special 

visa for the purpose of asylum from a French embassy or consulate. A person with such a 

visa must follow the same procedure as other asylum seekers once in France, but is 

authorized to work while his/her application for asylum is being processed and evaluated, 

contrary to other applicants. Asylum seekers who request asylum at a border crossing 

point are kept in a “waiting zone” for a few days while the Ministry of the Interior decides 

whether they should be allowed inside the country or not. Once in France, asylum seekers 

must register at a local prefecture as the first step of the asylum application process. The 

prefecture’s services verify whether France would be responsible for protecting the asylum

seeker under European Union rules and, if it finds that it would, provides the applicant

with an asylum application form and with information on the application process, the 

applicant’s rights and obligations, assistance that he/she is entitled to, and any local 

organizations that help asylum seekers. The asylum seeker is then supposed to send 

his/her application form to the Office français de protection des réfugiés et apatrides 

(OFPRA, French Office for the Protection of Refugees and Stateless Persons), which 

determines who is eligible for refugee status or subsidiary protection. The OFPRA must 

reach a decision within six months, though time extensions are possible in certain 

situations. The OFPRA evaluates all relevant evidence, and usually conducts an interview 

of the applicant as part of its investigation. The OFPRA’s decisions may be appealed to 

the Cour nationale du droit d’asile (National Court for Asylum Law).

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I. Introduction

France has a long tradition of offering asylum to foreign refugees. One of the constitutions 

drafted during the French revolution, the Constitution of 1793, provided that France should “give 

asylum to foreigners who have been banished from their homeland for the cause of liberty” and 

should “refuse [asylum] to tyrants.”1 While the Constitution of 1793 was never actually 

implemented, the nineteenth century saw many exiles from European countries destabilized by 

nationalist, revolutionary, and counter-revolutionary movements (Italy, Poland, Spain, etc.) seek

and obtain refuge in France.2 Similar trends continued in the twentieth century, although that 

time period also saw the rise of countervailing tendencies towards restricting the influx 

of refugees.3

French asylum law today is founded on constitutional principles and heavily influenced by 

international and European law. The preamble to the French Constitution of 1946, which was 

incorporated by reference into the preamble of the Constitution of 1958 (the current French 

constitution),4 declared that “[a]ny man persecuted in virtue of his actions in favor of liberty may 

claim the right of asylum upon the territories of the Republic.”5

 In a 1993 decision, the 

Constitutional Council (Conseil constitutionnel, the French high court with jurisdiction over 

questions of constitutionality) confirmed that, based on this constitutional provision, asylum is a 

constitutional right for persons who qualify for it.6 Consequently, it ruled that asylum 

applicants have a general right to stay in France until their asylum request has been processed 

and decided upon, and that, barring any threat to public order, all persons who qualify for asylum 

must be allowed to stay in France.7

 

1 CONSTITUTION DU 24 JUIN 1793 [CONSTITUTION OF JUNE 24, 1793] art. 120, http://www.conseil-constitutionnel. 

fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-du-24-juin1793.5084.html, archived at https://perma.cc/NC3E-AUPF (translation by author).

2 GÉRARD NOIRIEL, LA TYRANNIE DU NATIONAL: LE DROIT D’ASILE EN EUROPE 1793–1993 [THE TYRANNY OF THE 

NATIONAL: ASYLUM RIGHTS IN EUROPE 1793–1993] at 37 (1991).

3 Id. at 100–117.

4 CONSTITUTION DU 4 OCTOBRE 1958 [CONSTITUTION OF OCTOBER 4, 1958], Preamble, http://www.legifrance.gouv. 

fr/affichTexte.do?cidTexte=LEGITEXT000006071194, archived at https://perma.cc/3Q9L-3BZB, English 

translation available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/ 

constitution-of-4-october-1958.25742.html, archived at https://perma.cc/DE2Y-4MXA.

5 CONSTITUTION DU 27 OCTOBRE 1946 [CONSTITUTION OF OCTOBER 27, 1946], Preamble, http://www.legifrance. 

gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006071193&dateTexte=&categorieLien=cid, archived at

https://perma.cc/Y7SR-F66U, English translation available at http://www.conseil-constitutionnel.fr/conseilconstitutionnel/root/bank_mm/anglais/cst3.pdf, archived at https://perma.cc/NBV7-DGG9.

6 Décision No. 93-325 DC du 13 août 1993 [Decision No. 93-325 DC of August 13, 1993], CONSEIL 

CONSTITUTIONNEL [CONSTITUTIONAL COUNCIL], http://www.conseil-constitutionnel.fr/conseil-constitutionnel/ 

francais/les-decisions/acces-par-date/decisions-depuis-1959/1993/93-325-dc/decision-n-93-325-dc-du-13-aout1993.10495.html, archived at https://perma.cc/M9HG-J4B2.

7 Id.

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In addition to this constitutional foundation, French asylum law rests heavily on international and 

European law.8 Of particular importance are the 1951 Geneva Convention Relating to the Status 

of Refugees, and the European Union (EU) Regulation of June 26, 2013 (referred to as the 

“Dublin Regulation”).9

 On a practical level, however, French asylum law has mostly been 

codified in the Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA, Code of 

Entry and Residence of Foreigners and of the Right of Asylum), including the application of the 

aforementioned international and European norms in French domestic law.10 The present report, 

therefore, will principally refer to the CESEDA.

French asylum law has gone through many reforms and evolutions, big and small, over the past 

two centuries. There have been some significant recent changes, as France attempts to cope with 

the challenges posed by the refugee crisis currently affecting Europe. Specifically, French 

legislators enacted a law in July 2015 that reformed several aspects of asylum law.11 The present 

report discusses French asylum law as it currently stands after implementation of this 2015 law.

II. Refugee Status and Subsidiary Protection

There are two basic types of asylum protection in France: refugee status, and 

subsidiary protection.

A. Refugee Status

Refugee status is defined as belonging to “any person persecuted for his/her action in favor of 

liberty” as well as any person over whom the United Nations High Commission for Refugees 

(UNHCR) has competence under articles 6 and 7 of its statute, and any person who is covered by 

article 1 of the 1951 Geneva Convention Relating to the Status of Refugees.12 This includes 

8 Les grands principes du droit d’asile [The Main Principles of Asylum Law], MINISTÈRE DE L’INTÉRIEUR [MINISTRY 

OF THE INTERIOR] (Nov. 2, 2015), http://www.immigration.interieur.gouv.fr/Asile/Le-droit-d-asile/Les-grandsprincipes-du-droit-d-asile, archived at https://perma.cc/8KYT-TEMT.

9 Id.; Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, 

http://www.unhcr.org/3b66c2aa10.html, archived at https://perma.cc/36LL-Z9PR; Regulation (EU) No. 604/2013 of 

the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for 

Determining the Member State Responsible for Examining an Application for International Protection Lodged in 

One of the Member States by a Third-Country National or a Stateless Person, 2013 O.J. (L 180) 31, http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF, archived at 

https://perma.cc/778B-TM4C.

10 Les grands principes du droit d’asile, supra note 8; CODE DE L’ENTRÉE ET DU SÉJOUR DES ÉTRANGERS ET DU 

DROIT D’ASILE [CESEDA, CODE OF ENTRY AND RESIDENCE OF FOREIGNERS AND OF THE RIGHT OF ASYLUM], 

http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070158&dateTexte=20160105, archived 

at https://perma.cc/943H-E4JD.

11 Loi n° 2015-925 du 29 juillet 2015 relative à la réforme du droit d’asile [Law No. 2015-925 of July 29, 2015, 

Regarding Reform of Asylum Law], http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT00003 

0949483&categorieLien=id, archived at https://perma.cc/LDT7-4KLZ.

12 CESEDA art. L711-1, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000006 

147794&cidTexte=LEGITEXT000006070158&dateTexte=20160105, archived at https://perma.cc/SUD6-DKN7.

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any person 

who is outside the country of his nationality, or if he has no nationality, the country of his 

former habitual residence, because he has or had well-founded fear of persecution by 

reason of his race, religion, nationality or political opinion and is unable or, because of 

such fear, is unwilling to avail himself of the protection of the government of his 

nationality, or, if he has no nationality, to return to the country of his former 

habitual residence.13 

To the criteria of race, religion, nationality, or political opinion as the reason for persecution, 

French law adds gender and sexual orientation as factors to consider.14 The persecution feared 

by the asylum seeker does not necessarily have to come from his/her country’s government. The 

fear of persecution at the hands of non-state actors is also a valid cause to obtain refugee status, 

if the country’s government is unable or unwilling to protect the asylum seeker from 

such persecution.15

A person may be denied refugee status, or such status may be revoked, if (a) there is serious 

reason to believe that his/her presence in France presents a grave threat to the security of the 

state; or (b) he/she was found guilty of an act of terrorism or of a crime punished by more than 

ten years of incarceration, and his/her presence in France presents a grave threat to society.16

B. Subsidiary Protection

Subsidiary protection is given to any person who does not fulfill the conditions to be recognized 

as a refugee, but for whom there are serious and known reasons to believe that he/she is in real 

danger of suffering the following violations in his/her country: (a) execution, (b) torture or 

inhumane or degrading treatment, or (c) if the person is a civilian, a serious and individual threat 

to his/her life or person by reasons of indiscriminate violence in situations of international or 

internal armed conflict.17 Subsidiary protection may be denied to a person when there are 

serious reasons to believe that (a) he/she has committed a crime against peace, a war crime, or a 

crime against humanity; (b) he/she has committed a serious crime; (c) he/she is guilty of acts 

contrary to the objectives and principles of the United Nations; or (d) his/her activity on French 

territory presents a grave threat to public order, public security, or the security of the state.18 

Furthermore, subsidiary protection may be denied to a person if there is serious reason to believe 

13 Statute of the Office of the United Nations High Commissioner for Refugees art. 6.B (Dec. 14, 1950), 

http://www.unhcr.org/3b66c39e1.html, archived at https://perma.cc/3JYS-9DA3.

14 CESEDA art. L711-2, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000 

006147794&cidTexte=LEGITEXT000006070158&dateTexte=20160105, archived at https://perma.cc/SUD6-

DKN7.

15 Les grands principes du droit d’asile, supra note 8.

16 CESEDA art. L711-6.

17 Id. art. L712-1, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000006147795&cid 

Texte=LEGITEXT000006070158&dateTexte=20160105, archived at https://perma.cc/4WRR-KNYE.

18 Id. art. L712-2.

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that he/she has committed a crime that would be punishable by prison if it had been committed in 

France, and that he/she only left his/her country of origin to escape punishment for that crime.19

III. Benefits of Asylum

A. Right to Stay

1. Residency

The first, and perhaps most obvious, benefit of asylum is the legal right to reside in France. 

Refugees gain the right to a residency permit, which is valid for an initial term of ten years and 

can then be renewed for an indefinite term.

20 Beneficiaries of subsidiary protection gain the 

right to a temporary stay permit, valid for an initial term of one year and renewable for 

subsequent two-year terms.21 Both the residency permit and the temporary stay permit authorize 

the holder to work in France.22

The spouse and children of a refugee or beneficiary of subsidiary protection may reside in France 

with him/her.

23 However, this right may be denied to a relative whose presence in France would 

present a threat to public order, or who is found to have participated in the persecutions that 

caused the asylum request, or if the applicant does not follow the basic principles of family life 

in France (such as monogamy, for example).24

19 Id.

20 Id. art. L314-1, http://www.legifrance.gouv.fr/affichCode.do?idArticle=LEGIARTI000006335087&id 

SectionTA=LEGISCTA000006163232&cidTexte=LEGITEXT000006070158&dateTexte=20160106, archived at

https://perma.cc/9HM3-ZJY7, art. L314-11, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=C2B4 

CE7D211A43A8E7194C1680EFFB3A.tpdila23v_3?idSectionTA=LEGISCTA000006180202&cidTexte=LEGITE

XT000006070158&dateTexte=20160106, archived at https://perma.cc/2FEA-XUD2, art. L314-14, 

http://www.legifrance.gouv.fr/affichCode.do;jsessionid=C2B4CE7D211A43A8E7194C1680EFFB3A.tpdila23v_3?i

dSectionTA=LEGISCTA000006180204&cidTexte=LEGITEXT000006070158&dateTexte=20160106, archived at

https://perma.cc/U528-MK69; Les droits des bénéficiaires d’une protection: Le séjour en France [The Rights of 

Beneficiaries of Protection: The Stay in France], MINISTÈRE DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 

2015), http://www.immigration.interieur.gouv.fr/Asile/Les-droits-des-beneficiaires-d-une-protection/Le-sejour-enFrance, archived at https://perma.cc/L6E3-QJXE.

21 CESEDA arts. L313-11, L313-13, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA= 

LEGISCTA000006180199&cidTexte=LEGITEXT000006070158&dateTexte=20160106, archived at 

https://perma.cc/QH7Z-V7SD; Les droits des bénéficiaires d’une protection: Le séjour en France [The Rights of 

Beneficiaries of Protection : Staying in France], MINISTÈRE DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 

2015), http://www.immigration.interieur.gouv.fr/Asile/Les-droits-des-beneficiaires-d-une-protection/Le-sejour-enFrance, archived at https://perma.cc/L6E3-QJXE; Les droits des bénéficiaires d’une protection: Le séjour en 

France, supra note 20.

22 CESEDA arts. L313-13, L314-4.

23 Id. art. L752-1, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=0737EB5CB4A378C904939C36B4 

E8E2F2.tpdila23v_3?idSectionTA=LEGISCTA000030952584&cidTexte=LEGITEXT000006070158&dateTexte=2

0160106, archived at https://perma.cc/H9JN-RPG5.

24 Id.

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2. Obtaining French Citizenship

Furthermore, being a refugee greatly shortens the naturalization process, should the person wish 

to obtain French citizenship. Whereas the normal requirements for naturalization include 

(among other criteria) that the applicant have resided in France for at least the previous five 

years,

25 a person officially recognized as a refugee by the French government may apply for 

naturalization immediately.26 All the other requirements (such as being of good moral conduct 

and character; having no criminal record; demonstrating that he/she is integrated into French 

society; and that he/she has sufficient knowledge of the French language, history, culture, and 

values)27 appear to generally apply, however, except that a further simplification is provided for 

elderly refugees. Political refugees and stateless persons who are over seventy years of age and 

who have resided in France for at least fifteen years may be naturalized without having to 

demonstrate knowledge of the French language.28 The normal rules of naturalization apply to 

beneficiaries of subsidiary protection, but unlike refugees, they are not exempt from the five-year 

residency requirement.

B. Travel Documents

A refugee or beneficiary of subsidiary protection may obtain travel documents from the French 

government, unless there is a strong reason related to national security or public order for the 

government to withhold such travel documents.29 These travel documents allow the person to 

travel outside of France (in a manner similar to a passport), and are valid for two years for a 

refugee, and one year for a beneficiary of subsidiary protection.30 An important limitation to 

these travel documents is that they do not authorize a refugee or beneficiary of subsidiary 

protection to return to his/her country of origin or any other country where he/she may suffer the 

persecution or danger that justified asylum in France.31 However, a refugee or beneficiary of 

subsidiary protection may request a three-month safe conduct pass to travel to his/her country of 

origin when it is justified by very rare circumstances such as the death or serious illness of a 

close relative.32

25 CODE CIVIL [CIVIL CODE] art. 21-17, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=4F705C 

28A2651DCC02CD224A0A80E41B.tpdila19v_2?idSectionTA=LEGISCTA000006165459&cidTexte=LEGITEXT

000006070721&dateTexte=20151123, archived at http://perma.cc/Y96C-MDRD

26 CODE CIVIL art. 21-19. 

27 Id. arts. 21-16, 21-23, 21-24.

28 Id. art. 21-24-1.

29 CESEDA arts. L753-1, L753-2, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=DBF30A36 

3AEF2062FC87081386E633B1.tpdila11v_1?idSectionTA=LEGISCTA000030952616&cidTexte=LEGITEXT0000

06070158&dateTexte=20160107, archived at https://perma.cc/NP5N-Z3M7; Les droits des bénéficiaires d’une 

protection: Le voyage à l’étranger [The Rights of Beneficiaries of Protection: Traveling Abroad], MINISTÈRE DE 

L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 2015), http://www.immigration.interieur.gouv.fr/Asile/Lesdroits-des-beneficiaires-d-une-protection/Le-voyage-a-l-etranger, archived at https://perma.cc/EG9T-DTMF.

30 Id.

31 Id.

32 Les droits des bénéficiaires d’une protection: Le voyage à l’étranger, supra note 29.

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C. Assimilation

Like other immigrants upon their first arrival in France, refugees and beneficiaries of subsidiary 

protection are required to sign an “accommodation and integration contract” (contrat d’accueil et 

d’intégration) with the French government, by which they commit to respect the fundamental 

values of the French Republic and to attend a civic training program, an information session on 

life in France, and, if necessary, language classes.33 The civic training program is a one-day 

session about French political and administrative institutions as well as French social values such 

as gender equality, secularism, and compulsory and free access to education.34 The information 

session about life in France is meant to “inform newly arrived migrants of the formalities of 

everyday life.”35 This “contract” also gives access to individualized help to determine the 

person’s professional competencies and potential, and to develop a strategy to 

find employment.36

D. Social Benefits

1. Refugees and Beneficiaries of Subsidiary Protection Eligible for the Same Social Benefits as 

French Citizens

Refugees and beneficiaries of subsidiary protection have similar rights to social benefits as 

French citizens.37 They are covered by the French universal health insurance scheme, for 

example, and they may get various social welfare benefits (guaranteed minimum income, family 

subsidies, access to social housing, etc.) under the same conditions as French citizens.38 

2. Special Programs for Asylum Seekers

a. Temporary Housing Assistance

Asylum seekers also benefit from certain welfare programs that target them specifically, in order 

to facilitate their settlement into French society. Specifically, asylum seekers may reside in 

33 CESEDA art. L311-9, http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT00000 

6070158&idArticle=LEGIARTI000006335043&dateTexte=&categorieLien=cid, archived at 

https://perma.cc/759G-Y5XE; Everything About the CAI: Presentation, OFFICE FRANÇAIS DE L’IMMIGRATION ET DE 

L’INTÉGRATION [FRENCH OFFICE FOR IMMIGRATION AND ASSIMILATION], http://www.ofii.fr/s_integrer_ 

en_france_47/presentation_466.html (last visited Jan. 6, 2016), archived at https://perma.cc/XAW8-523L.

34 Everything About the CAI: Presentation, supra note 33.

35 Id.

36 Les droits des bénéficiaires d’une protection: L’intégration [The Rights of Beneficiaries of Protection: 

Assimilation], MINISTÈRE DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 2015), http://www.immigration. 

interieur.gouv.fr/Asile/Les-droits-des-beneficiaires-d-une-protection/L-integration, archived at

https://perma.cc/M27D-87E2.

37 JEAN-MICHEL BELORGEY, LE DROIT D’ASILE [ASYLUM LAW] 132 (2013).

38 Id.; Les droits des bénéficiaires d’une protection: Les droits sociaux [The Rights of Beneficiaries of Protection: 

Social Rights], MINISTÈRE DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 2015), http://www.immigration. 

interieur.gouv.fr/Asile/Les-droits-des-beneficiaires-d-une-protection/Les-droits-sociaux, archived at

https://perma.cc/2PSP-YDUF.

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special temporary housing facilities called centres d’accueil pour demandeurs d’asile (CADA, 

centers for the reception of asylum seekers) while their asylum applications are being 

processed.

39 These facilities are usually managed at the local level by nonprofit organizations or 

by semipublic companies (sociétés d’économie mixte).40 If an asylum seeker’s application is 

approved, thereby granting him/her the status of refugee or beneficiary of subsidiary protection, 

he/she may stay in his/her CADA for up to six months while he/she seeks a more permanent 

housing arrangement.41 Like many other European countries, France has seen a surge in 

incoming refugees over the last couple of years, and this surge has resulted in a severe shortage 

in housing facilities for these new asylum applicants.42 In response to this crisis, the French 

government has endeavored to create 11,000 new CADA and similar emergency housing 

facilities in 2016.43

b. Temporary Financial Assistance

Additionally, asylum seekers in France are legally entitled to financial assistance called the 

allocation pour demandeur d’asile (ADA, Asylum Seeker Benefit) if their monthly income is 

under a certain threshold.

44 The amount of financial assistance depends on factors such as the 

applicant’s financial resources, the type of housing that he/she resides in, and the number of 

dependents in his/her family.45 Before any potential deduction or supplementation, the basic 

benefit is €6.80 (approximately US$7.37) per day for a single person, to be paid at the end of 

39 CESEDA arts. L744-1 & L744-5, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=741E2ED4BE 

705ACA52845E299276A2D0.tpdila14v_2?idSectionTA=LEGISCTA000030952343&cidTexte=LEGITEXT00000

6070158&dateTexte=20160108, archived at https://perma.cc/N5QH-KYKJ; Le parcour du demandeur d’asile: 

L’hébergement du demandeur d’asile [The Asylum Seeker’s Itinerary: Housing for the Asylum Seeker], MINISTÈRE 

DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 2015), http://www.immigration.interieur.gouv.fr/Asile/Leparcours-du-demandeur-d-asile/L-hebergement-du-demandeur-d-asile, archived at https://perma.cc/M9UD-FU85.

40 Le droit d’asile: Les acteurs de la politique d’asile [Asylum Rights: The Actors of Asylum Policy], MINISTÈRE DE 

L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Nov. 2, 2015), http://www.immigration.interieur.gouv.fr/Asile/Le-droitd-asile/Les-acteurs-de-la-politique-d-asile, archived at https://perma.cc/KS5S-7JK4.

41 Le parcour du demandeur d’asile: L’hébergement du demandeur d’asile, supra note 39.

42 Appel à projets concernant la création de 4000 places d’hébergement d’urgence pour demandeurs d’asile de type 

AT-SA [Call for Projects Regarding the Creation of 4000 Urgent Housing Places for AT-SA Type Asylum Seekers], 

MINISTÈRE DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (July 29, 2015), http://www.immigration.interieur. 

gouv.fr/Asile/Appel-a-projets-concernant-la-creation-de-4000-places-d-hebergement-d-urgence-pour-demandeurs-dasile-de-type-AT-SA, archived at https://perma.cc/2DCN-2BG2. 

43 Id.

44 CESEDA arts. L744-9, L744-10, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=C21FD4C 

99B1D528BA98E1441CCE0F14C.tpdila14v_2?idSectionTA=LEGISCTA000030952365&cidTexte=LEGITEXT00

0006070158&dateTexte=20160108, archived at https://perma.cc/N8WL-TFVM; Les droits des demandeurs d’asile: 

L’allocation pour demandeur d’asile [The Asylum Seeker’s Rights: Asylum Seeker Benefits], MINISTÈRE DE 

L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 2015), http://www.immigration.interieur.gouv.fr/Asile/Lesdroits-des-demandeurs-d-asile/L-allocation-pour-demandeur-d-asile-ADA, archived at https://perma.cc/D4WK3JUB.

45 Les droits des demandeurs d’asile: L’allocation pour demandeur d’asile, supra note 44.

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each month.46 This is increased to €10.20 (US$11.05) per day for a two-person family, €13.60 

(US$14.73) per day for a three-person family, and so forth.47 If the asylum seeker and his/her 

family have not been given housing in a CADA or similar facility, an extra €4.20 (US$4.55) per 

day is added to help them pay for lodging.48

This financial assistance ends when the government authorities have come to a final decision on 

the asylum seeker’s application.49 If the decision was positive (the asylum seeker was granted 

either refugee status or subsidiary protection), the person becomes eligible for the same welfare

benefits as regular French citizens, as noted earlier. Furthermore, even while the asylum 

seeker’s application is being considered by the government authorities, his/her ADA payments 

may be suspended for certain causes, such as if the asylum seeker left his/her place of residence 

without authorization, failed to show up at meetings with the authorities, or failed to respond to 

the authorities’ requests for information.50 The ADA payments may be ended entirely if the 

asylum seeker is found to have lied about his/her financial resources or family situation, or if 

he/she engaged in violent behavior or seriously breached the rules of his/her place of lodging.51

IV. The Admission of Refugees

A. Visas for the Purpose of Asylum

An applicant must be either on French territory or at a French border crossing to request 

asylum.52 An application for asylum cannot be made from another country.53 Before coming to 

France, however, an asylum seeker may request a special visa for the purpose of asylum from the 

French embassy or consulate closest to his/her place of residence.54 This will allow the asylum

seeker to enter France, and then submit an application for asylum from within France.55 The 

principal advantage of entering France on such a visa rather than entering France illegally or on 

another type of visa (such as a tourist or student visa) is that applicants who came on the basis of 

a visa for the purpose of asylum are authorized to work while their asylum application is being 

46 En quoi consiste l’allocation pour demandeur d’asile (Ada)? [What Is the Asylum Seeker Benefit (ADA)?], 

SERVICE-PUBLIC.FR (information website of the French administration) (Nov. 1, 2015), https://www.servicepublic.fr/particuliers/vosdroits/F33314, archived at https://perma.cc/KRU7-AMA6. 

47 Id.

48 Id.

49 Les droits des demandeurs d’asile: L’allocation pour demandeur d’asile, supra note 44.

50 Id.

51 Id.

52 Les grands principes du droit d’asile, supra note 8.

53 La procédure de demande d’asile: Demander l’asile de l’étranger [The Asylum Procedure: Requesting Asylum 

from Abroad], OFFICE FRANÇAIS DE PROTECTION DES RÉFUGIÉS ET APATRIDES [FRENCH OFFICE FOR THE PROTECTION 

OF REFUGEES AND STATELESS PERSONS], https://www.ofpra.gouv.fr/fr/asile/la-procedure-de-demande-dasile/demander-l-asile-de-l-etranger (last visited Jan. 11, 2016), archived at https://perma.cc/E8S9-7H86.

54 Id.

55 Id.

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processed.

56 By contrast, an asylum seeker who did not enter France on the basis of a visa for 

the purpose of asylum may not work until the competent French authorities come to a decision 

on his/her application for asylum (if, for reasons that are not of the applicant’s doing, the 

authorities take more than nine months to come to a decision, the applicant may legally work 

nine months after the registration of his/her application for asylum).

57

It is worth noting that there is no statutory foundation for visas for the purpose of asylum, but 

rather they are the product of executive instructions to France’s consular stations.58 These 

instructions require the consular authorities to protect the visa applicant’s confidentiality, and the 

visa document does not actually mention anything about asylum.

59 This discretion is meant to 

avoid bringing the asylum seeker to the attention of potential persecutors while he/she is still in 

his/her country of origin.

It appears that approximately 791 visas were granted to Syrian nationals for the purpose of 

asylum during the year 2013 (155 were granted in Syria proper, and 636 were granted by French 

consulates in countries neighboring Syria), a significant increase compared to previous years.60 

However, these numbers appear very modest compared to the many thousands of refugees from 

that region who tried to enter Europe during that time period.61 According to some estimates, 

approximately 5,000 Syrians, including 3,000 with refugee status, entered France between March 

2011 and February 2014,62 which would seem to indicate that most entered France without the 

benefit of a special visa for the purpose of asylum.

B. The Principal Actors

The principal government body in charge of processing and evaluating asylum applications is the 

Office français de protection des réfugiés et apatrides (OFPRA, French Office for the Protection 

of Refugees and Stateless Persons).63 Several other entities also play important roles, however, 

particularly the Cour nationale du droit d’asile (CNDA, National Court on Asylum Law), the 

56 Id.

57 CESEDA art. L744-11, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=614052FA51CA2199B4 

3CE6A7091E6142.tpdila08v_3?idSectionTA=LEGISCTA000030952371&cidTexte=LEGITEXT000006070158&d

ateTexte=20160111, archived at https://perma.cc/V7S2-YHNG.

58 Question No. 23491 de M. Laurent Grandguillaume au Ministre de l’intérieur [Question No. 23491 of Mr. Laurent 

Grandguillaume to the Minister of the Interior], Question écrite [Written Question], ASSEMBLÉE NATIONALE 

[NATIONAL ASSEMBLY] (Dec. 17, 2013), http://questions.assemblee-nationale.fr/q14/14-23491QE.htm, archived at 

https://perma.cc/DX8L-4VFZ.

59 Id.

60 Id.

61 Philippe Huguen, Réfugiés syriens: leur nombre en constante augmentation en Occident [Syrian Refugees: Their 

Numbers in Constant Increase in the West], RFI (Apr. 17, 2014), http://www.rfi.fr/moyen-orient/20140321-refugiessyriens-leur-nombre-constante-augmentation-occident, archived at https://perma.cc/7QTP-5ZGG.

62 Réfugiés syriens: la France fait un geste [Syrian Refugees: A Gesture on the Part of France], LE POINT (Feb. 24, 

2014), http://www.lepoint.fr/monde/refugies-syriens-la-france-fait-un-geste-24-02-2014-1795304_24.php, archived 

at https://perma.cc/999H-DCKM.

63 Le droit d’asile: Les acteurs de la politique d’asile, supra note 40.

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Office français de l’immigration et de l’intégration (OFII, French Office for Immigration and 

Assimilation), and a number of specialized nonprofit organizations.64

The French asylum system appears to rely on nonprofit organizations to a very large degree. As 

mentioned earlier, many refugee housing facilities are managed by nonprofit organizations. In 

addition to that role, refugee-centered nonprofits are responsible for informing and guiding 

asylum seekers throughout the application process.65

The main point of contact between asylum applicants and the government authorities is the OFII, 

which coordinates the French asylum system and often acts as the intermediary between 

applicants and the OFPRA.

66 There are thirty-four OFII offices located within prefectures 

around the country.67

The CNDA is a specialized administrative court set up to hear asylum seekers’ appeals against 

unfavorable decisions of the OFPRA.

68 Placed under the authority of a member of the Conseil 

d’Etat (Council of State, France’s highest court in matters of administrative law), this court is

divided into several judging sections, each composed of a judge and two assistants 

(assesseurs).

69 One of the two assistants in each judging section is nominated by the UNHCR.70 

While the standard hearing panel configuration is the three-member judging section, cases that 

are deemed particularly important may be heard by the court in “large formation” (grande 

formation), composed of three judges (including the president of the court) and six assistants, 

three of these assistants being UNHCR nominees.71 Conversely, a judge may decide a case by 

him/herself when the convening of a regular three-member hearing formation would not be 

justified.72 Examples of such cases include situations where an appeal does not bring up any 

64 Id.

65 Le parcours du demandeur d’asile: L’accompagnement du demandeur d’asile [The Process for Asylum Seekers: 

The Support Program for Asylum Seeker], MINISTÈRE DE L’INTÉRIEUR [MINISTRY OF THE INTERIOR] (Oct. 30, 2015), 

http://www.immigration.interieur.gouv.fr/Asile/Le-parcours-du-demandeur-d-asile/L-accompagnement-dudemandeur-d-asile, archived at https://perma.cc/F8PZ-Z7KW.

66 Id.; Le droit d’asile: Les acteurs de la politique d’asile, supra note 40.

67 Le parcours du demandeur d’asile: L’accompagnement du demandeur d’asile, supra note 65.

68 Le droit d’asile: Les acteurs de la politique d’asile, supra note 40; CESEDA arts. L731-1, L731-2, 

http://www.legifrance.gouv.fr/affichCode.do;jsessionid=2F5CE8F2CE215E45362E5BE86554B40F.tpdila07v_1?id

SectionTA=LEGISCTA000006147816&cidTexte=LEGITEXT000006070158&dateTexte=20160112, archived at 

https://perma.cc/4FCU-3RVD.

69 Le droit d’asile: Les acteurs de la politique d’asile, supra note 40; CESEDA art. L732-1, 

http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000006147817&cidTexte=LEGITEXT0000

06070158&dateTexte=20160112, archived at https://perma.cc/JB6P-V3U4. 

70 Id.

71 Formations de jugement de la C.N.D.A. [Judgment Formations of the C.N.D.A.], COUR NATIONALE DU DROIT 

D’ASILE [NATIONAL COURT ON ASYLUM LAW], http://www.cnda.fr/La-CNDA/Organisation-de-laCNDA/Formations-de-jugement-de-la-CNDA (last visited Jan. 12, 2016), archived at https://perma.cc/M69S-6L4P; 

CESEDA art. R732-5, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=FB3F85F0E323D105513EB 

10EB45C49D6.tpdila18v_2?idSectionTA=LEGISCTA000006147855&cidTexte=LEGITEXT000006070158&date

Texte=20160112, archived at https://perma.cc/2XQB-L64E. 

72 Formations de jugement de la C.N.D.A., supra note 71.

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serious argument to reverse the OFPRA’s decision, the appeal must be rejected as being 

procedurally defective, or the appeal must be rejected because it does not fall within the CNDA’s 

jurisdiction.73 Decisions of the CNDA are appealable to the Conseil d’Etat.74

C. Procedure for Requesting Asylum at a French Border Crossing

If a person arrives at a French border crossing point (typically a port, an airport, or a major train 

station) without the proper documents to enter French territory, he/she may ask the border police 

for asylum.75 The border police will give the asylum seeker (in a language that he/she can 

understand) information on the asylum procedure, his/her rights and obligations, and the 

assistance that he/she may be entitled to.76 The asylum seeker will be kept in a “waiting zone” 

(zone d’attente, often an international transit zone) while French authorities do a preliminary 

assessment to decide whether he/she should be admitted into France.

77 Entry will be refused if 

the asylum seeker’s case is found to be the responsibility of another country under the rules of 

the EU’s Dublin Regulation,78 the request for asylum is clearly improper or fraudulent, the 

request for asylum is inadmissible (for example, if asylum was already granted by another 

country), the request for asylum is clearly unfounded (for example, if it is incoherent or has no 

credibility), or the applicant would be a threat to public order.79 This preliminary investigation is 

conducted by the OFPRA, but the decision to admit an applicant into France or not belongs to 

the Ministry of the Interior, after consulting the OFPRA.

80 The OFPRA usually renders its 

evaluation within four days, and in any case an applicant may not be held in the waiting zone for 

more than twenty days.81

73 CESEDA art. R733-4, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA00000 

6163307&cidTexte=LEGITEXT000006070158&dateTexte=20160112, archived at https://perma.cc/77RZ-ALGK.

74 Id. art. R733-35, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=3DEEC6F0EC6F707A7FFBE 

242D7E9F72C.tpdila18v_2?idSectionTA=LEGISCTA000027849684&cidTexte=LEGITEXT000006070158&dateT

exte=20160112, archived at https://perma.cc/6KWL-N367.

75 La procédure de demande d’asile: Demander l’asile à la frontière [Asylum Procedure: Requesting Asylum at the 

Border], OFFICE FRANÇAIS DE PROTECTION DES RÉFUGIÉS ET APATRIDES [FRENCH OFFICE FOR THE PROTECTION OF 

REFUGEES AND STATELESS PERSONS], https://www.ofpra.gouv.fr/fr/asile/la-procedure-de-demande-dasile/demander-l-asile-a-la-frontiere (last visited Jan. 12, 2016), archived at https://perma.cc/Y92C-VGS4; Première 

étape de la demande d’asile: l’enregistrement en préfecture [First Steps of the Request for Asylum: Registering at 

the Prefecture] (click on Depuis la frontière), SERVICE-PUBLIC.FR (information website of the French 

administration) (Oct. 2, 2015), https://www.service-public.fr/particuliers/vosdroits/F2232, archived at

https://perma.cc/4HCR-PZY8.

76 Première étape de la demande d’asile: l’enregistrement en préfecture (click on Depuis la frontière).

77 Id.; CESEDA art. L221-1, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=D199AE2484D531EFB 

029FBE89976DAA9.tpdila07v_1?idSectionTA=LEGISCTA000006147751&cidTexte=LEGITEXT000006070158

&dateTexte=20160112, archived at https://perma.cc/LJ6L-5L4M.

78 Regulation (EU) No. 604/2013, supra note 14. 

79 CESEDA arts. L221-1, L213-8-1, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=D199AE2484D 

531EFB029FBE89976DAA9.tpdila07v_1?idSectionTA=LEGISCTA000006147750&cidTexte=LEGITEXT000006

070158&dateTexte=20160112, archived at https://perma.cc/S4A2-4F64; Première étape de la demande d’asile: 

l’enregistrement en préfecture, supra note 75 (click on Depuis la frontière).

80 La procédure de demande d’asile: Demander l’asile à la frontière, supra note 75.

81 Id.

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An applicant who is denied entry into France has forty-eight hours to appeal the decision before 

an administrative judge.82 The administrative judge then has seventy-two hours to either confirm 

or invalidate the denial of entry, and this decision is, in turn, appealable to an administrative 

court of appeals.83 If the denial of entry is not reversed, the applicant is sent back to his/her 

country of origin (or the country from which he/she came to France) at the expense of the 

transport company that carried him/her to France.84

An applicant who is authorized to enter France for the purpose of seeking asylum is given a 

temporary visa, which is valid for eight days.85 During that eight-day period, the asylum seeker 

must submit an application for asylum to a local prefecture, as described below.86

D. Procedure for Requesting Asylum from Within France

The following procedure applies for the asylum seeker who is already on French territory, either 

because he/she entered France illegally, because he/she was granted the temporary visa described 

above, or because he/she entered France on the basis of another visa or stay permit (student visa, 

tourist visa, etc.). 

1. Registration at a Local Prefecture

The asylum seeker’s first step is to register as an asylum seeker with the French authorities.87 

The competent authorities for this registration are the local prefectural services.88 These services 

verify whether France is responsible for protecting the asylum seeker under the rules of the EU 

Dublin Regulation.

89 The prefectural services have up to three days to make this determination, 

except when they are faced with a high number of foreigners asking for asylum at the same time, 

in which case they may take up to ten days to make a determination.90 If no other country is 

found to be responsible for protecting the asylum seeker under the Dublin Regulation, the 

82 CESEDA art. L213-9.

83 Id.

84 Id. arts. L213-4 – L213-8.

85 Id. arts. L213-8-1, L213-8-2.

86 Id.; La procédure de demande d’asile: Demander l’asile à la frontière, supra note 75.

87 CESEDA art. L741-1, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=0968D875D95471B1BFEB 

2A96820D83BF.tpdila21v_3?idSectionTA=LEGISCTA000030957541&cidTexte=LEGITEXT000006070158&date

Texte=20160113, archived at https://perma.cc/4XDV-59NB; Première étape de la demande d’asile: 

l’enregistrement en préfecture, supra note 75 (click on both Depuis la frontière and Sur le territoire français).

88 CESEDA art. R741-1, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA0000 

31202369&cidTexte=LEGITEXT000006070158&dateTexte=20160113, archived at https://perma.cc/MRX6-

TCVF; Première étape de la demande d’asile: l’enregistrement en préfecture, supra note 75 (click on both Depuis 

la frontière and Sur le territoire français).

89 CESEDA art. L741-1. Applicants who requested asylum at the border, as described in Part IV(C) of this report, 

have already gone through such a verification at this point, so this step would be redundant for them. Nonetheless, it 

is unclear whether the prefectural services skip this step or not in their cases.

90 CESEDA art. L741-1.

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prefectural services give the applicant a document certifying that he/she is registered as an 

asylum seeker.91 This registration document does not authorize the applicant to travel within the 

European Union.92 Furthermore, it may be denied or taken away in certain cases, including (a) 

when the OFPRA has found that the applicant already benefits from protection in another 

country; (b) when the asylum seeker retracts his/her application for asylum; (c) when the asylum

seeker’s file is closed because of his/her failure to file required forms in a timely manner or 

attend required meetings, or due to his/her refusal to provide important information; (d) when the 

asylum seeker requests a reconsideration of his/her application after a final denial; or (e) when 

the asylum seeker is the subject of a European arrest warrant, an arrest request from an 

international criminal court, or a decision to extradite him/her to a country other than his/her 

country of origin.93

In addition to the registration document mentioned above, the prefectural services give the 

asylum seeker an asylum application form, as well as information on the asylum application 

process, his/her rights and obligations during that process, assistance he/she is entitled to 

(lodging, financial assistance, etc.), and any local organizations that help asylum seekers.94

2. The OFPRA’s Investigation

An asylum seeker must submit his/her application for asylum to the OFPRA within twenty-one 

days of receiving his/her registration document.95 The OFPRA must then reach a decision 

within six months.96 This time limit may be extended to a maximum of nine additional months 

in certain circumstances, such as when complex issues of fact and/or law are involved, when 

large numbers of asylum seekers apply for protection at the same time, or when the delay is

clearly attributable to the applicant’s failure to comply with his/her obligations.97 If the OFPRA

is unable to reach a decision within six months, it must notify the applicant of that fact at least 

fifteen days before the end of the six-month period.98

91 Id. arts. L741-1, R741-4.

92 Id. art. R741-4.

93 Id. art. L743-2.

94 Id. art. R741-4.

95 CESEDA art. R723-1, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=39FA4F3DFCF38424C8E02 

B2B004B164E.tpdila11v_2?idSectionTA=LEGISCTA000031197664&cidTexte=LEGITEXT000006070158&date

Texte=20160114, archived at https://perma.cc/95JL-9LEU.

96 Id. art. R723-2, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000031197668&cidTexte 

=LEGITEXT000006070158&dateTexte=20160114, archived at https://perma.cc/5LPG-LQ9D; Directive 

2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting 

and Withdrawing International Protection art. 31, ¶ 3, 2013 O.J. (L 180) 60, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32013L0032&from=en, archived at https://perma.cc/V4FE-AY2T.

97 Id.

98 CESEDA art. R723-3.

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Refugee Law and Policy: France

The OFPRA must investigate applications under an “accelerated procedure” when the asylum

seeker comes from a safe country.99 The OFPRA may also, if it chooses, investigate under an 

accelerated procedure in cases where (a) the asylum seeker is found to have sought to mislead 

the OFPRA by providing fake documents, lying, or concealing information regarding his/her 

identity, nationality, and/or entry into France; (b) the asylum seeker is found to have submitted 

several applications for asylum under different identities; (c) the asylum seeker’s application 

only rests on elements that are irrelevant to asylum; (d) the asylum seeker’s statements to the 

OFPRA are clearly incoherent, contradictory, false, or very implausible; (e) the asylum seeker 

refuses to provide his/her fingerprints; (f) the asylum seeker, without legitimate reason, had 

stayed in France illegally for over 120 days before he/she submitted an application for asylum; or 

(g) the only purpose for the application for asylum is to delay deportation.100 Under such an 

accelerated procedure, the OFPRA is supposed to reach a decision on the application within 

fifteen days.101

The OFPRA conducts an investigation to verify whether the applicant fulfills the criteria for 

refugee status or subsidiary protection.102 The OFPRA evaluates all relevant evidence, including 

the applicant’s statements and any documentation concerning his/her identity, age, personal and 

family history, nationality, travel documents, past residences, past requests for asylum, itinerary, 

and the reasons for which he/she is seeking asylum.103 The agency also takes into consideration 

the current situation in the country of origin, as well as any activity that the applicant has 

engaged in since leaving the country of origin that may expose him/her to persecution or harm if 

he/she were to return there.104 It appears that special weight is given to evidence that the 

applicant has been the victim of past persecution, serious harm, or direct threats in the country 

of origin.105

The applicant is required to cooperate with the agency’s investigation, which generally includes 

an interview.106 The applicant may be interviewed in the presence of an attorney or of a 

representative from an authorized nonprofit advocacy group.107 The presence of an attorney or 

advocate is not required, however, and if present, the attorney or advocate may not speak until 

99 Id. art. L723-2, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=39FA4F3DFCF38424C8E02B2B00 

4B164E.tpdila11v_2?idSectionTA=LEGISCTA000030950918&cidTexte=LEGITEXT000006070158&dateTexte=2

0160114, archived at https://perma.cc/3J73-7ARJ.

100 Id.

101 Id. art. R723-4.

102 Id. art. L723-4.

103 Id.

104 Id.

105 Id.

106 Id. arts. L723-4, L723-6.

107 Id. art. L723-6.

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Refugee Law and Policy: France

the end of the interview.108 The OFPRA may also, as part of its investigation, request that the 

applicant submit to a medical examination.109

The OFPRA is held to a strict obligation of confidentiality. It is required to conduct its 

investigation without divulging the existence of a request for asylum to the alleged authors of 

persecution or harm.

110 The OFPRA must also conduct its investigation without divulging any

information that might endanger anyone or that might jeopardize the agency’s ability to conduct 

future investigations.111

3. The OFPRA’s Decision

The OFPRA must provide a decision in writing to the applicant.112 All decisions denying 

refugee status must include the grounds, both factual and legal, for the denial of protection.113 

Decisions awarding subsidiary protection must also be reasoned, inasmuch as such decisions are 

technically denials of refugee status.114 The OFPRA must also communicate its decision, 

whether it is positive or negative, to the prefect of the asylum seeker’s place of residence.115

As mentioned in Part II above, the status of refugee or subsidiary protection may be revoked. 

The OFPRA may revoke protection, either on its own initiative or upon the request of the 

Minister of the Interior or a local prefect, in the following situations: (a) in any of the 

circumstances described in sections C, D, E, and F of article 1 of the Geneva Convention of July 

28, 1951; (b) if the decision to grant protection is found to have been the result of a fraud; (c) 

when there are serious reasons to believe that the person’s presence in France would present a 

grave threat to the safety of the state; or (d) when the person was found guilty of an act of 

terrorism or a serious crime in France, and his/her continued presence in France would present a 

grave threat to society.

116

108 Id.

109 Id. art. L723-5.

110 Id. art. L723-10.

111 Id.

112 Id. art. L723-8.

113 Id.

114 L’instruction des demandes de protection: La décision [The Investigation of Requests for Protection: The 

Decision], OFFICE FRANÇAIS DE PROTECTION DES RÉFUGIÉS ET APATRIDES [FRENCH OFFICE FOR THE PROTECTION OF 

REFUGEES AND STATELESS PERSONS], https://www.ofpra.gouv.fr/fr/asile/l-instruction-des-demandes-de/la-decision

(last visited Jan. 15, 2016), archived at https://perma.cc/QY4Z-2F6L.

115 CESEDA art. R723-21, http://www.legifrance.gouv.fr/affichCode.do;jsessionid=CDCFC1788D991C4824 

42CDCF8E979940.tpdila13v_3?idSectionTA=LEGISCTA000031202340&cidTexte=LEGITEXT000006070158&d

ateTexte=20160115, archived at https://perma.cc/5P79-7R7A.

116 Id. arts. L711-4, L711-6, L712-2, L712-3, R711-1, http://www.legifrance.gouv.fr/affichCode.do?id 

Article=LEGIARTI000031196875&idSectionTA=LEGISCTA000031202258&cidTexte=LEGITEXT00000607015

8&dateTexte=20160115, archived at https://perma.cc/KMF4-39S4, & art. R712-1, http://www.legifrance. 

gouv.fr/affichCode.do?idSectionTA=LEGISCTA000031202254&cidTexte=LEGITEXT000006070158&dateTexte=

20160115, archived at https://perma.cc/6EV6-RY96.

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Refugee Law and Policy: France

4. Recourse Before the Cour nationale du droit d’asile (CNDA)

Asylum seekers may appeal decisions of the OFPRA to the CNDA within one month of being 

notified.117 The CNDA must judge a case within five months of the date of the appeal.118 The 

CNDA may either (a) deny the applicant’s appeal, (b) reverse the OFPRA’s decision and grant 

asylum to the applicant, or (c) quash the OFPRA’s decision and send the case back to it for 

further investigation.119

117 CESEDA art. L731-2.

118 Id.

119 Id. art. L733-5, http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000006147818&cid 

Texte=LEGITEXT000006070158&dateTexte=20160115, archived at https://perma.cc/3282-4WJ2.

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Germany 

Jenny Gesley 

Foreign Law Specialist

SUMMARY The right to asylum is a constitutional right in Germany and granted to everyone who flees 

political persecution. An asylum seeker is allowed to stay in Germany if he or she is 

granted political asylum, refugee status, or subsidiary protection, or if the agency declares 

a deportation prohibition. The Asylum Act and the Residence Act are the two most 

important immigration laws in Germany that provide rules for the admission and handling 

of refugee claims. There have been several amendments to these and other laws due to the 

current refugee crisis. 

 In order to determine whether a person is entitled to refugee status, an in-person interview 

is conducted and country-specific resources and experts consulted. Every applicant over 

the age of fourteen must submit to measures establishing his or her identity and provide 

fingerprints, which are cross-checked with national and European databases and the Visa 

Information System. Refugees are generally housed in reception facilities, which provide 

them with essential items like food, housing, heat, clothing, health care, and household 

items in kind or in the form of vouchers, whereas persons who are housed outside of 

reception facilities primarily receive cash allowances to purchase essential items. 

While an asylum application is pending, applicants are not allowed to leave the area of the 

reception facility without permission. If a refugee has no independent means of 

subsistence, a residence permit may also be restricted territorially. A refugee can obtain 

citizenship after six years of legal residence, rather than eight, and naturalization of 

refugees has also been deemed presumptively in the public interest for purposes of 

discretionary naturalization. 

I. General Background 

The right to asylum is codified in article 16a of the German Basic Law.1 It is granted to 

everyone who flees political persecution. In general, only persecution that is perpetrated by the 

state is relevant.2

 Political persecution is defined as persecution that causes specific violations of 

individual rights and, due to its intensity, excludes the individual from the “general peace 

framework of the state unit.”3 The constitutional right to asylum protects human dignity and 

reflects the view that no state has the right to persecute an individual for his or her political or 

 

1

 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, 

BUNDESGESETZBLATT [BGBL.] [FEDERAL LAW GAZETTE] I at 1, art. 16a, unofficial English translation at

http://www.gesetze-im-internet.de/englisch_gg/basic_law_for_the_federal_republic_of_germany.pdf, archived at

http://perma.cc/RW2X-HD46. 

2

 BUNDESVERFASSUNGSGERICHT [BVERFG] [FEDERAL CONSTITUTIONAL COURT], 80 ENTSCHEIDUNGEN DES 

BUNDESVERFASSUNGSGERICHTS] [BVERFGE] [DECISIONS OF THE FEDERAL CONSTITUTIONAL COURT] 315, 334. 

3 Id. at 334 et seq. 
Refugee Law and Policy: Germany 

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religious beliefs or other personal characteristics that mark him or her as different.4

 Not every 

disadvantage or material hardship supports a right to asylum.5

In addition, Germany is a signatory to the Geneva Convention Relating to the Status of Refugees 

of 19516

 and has implemented it into German law.7 Article 1(A)(2) of the Refugee Convention 

states that a refugee is someone who “owing to 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 to, or owing to such fear, is 

unwilling to avail himself of the protection of that country.” This definition has been 

incorporated into section 3 of the German Asylum Act.8

According to the monthly statistics of the Federal Office for Migration and Refugees, Germany 

has received 425,035 asylum applications between January and November 2015, with 57,816 in 

November alone.9

 The number of asylum applications has more than doubled since 2014—an 

increase of 134.2%.10 Most of the applicants in November came from Syria (30,398 first-time 

applicants), Afghanistan (4,929), and Iraq (4,391).11 In all of 2015, most applicants came from 

Syria, Albania, and Kosovo. The applications of Syrians were approved in 94.8% of the cases, 

whereas the success rates for Albanians and Kosovarians were 0.2% and 0.4%, respectively.12 In 

general, 45.8% of the applications were approved in 2015.13 

 

4 Id. at 333. 

5 Id. at 335. 

6

 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, 

http://www.unhcr.org/3b66c2aa10.pdf, archived at http://perma.cc/K3X4-FA37. 

7

 Gesetz betreffend das Abkommen vom 28. Juli 1951 über die Rechtstellung der Flüchtlinge [Act on the 

Convention of July 28, 1951 Relating to the Status of Refugees], Sept. 1, 1953, BGBL. II at 559, http://www.bgbl. 

de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl253s0559.pdf, archived at 

http://perma.cc/JZJ8-CVKX. 

8

 Asylgesetz [AsylG] [Asylum Act], Sept. 2, 2008, BGBL.I at 1798, § 3, http://www.gesetze-im-internet.de/ 

bundesrecht/asylvfg_1992/gesamt.pdf, archived at http://perma.cc/5UGT-VNNE, unofficial English translation 

available at http://www.gesetze-im-internet.de/englisch_asylvfg/englisch_asylvfg.pdf, archived at

http://perma.cc/E2YA-U7LK. Please note that the English version is only current up to December 2014 and does 

not reflect the name change of the act to Asylum Act. 

9 BUNDESAMT FÜR MIGRATION UND FLÜCHTLINGE [FEDERAL OFFICE FOR MIGRATION AND REFUGEES], AKTUELLE 

ZAHLEN ZU ASYL [CURRENT ASYLUM NUMBERS], Nov. 2015, at 4, http://www.bamf.de/SharedDocs/Anlagen/DE/ 

Downloads/Infothek/Statistik/Asyl/statistik-anlage-teil-4-aktuelle-zahlen-zu-asyl.pdf?__blob=publicationFile, 

archived at http://perma.cc/9MUN-2ZL8. 

10 Id.

11 Id. at 5. 

12 BUNDESAMT FÜR MIGRATION UND FLÜCHTLINGE [FEDERAL OFFICE FOR MIGRATION AND REFUGEES],

ASYLGESCHÄFTSSTATISTIK FÜR DEN MONAT NOVEMBER 2015 at 2 (Dec. 2015), http://www.bamf.de/SharedDocs/ 

Anlagen/DE/Downloads/Infothek/Statistik/Asyl/201511-statistik-anlage-asyl-geschaeftsbericht.pdf?__ 

blob=publicationFile, archived at http://perma.cc/D682-H288. 

13 BUNDESAMT FÜR MIGRATION UND FLÜCHTLINGE, supra note 9, at 10. 
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II. General Rules and Norms for Admission of Refugees and Handling 

Refugee Claims 

The Asylum Act and the Residence Act14 are the two most important immigration laws in 

Germany that provide rules for the admission of refugees and the handling of refugee claims. 

The Asylum Act codifies the process and consequences of granting and denying asylum, whereas 

the Residence Act provides rules concerning the entry, stay, exit, and employment of foreigners 

in general. 

An asylum seeker is allowed to stay in Germany if he or she is seeking protection from political 

persecution or international protection, which includes refugee status and subsidiary protection, 

or if the agency declares a deportation prohibition. If the application is denied, the applicant has 

a duty to leave Germany or will be subject to deportation proceedings. 

A. Application Approved 

The protection against political persecution is codified in article 16a of the Basic Law, as 

discussed above. If the applicant was the victim of political persecution, he or she may be 

granted political asylum under article 16a of the Basic Law. Refugee status under the Geneva 

Convention, codified in section 3, paragraph 1 of the Asylum Act, may be granted for 

humanitarian reasons. Those reasons include the criteria for political asylum and a broad range 

of other humanitarian reasons.15 

Applicants who are awarded political asylum or refugee status receive a three-year residence 

permit (Aufenthaltserlaubnis).16 After those initial three years, a settlement permit 

(Niederlassungserlaubnis) with no time limit is issued if the Federal Office for Migration and 

Refugees does not object.17

Subsidiary protection is codified in section 4, paragraph 1 of the Asylum Act and is awarded to 

applicants who can prove that they are threatened with serious harm in their country of origin. 

“Serious harm” is defined as the “imposition or application of capital punishment, torture or 

inhuman or degrading punishment or treatment, or a serious individual threat to the life or 

integrity of a civilian as a result of indiscriminate violence in an international or internal armed 

conflict.”18 Applicants subject to subsidiary protection are initially granted a residence permit 

for one year, which can be extended for two additional years.19

 

14 Aufenthaltsgesetz [AufenthG] [Residence Act], Feb. 25, 2008, BGBL. I at 162, as amended, § 45a, 

http://www.gesetze-im-internet.de/bundesrecht/aufenthg_2004/gesamt.pdf, archived at http://perma.cc/2PK7-NQL8, 

unofficial English translation available at http://www.gesetze-im-internet.de/englisch_aufenthg/residence_act.pdf, 

archived at http://perma.cc/P5Y3-V27S. Please note that the English translation is only current up to 

September 2013. 

15 Examples of other humanitarian grounds are codified in articles 3a and 3b of the Asylum Act. 

16 Residence Act § 26, para. 1, sentence 2. 

17 Id. § 26, para. 3. 

18 Asylum Act § 4, para. 1, sentence 2. 

19 Residence Act § 26, para. 1, sentence 3. 
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In addition, the government agency may not deport the applicant if there is a prohibition against 

deportation according to section 60, paragraphs 5 or 7 of the Residence Act. Deportation is 

prohibited according to section 60, paragraph 5, if it is inadmissible under the terms of the 

European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 

(ECHR),20 which entered into force for Germany in 1952.21 An applicant may also not be 

deported to a country in which he or she faces a substantial and concrete danger to his or her life, 

limb, or liberty.22 Asylum seekers often invoke this provision when there is a risk of a 

substantial deterioration of health after the return to their country of origin—for example, due to 

post-traumatic stress disorder.23

B. Application Denied 

If an application for asylum is rejected as either unfounded or manifestly unfounded and there is 

no prohibition against deportation, if the asylum application is inadmissible because another 

Member State of the European Union (EU) is responsible for processing the application (Dublin 

procedure), or if the application is withdrawn, a deportation order is issued and the applicant 

must leave Germany.24 The period for departure is either thirty days if the application was 

rejected as without merit25 or one week if it was rejected as manifestly without merit.26

III. Processes for Handling Refugees Arriving at the Border 

A refugee can either register as an asylum-seeker at the border or inside the country. The 

authorities then direct him or her to the closest reception facility. Staff at this reception facility 

issue a certificate of registration as an asylum seeker, which includes personal details and 

a photo.27 

In a next step the authorities determine which German state is responsible for processing the 

asylum application. The distribution among the German states takes place according to the 

 

20 Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR], Nov. 4, 1950, 213 U.N.T.S. 

222, as amended, http://www.echr.coe.int/Documents/Convention_ENG.pdf, archived at http://perma.cc/7RZXDST2. 

21 Gesetz über die Konvention zum Schutze der Menschenrechte und Grundfreiheiten [Act on the Convention for the 

Protection of Human Rights and Fundamental Freedoms], Aug. 7, 1952, BGBL. II at 685, http://www.bgbl.de/xaver/ 

bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl252s0685.pdf, archived at http://perma.cc/ZTL8-

KZ48; AsylG, § 60, para. 5. 

22 Residence Act § 60, para. 7. 

23 FEDERAL OFFICE FOR MIGRATION AND REFUGEES, GERMANY’S ASYLUM PROCEDURE – IN DETAIL:

RESPONSIBILITIES, PROCEDURES, STATISTICS, LEGAL CONSEQUENCES 28 et seq. (Nov. 2014), http://www.bamf.de/ 

SharedDocs/Anlagen/EN/ Publikationen/Broschueren/das-deutsche-asylverfahren.pdf?__blob=publicationFile, 

archived at http://perma.cc/27SD-YPHZ. 

24 Asylum Act §§ 34, 34a, 35. 

25 Id. § 38, para. 1. 

26 Id. § 36, para. 1. 

27 Id. § 63a. 
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EASY system.28 The allocation to a reception facility depends on the capacity available, the 

home country of the asylum seeker, and a quota system.29 Not all branch offices handle all 

countries. In addition, each German state only needs to accept a certain number of applicants 

based on a quota system called Königsteiner Schlüssel. The quota is calculated each year 

according to the tax receipts and population numbers of the German states.30 If the reception 

center in which the asylum seeker registered is not the one that is responsible for handling his or 

her case, he or she has to travel to the responsible center.31 The branch offices of the Federal 

Office for Migration and Refugees in which the asylum seeker must submit his or her application 

are usually close to the reception centers. 

Asylum seekers who enter Germany from safe third countries have no right to asylum and are 

removed to the country they came from.32 Safe third countries are the European Union (EU) 

countries, Norway, and Switzerland.33

Furthermore, at some airports that have the capacity,34 asylum seekers who enter by air are 

subject to the “airport procedure.”35 If the asylum seeker entered without or with false or expired 

papers or via a safe country of origin, the asylum procedure is carried out directly in the airport 

transit area. Safe countries of origin are all EU countries, Albania, Bosnia and Herzegovina, 

Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia.36 The Federal Office for 

Migration and Refugees must decide within two days whether the asylum application is 

justified.37 If the application is denied, the applicant will be denied entry into Germany and 

threatened with deportation if he enters Germany illegally.38 The applicant has the right to an 

attorney and can appeal the decision within three days.39 A judge will issue a ruling in an 

emergency proceeding within fourteen days.40 While the application is pending, the asylum 

seeker must stay in the airport transit area and cannot enter Germany. 

 

28 EASY stands for Erstverteilung von Asylbegehrenden (“initial distribution of asylum seekers”). 

29 Asylum Act § 46, paras. 1, 2. 

30 Id. § 45, para. 1. 

31 Id. § 46. 

32 Id. §§ 26a, para. 1, 34a, para. 1. 

33 Id. § 26a, para. 2, annex I. 

34 Berlin-Schönefeld, Düsseldorf, Frankfurt am Main, Hamburg, and Munich airports. 

35 Asylum Act § 18a. 

36 Id. § 29a in conjunction with annex II. 

37 Id. § 18a, para. 6, no. 1. 

38 Id. § 18a, paras. 2, 3. 

39 Id. §§ 18a, para. 1, sentence 5, 18a , para. 4. 

40 Id. § 18a, paras. 4, 6, no. 3. 
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IV. Adjustments or Amendments to the Refugee Handling Procedure Due to the 

Current Refugee Crisis 

Several amendments to current laws have been adopted in recent months due to the refugee 

crisis. On October 24, 2015, the Act on the Acceleration of Asylum Procedures entered into 

force.41 The Act amended several laws in order to accelerate the asylum process; substitute inkind benefits for cash benefits; reduce the financial burden on the German states and 

municipalities; reform integration policies for refugees; and designate Albania, Kosovo, and 

Montenegro as safe countries of origin. 

On November 1, 2015, the Act to Improve the Housing, Care, and Treatment of Foreign Minors 

and Adolescents entered into force. Its goal is to improve the situation of young unaccompanied 

refugees and provide them with appropriate care.42 

On August 1, 2015, the Act to Redefine the Right to Stay and the Termination of Residence 

entered into force.43 It amended the Residence Act by ordering a ban on entry and residence for 

applicants from safe countries of residence and in case of repeat follow-up applications.44 

Furthermore, the Act grants a residence permit to persons who can prove that they are wellintegrated after a period of eight years and to well-integrated minors after four years.45

Additionally, on February 3, 2016, the German government agreed on a set of stricter asylum 

measures (Asylum Package II), which will now be debated by the German Bundestag. The 

Asylum Package II would accelerate the asylum application process; suspend family 

reunification for refugees with subsidiary protection status for a period of two years; decrease 

asylees’ monthly cash benefits; facilitate deportation; establish a new Federal Police unit to help 

procure replacement documents; improve the safety of refugee minors; and designate Algeria, 

Morocco, and Tunisia as safe countries of origin.46

 

41 Asylverfahrensbeschleunigungsgesetz [Act on the Acceleration of Asylum Procedures], Oct. 20, 2015, BGBL. I at 

1722, http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl115s1722.pdf, 

archived at http://perma.cc/K4YQ-VWNS. 

42 Gesetz zur Verbesserung der Unterbringung, Versorgung und Betreuung ausländischer Kinder und Jugendlicher, 

Oct. 28, 2015, BGBL. I at 1802, http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jump 

To=bgbl115s1802.pdf, archived at http://perma.cc/M75M-U4Y5. 

43 Gesetz zur Neubestimmung des Bleiberechts und der Aufenthaltsbeendigung [Act to Redefine the Right to Stay 

and the Termination of Residence], July 27, 2015, BGBL. I at 1386, http://www.bgbl.de/xaver/bgbl/start.xav? 

startbk=Bundesanzeiger_BGBl&jumpTo=bgbl115s1386.pdf, archived at http://perma.cc/6HSW-G3PM. 

44 Residence Act § 11, para. 7. 

45 Id. §§ 25a, 25b. 

46 For more information, see Jenny Gesley, Germany: Proposed Tightening of Asylum Rules, GLOBAL LEGAL 

MONITOR (Feb. 8, 2016), http://www.loc.gov/law/foreign-news/article/germany-proposed-tightening-of-asylumrules/?loclr=eaglm, archived at http://perma.cc/T5WM-7F5B. 
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A. Act on the Acceleration of Asylum Procedures 

1. Substitution of Benefits in Kind for Cash Benefits 

Before the recent changes, asylum seekers in a reception facility received essential benefits in 

kind and an additional cash allowance (pocket money) for personal use. The pocket money 

totaled €140 per month for a single adult (about US$154) or €126 per month for each of two 

adult recipients living in a common household. According to the amendment, refugees and 

asylum seekers in reception facilities now only receive essential items like food, housing, heat, 

clothing, health care, and household items in kind or in the form of vouchers. Items for personal 

use are also provided in kind, but states retain discretion to provide refugees and asylum seekers 

with cash if necessary.47 Cash allowances cannot be disbursed more than one month 

in advance.48

Asylum seekers who are housed outside of reception facilities primarily receive cash allowances 

to purchase essential items. A single adult recipient receives €216 per month; two adult 

recipients with a common household each receive €194 per month; other adult beneficiaries 

without a household, €174 per month; adolescents between fifteen and eighteen years old, €198 

per month; children between seven and fourteen years old, €157 per month; and children up to 

six years old, €133 per month.49

2. Reduction of the Financial Burden of German States and Municipalities 

Currently, the municipalities that receive refugees and asylum seekers pay for their essential 

needs and are reimbursed by the German states. Starting in 2016, the federal government will 

pay the German states €670 per asylum seeker per month, until the asylum procedure has been 

concluded, in order to reduce the financial burden on the German states. The federal government 

will therefore allocate a provisional sum of approximately €2.8 billion (about US$3.1 billion) to 

the states.50 The sum is only an estimate and will be adjusted as needed at the end of 2016. The 

allocation is based on the assumption that there will be around 800,000 applicants for asylum, 

with an average processing time of five months, and around 400,000 denied applications, for 

which the states will receive another month’s worth of compensation. The allocation also 

includes money to cover expenses for unaccompanied refugee minors.51 

 

47 Asylbewerberleistungsgesetz [AsylbLG] [Asylum Seeker Benefits Act], Aug. 5, 1997, BGBL. I at 2022, § 3, 

para. 1, http://www.gesetze-im-internet.de/bundesrecht/asylblg/gesamt.pdf, archived at http://perma.cc/S9WYG6HM. 

48 Id. § 3, para. 6. 

49 Id. § 3, para. 2. 

50 Finanzausgleichsgesetz [FAG] [Financial Compensation Act], Dec. 20, 2001, BGBL. I at 3955, 3956, as amended, 

§ 1, sentence 5, http://www.gesetze-im-internet.de/bundesrecht/finausglg_2005/gesamt.pdf, archived at 

http://perma.cc/2DBB-QGC7. 

51 DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-DRS.] 18/6185, p. 57. 
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3. Safe Countries of Origin 

The Act on the Acceleration of Asylum Procedures designates Albania, Kosovo, and 

Montenegro as safe countries of origin and adds them to the list contained in appendix II of 

section 29a of the Asylum Act. The designation as a safe country of origin allows the 

accelerated processing of applications from asylum seekers from these countries, because there is 

a presumption that the application is manifestly without merit.52 In such a case, the applicant has 

only one week to leave the country53 instead of the usual thirty days.54

4. Integration Classes and Employment 

The Federal Employment Agency assumes the costs for integration and language classes for 

asylum seekers whose applications are likely to be approved, in order to improve their chances in 

the job market and accelerate their integration into Germany.55

5. Housing for Refugees 

The Act on the Acceleration of Asylum Procedures also dispensed with some building code and 

renewable energy law requirements, in order to facilitate and accelerate the building of new 

accommodations and the repurposing of existing facilities to provide housing for refugees.56

B. Support for Unaccompanied Refugee Minors 

Under current rules, the youth office in the district in which an unaccompanied minor arrives is 

obligated to take him or her into its care.57 Some local communities in central arrival locations 

are therefore disproportionately affected. In order to distribute the burden evenly, the Act to 

Improve the Housing, Care, and Treatment of Foreign Minors and Adolescents created an 

obligation for all German states to receive unaccompanied refugee minors. Refugee minors will 

be distributed throughout Germany by the local youth office according to the quota system, 

Königsteiner Schlüssel.

58 

 

52 Asylum Act § 29a, para. 1. 

53 Id. § 36, para. 1. 

54 Id. § 38, para. 1. 

55 Residence Act § 45a; SOZIALGESETZBUCH DRITTES BUCH [SGB III] [SOCIAL SECURITY CODE THIRD BOOK], 

Mar. 24, 1997, BGBL. I at 594, 595, as amended, §§ 131, 421, http://www.gesetze-im-internet.de/bundesrecht/ 

sgb_3/gesamt.pdf, archived at http://perma.cc/UQ9T-MRDP. 

56 BAUGESETZBUCH [BAUGB] [BUILDING CODE], Sept. 23, 2004, BGBL. I at 2414, as amended, § 246, 

http://www.gesetze-im-internet.de/bundesrecht/bbaug/gesamt.pdf, archived at http://perma.cc/3984-ND8Z; Act on 

the Acceleration of Asylum Procedures art. 6; Erneuerbare-Energien-Wärmegesetz [EEWärmeG] [Renewable 

Energy Heat Act], Aug. 7, 2008, BGBL. I at 1658, as amended, § 9a, http://www.gesetze-im-internet.de/bundes 

recht/eew_rmeg/gesamt.pdf, archived at http://perma.cc/NU7N-ZAXW. 

57 SOZIALGESETZBUCH ACHTES BUCH [SGB VIII] [SOCIAL SECURITY CODE EIGHTH BOOK], Sept. 11, 2012, BGBL. I 

at 2022, as amended, § 42, para. 1, sentence 1, no. 3, § 87, http://www.gesetze-im-internet.de/bundesrecht/ 

sgb_8/gesamt.pdf, archived at http://perma.cc/8WA2-WUHP. 

58 Id. §§ 42b, 42c. 
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In addition, the age of legal capacity to act in an asylum procedure was raised from sixteen to 

eighteen years. That means that every asylum seeker under the age of eighteen is provided with 

a legal guardian to act on his or her behalf and to handle the complex asylum procedure.59

V. Steps to Determine Whether a Person Is Entitled to Refugee Status 

After an application has been submitted, the person seeking asylum is invited to an in-person 

interview.60 No in-person interview is necessary if the applicant is younger than six years of 

age.61 The applicant is informed about his or her rights in a language he or she understands.62 It 

is the duty of the applicant to provide information and proof of persecution or serious harm.63 

That includes information on former residences, travel routes, time spent in other countries, and 

whether a refugee or asylum application has already been initiated or completed in another 

country or in a different location in Germany.64

The case worker makes a decision on the basis of an overall assessment of all relevant findings, 

with an emphasis on the personal interview. In making the decision, the case worker may also 

consult the Federal Office’s Asylum and Migration Information Centre and its Migration Info 

Logistics (MILo) database;65 send individual queries to the German Foreign Office; and obtain 

language and text analyses, physical-technical document examinations, and medical or other 

expert advice.66 The decision on the asylum application is given to the applicant in writing and 

details the reasoning and the legal options for appeal.67

VI. Screening Procedure for Arriving Refugees Being Resettled in the Country 

Every person over the age of fourteen who applies for asylum must submit to measures 

establishing his or her identity.68 For that purpose, the government agency takes photographs of 

the individual and prints of all ten fingers. The asylum seeker is required to cooperate in 

 

59 Residence Act § 80; Staatsangehörigkeitsgesetz [StAG] [Nationality Act], July 22, 1913, REICHS-GESETZBLATT

[RGBL.] [REICH LAW GAZETTE] I at 583, as amended, § 37, para. 1, http://www.gesetze-im-internet.de/ 

bundesrecht/rustag/gesamt.pdf, archived at http://perma.cc/4S9F-5T8F, unofficial English translation available at

http://www.gesetze-im-internet.de/ englisch_rustag/nationality_act.pdf, archived at http://perma.cc/9B2Z-N5PS. 

Please note that the English version is only current up to November 2014. 

60 Asylum Act §§ 24, 25. 

61 Id. §24, para. 1, sentence 6. 

62 Id. § 24, para. 1, sentence 2. 

63 Id. § 25, para. 1, sentence 1. 

64 Id. § 25, para. 1, sentence 2. 

65 The MILo database contains information on countries of origin, asylum and refugee protection, assisted returns, 

and immigration/migration. See Easy Access to Important Documents, FEDERAL OFFICE FOR MIGRATION AND 

REFUGEES, http://www.bamf.de/EN/DasBAMF/IZAsylMigration/MILo/milo-node.html, archived at 

http://perma.cc/37NR-8TFW. 

66 FEDERAL OFFICE FOR MIGRATION AND REFUGEES, supra note 23, at 17. 

67 Asylum Act § 31, para. 1. 

68 Id. § 16. 
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establishing the facts of the case by presenting passports or passport substitutes, as well as all 

necessary certificates and documents that might aid in establishing his or her identity and 

nationality.69 Biometric data obtained from the passport may be compared with the fingerprints 

and photograph obtained from the applicant.70

Furthermore, if there is any doubt with regard to the applicant’s country or region of origin, oral 

statements may be recorded on audio or data media.71 The recording is then analyzed by a 

trained linguist.72

An authenticity check of the certificates and documents submitted in the asylum procedure is 

performed by the unit for physical technical documents (PTU) of the Federal Office for 

Migration and Refugees. Certificates are reviewed by certificate experts specially trained by the 

Federal Criminal Police Office.73

Fingerprints are cross-checked with the national database AFIS; with the European database 

Eurodac, which consists of a computerized central fingerprint database with a National Access 

Point for each EU country; and with the Visa Information System (VIS), which contains 

information about visa applications and the resulting decisions of all EU countries participating 

in the Schengen system. If an applicant has already applied for asylum in another EU Member 

State, it will result in a match in the Eurodac database and the person will be transferred to that 

Member State to conduct the asylum procedure.74

VII. Accommodations and Assistance for Refugees 

As discussed in Part IV, above, refugees and asylum seekers are generally housed in reception 

facilities that provide them with essential items like food, housing, heat, clothing, health care, 

and household items in kind or in the form of vouchers. Items for personal use are also provided 

in kind, but states retain discretion to provide refugees and asylum seekers with cash if 

necessary.75 Asylum seekers who are housed outside of reception facilities primarily receive 

cash allowances to purchase essential items.76

 

69 Id. § 15. 

70 Id. § 16, para. 1a. 

71 Id. § 16, para. 1, sentence 3. 

72 FEDERAL OFFICE FOR MIGRATION AND REFUGEES, supra note 23, at 8. 

73 Id.

74 Id. at 9 et seq. 

75 Asylum Seeker Benefits Act § 3, para. 1. 

76 Id. § 3, para. 2. 
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VIII. Steps Applicants Must Undergo Before Arrival 

Until recently, there was no specific legal basis for the resettlement of refugees. Resettlement 

was done on an ad hoc basis as a pilot project using the general norms of section 23 and 

section 22, sentence 2 of the Residence Act.77 Section 23 applies to groups of foreigners, 

whereas section 22, sentence 2 applies to individuals and single families. All refugees 

considered for resettlement must have been registered and recognized by the Office of the United 

Nations High Commissioner for Refugees (UNHCR). The Federal Office for Migration and 

Refugees conducts individual interviews with the persons selected by the UNHCR to determine 

if they qualify.78

According to section 23, a residence permit can be granted to foreigners from specific states or to 

certain groups of foreigners defined by other means, in accordance with international law, on 

humanitarian grounds or in order to uphold the political interests of the Federal Republic of 

Germany. This decision is made by the Federal Ministry of the Interior in cooperation with the 

German states.79

According to section 22, sentence 2, a residence permit may be granted in accordance with 

international law or on urgent humanitarian grounds, or if the Federal Ministry of the Interior has 

declared that admission is necessary to uphold the political interests of the Federal Republic 

of Germany. 

The Act to Redefine the Right to Stay and the Termination of Residence, which entered into 

force on August 1, 2015,80 amended the Residence Act and codified a specific legal basis for the 

resettlement process.81 According to that provision, the Federal Ministry of the Interior in 

cooperation with the agencies of the German states can order the Federal Office for Migration 

and Refugees to grant a residence permit to particularly vulnerable persons who have been 

designated as resettlement refugees. 

IX. Path to Naturalization 

In Germany, there are two categories of naturalization: naturalization by entitlement82 and 

discretionary naturalization.83 In general, a foreigner must wait eight years before he or she is 

 

77 Humanitarian Admission Programmes at Federal Level, FEDERAL MINISTRY OF THE INTERIOR, 

http://www.bmi.bund.de/EN/Topics/Migration-Integration/Asylum-Refugee-Protection/Humanitarian-admissionprogrammes/Humanitarian-admission-programmes_node.html, archived at http://perma.cc/NFY2-XME9. 

78 Für ein neues Leben in Frieden [For a New Life in Peace], BUNDESMINISTERIUM DES INNEREN [FEDERAL 

MINISTRY OF THE INTERIOR] (Dec. 3, 2014), https://www.bmi.bund.de/SharedDocs/Kurzmeldungen/DE/2014/12/ 

ankunft-resettlement-fluechtlinge-syrien.html, archived at http://perma.cc/6S9A-TQN8. 

79 Residence Act § 23, para. 1. 

80 Gesetz zur Neubestimmung des Bleiberechts und der Aufenthaltsbeendigung [Act to Redefine the Right to Stay 

and the Termination of Residence], July 27, 2015, BGBL. I at 1386, http://www.bgbl.de/xaver/bgbl/start.xav? 

startbk=Bundesanzeiger_BGBl&jumpTo=bgbl115s1386.pdf, archived at http://perma.cc/6HSW-G3PM. 

81 Residence Act § 23, para. 4. 

82 Nationality Act § 10. 
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entitled to apply for citizenship.84 The time spent to process an asylum application counts 

toward that waiting period.85 In addition, if a refugee applies for discretionary naturalization, 

refugee status reduces the discretion of the agency and generally shortens the necessary period of 

legal residency to six years.86

A. Naturalization by Entitlement 

A foreigner has a legal right to be naturalized upon application if he or she fulfills the 

following requirements: 

 Legal residence in Germany for a period of eight years 

 Legal capacity pursuant to section 37, paragraph 1, sentence 1 of the Nationality Act 

 Commitment to the free democratic constitutional order of the Basic Law of the Federal 

Republic of Germany 

 Unrestricted right of residence at the time of naturalization 

 Independent means of supporting him or herself and dependents without resorting to welfare 

payments and unemployment benefits 

 Has lost or given up a former nationality 

 No criminal convictions 

 Adequate German-language skills 

 Knowledge of the legal and social system as well as living conditions in Germany 

(naturalization test)87

If a foreigner has been granted asylum or international protection under Directive 2011/95/EU,88

the time period during which the asylum application was pending counts toward the eight-year 

 83 Id. § 8. 

84Id. § 10. 

85 Asylum Act § 55, para. 3. 

86 Bundesministerium des Inneren [Federal Ministry of the Interior], Vorläufige Anwendungshinweise des 

Bundesministeriums des Innern zum Staatsangehörigkeitsgesetz (StAG) in der Fassung des Zweiten Gesetzes zur 

Änderung des Staatsangehörigkeitsgesetzes vom 13. November 2014 (BGBL. I S. 1714) [Preliminary Application 

Instructions from the Federal Ministry of the Interior on the Nationality Act (StAG) in the Version of the Second 

Act to Amend the Nationality Act Promulgated on November 13, 2014 (Federal Law Gazette I at 1714)] (June 1, 

2015), p. 18, para. 8.1.3.1., http://www.bmi.bund.de/SharedDocs/Downloads/DE/Themen/MigrationIntegration/ 

Staatsangehoerigkeit/Anwendungshinweise_06_2015.pdf;jsessionid=799280883774D4F2769FF8F31C9ACC96.2_c

id295?__blob=publicationFile, archived at http://perma.cc/XZ9P-HW8T. 

87 Nationality Act § 10. 

88 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the 

Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International Protection, for a 

Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection 

Granted, 2011 O.J. (L 337) 9, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011L0095&rid, 

archived at http://perma.cc/Y3RY-TSFG. 
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period required to apply for naturalization.89 If the asylum application was denied, the time 

period generally cannot be counted toward the eight-year period.90

B. Discretionary Naturalization 

If one of the requirements for naturalization is not fulfilled, a foreigner may still be granted 

citizenship if the government agency processing the application determines that certain minimum 

requirements have been met and naturalization is in the public interest.91

Article 34 of the 1951 Convention Relating to the Status of Refugees, which was implemented 

into German law,92 mandates that Contracting States must “make every effort to expedite 

naturalization proceedings.” The Federal Ministry of the Interior has interpreted this provision to 

mean that a period of six years of legal residence in Germany is sufficient for recognized 

refugees.93 Furthermore, the Federal Administrative Court has concluded that the existence of 

article 34 and the fact that the German Basic Law awards asylum seekers special protection94

reduces the discretion of the agency and creates a presumption that naturalization is in the 

public interest.95

X. Monitoring and Movement of Refugees While in the Country 

While the asylum application is pending, the asylum seeker is required to stay in the initial 

reception center responsible for his application for a period of at least six weeks but no longer 

than six months and may not leave the area without permission.96 The geographic restriction 

generally ends after three months or after the applicant is no longer required to stay in the initial 

reception facility.97 

After a period of six months, the refugee will generally be housed in a collective living facility.98 

He or she might be granted the right to an apartment depending on public interest and personal 

 

89 Asylum Act § 55, para. 3. 

90 BUNDESVERWALTUNGSGERICHT [BVERWG] [FEDERAL ADMINISTRATIVE COURT], 128 ENTSCHEIDUNGEN DES 

BUNDESVERWALTUNGSGERICHTS [BVerwGE] 254, 256, para. 10, http://www.bverwg.de/entscheidungen/pdf/ 

290307U5C8.06.0.pdf, archived at http://perma.cc/6M23-NSUE. 

91 Nationality Act § 8. 

92 Gesetz betreffend das Abkommen vom 28. Juli 1951 über die Rechtstellung der Flüchtlinge [Act on the 

Convention of July 28, 1951 Relating to the Status of Refugees], Sept. 1, 1953, BGBL. II at 559, http://www.bgbl. 

de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl253s0559.pdf, archived at 

http://perma.cc/JZJ8-CVKX (click “Uploaded page”). 

93 Bundesministerium des Inneren, supra note 86. 

94 BASIC LAW art. 16a. 

95 BVerwG, 49 BVerwGE 44, 47–48. 

96 Asylum Act §§ 47, para. 1; 56. 

97 Id. § 59a. 

98 Id. § 53. 
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reasons like family reunification.99 The decision is in the discretion of the local 

government agency. 

After an application for asylum has been approved and if the refugee is not able to secure his or 

her own means of subsistence, the government authority may restrict his or her residence permit 

to a specific German state and municipality.100

XI. Role of Subnational Governments 

The Alien Offices in the German states are responsible for all issues concerning residence law, 

such as accommodation, board, and other benefits.101 The Federal Office of Migration and 

Refugees therefore must inform the local agencies if an application for asylum has been made or 

an asylum procedure has been concluded.102

If an asylum application has been denied, the applicant is obligated to leave Germany. The local 

agencies monitor the departure and will instigate deportation proceedings if the applicant does 

not leave voluntarily.103

 

99 Id. § 53, para.1, sentence 2. 

100 Id. § 60. 

101 Residence Act § 71, para. 1. 

102 Asylum Act § 24, para. 3. 

103 Residence Act § 71, para. 5. 
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Greece

Theresa Papademetriou 

Senior Foreign Law Specialist

SUMMARY Greece’s legal system on asylum is based on the Geneva Convention of 1951 and its 1967 

Protocol, and on European Union (EU) legislation on the Common European Asylum 

System. In 2011, the European Court of Human Rights and the Court of Justice of the EU 

found that Greece’s asylum system suffers from “systemic deficiencies,” including lack of 

reception centers, poor detention conditions, and the lack of an effective remedy. Greece 

adopted two action plans and legislation to address the problems. Significant gaps still 

remain, as exposed by the extraordinary migrant crisis of 2015 and as noted by the 

European Commission, which monitors closely Greece’s compliance with EU 

asylum standards. 

 Greece has experienced the brunt of migratory flows during the refugee crisis due to its 

geographical location and as first country of entry pursuant to the Dublin Regulation. The 

crisis has also jeopardized the functioning of Schengen, a free area of movement and 

travel, as some EU countries have re-imposed border controls. Other Schengen Member 

States are considering reintroducing border controls if Greece fails to control the current 

migratory flow. Two relocation plans to transfer 66,000 refugees from Greece to other EU 

Member States are slowly being implemented. The European Commission has 

recommended a number of remedial measures for Greece, including efficient border 

management and implementation of the “hotspot” areas for the proper registration and 

fingerprinting of migrants. 

I. Introduction 

Greece, as a state party to the Geneva Convention on Refugees of 1951 and its 1967 Protocol,1 is 

bound to adhere to the fundamental asylum-law principle of nonrefoulement2

 and thus to provide 

asylum to those who meet the criteria.3

 In addition, as a Member State of the European Union 

(EU) and the Schengen area, Greece is required to comply with the directives and regulations 

that constitute the Common European Asylum System (CEAS) and the Schengen Borders Code, 

 

1

 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, https://treaties.un.org/doc/ 

Publication/UNTS/Volume%20189/v189.pdf, archived at https://perma.cc/A6MN-JB7K; Protocol Relating to the 

Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, archived at https://perma.cc/594H-T6U6. 

2

 The nonrefoulement principle is incorporated into EU primary law in article 78 of the Treaty on the Functioning of 

the European Union, which provides for a Common European Asylum System. Consolidated Version of the Treaty 

on the Functioning of the European Union, 2012 O.J. (C 326) 47, http://eur-lex.europa.eu/legal-content/EN/TXT/ 

PDF/?uri=CELEX:12012E/TXT&from=EN, archived at https://perma.cc/Y5SN-JBT4. 

3

 Law No. 3989/1959, EPHEMERIS TES KYVERNESEOS TES HELLENIKES DEMOKRATIAS [E.K.E.D.] 1959, A:201, 

http://www.et.gr/index.php/2013-01-28-14-06-23/search-laws (in Greek), archived at https://perma.cc/FZL7-A8LQ. 

The 1967 Protocol was ratified by Compulsory Law No. 389/1968, E.K.E.D. 1968, A:125, http://www.et.gr/index. 

php/2013-01-28-14-06-23/search-laws (in Greek), archived at https://perma.cc/MRR9-9BGD. 
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which requires that the external borders be secured.4

 Greece is also obliged to respect the 

binding Charter of Fundamental Rights of the European Union, which recognizes the right 

to asylum.5

 

Following two critical decisions issued in 2011 by the European Court of Human Rights6 and the 

Court of Justice of the European Union,7 which concluded that Greece’s asylum system suffers 

from “systemic deficiencies,” Greece has made a concerted effort to comprehensively reform its 

asylum system, taking such steps as establishing new reception centers, improving poor 

reception conditions (including conditions for those in detention), fingerprinting irregular 

migrants and asylum applicants, ensuring appropriate treatment of unaccompanied minors, and 

ensuring access to an effective remedy against a negative decision. 

Greece has always experienced a large number of migrants attempting to enter the EU illegally 

due to its geographic location8

 and because it is a first country of entry pursuant to Regulation 

(EU) No. 604/2013 (the Dublin Regulation).9

 The unprecedented migratory flow of 2015 

combined with a shift in the migration route coming to Greece from Turkey dramatically tested 

Greece’s already weakened asylum system and brought to the forefront Greece’s incapacity to 

handle the dramatic increase of migrants, fingerprint and register them properly, and return to 

their country of origin economic migrants who crossed Greece’s borders illegally. The EU 

adopted two decisions in 201510 to relocate at least 66,400 persons from Greece to other Member 

 

4

 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a 

Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), as 

amended, 2006 O.J. (L 105) 1, http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006R0562, archived

at https://perma.cc/3EZC-X82W. 

5

 Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 391, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN, archived at https://perma.cc/SU9H-GRDL. 

6

 M.S.S. v. Belgium and Greece, App. No. 30696/09 (Eur. Ct. H.R. Jan. 21, 2011), 

http://www.asylumlawdatabase.eu/en/content/ecthr-mss-v-belgium-and-greece-gc-application-no-3069609 (scroll 

down and click PDF file), archived at https://perma.cc/ELZ3-YG2U. 

7

 Joined Cases C‐411/10 & C‐493/10 (Ct. J. EU – Grand Chamber, Dec. 21, 2011), http://curia.europa.eu/juris/ 

document/document.jsf;jsessionid=9ea7d0f130d543fe293820c7418e9d1c98ec1611a8d0.e34KaxiLc3eQc40LaxqMb

N4OchaKe0?text=&docid=117187&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=342818, 

archived at https://perma.cc/JB8F-7YTH. 

8

 As of February 25, 2016, the International Organization for Migration (IOM) estimated that close to one million 

migrants had arrived in Greece since January 2015, and that of this number 120,369 migrants had reached Greece 

during the first two months of 2016. Press Release, IOM, Mediterranean Migrant Arrivals in 2016 Near 130,000; 

Deaths Reach 418 (Mar. 1, 2016), https://www.iom.int/news/mediterranean-migrant-arrivals-2016-near-130000-

deaths-reach-418, archived at https://perma.cc/5NHL-5JJ8. 

9

 Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the 

Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for 

International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person, as 

amended, 2013 O.J. (L 180) 31, http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013R0604, archived 

at https://perma.cc/8AE2-7JNN. 

10 Council Decision (EU) 2015/1601 of 22 September 2015 Establishing Provisional Measures in the Area of 

International Protection for the Benefit of Italy and Greece, 2015 O.J. (L 248) 80, http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=uriserv:OJ.L_.2015.248.01.0080.01.ENG&toc=OJ:L:2015:248:TOC, archived at

https://perma.cc/RJ8W-8WP8. 
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States over a period of two years.11 Implementation of the relocation plan is moving slowly, 

mainly due to resistance from other EU Member States.12

Greece’s progress in raising its asylum regime up to EU and Council of Europe standards is 

being monitored by a number of institutions and bodies—first, by the European Commission, 

which, as the EU’s enforcement body, has instituted several infringement proceedings against 

Greece for failing to transpose two directives;13 for maintaining insufficient reception facilities; 

and for poor reception conditions, especially those for vulnerable groups including children.14 

The Commission also follows closely the implementation of its recommendations. In February 

2016, the Commission adopted the Schengen Evaluation Report on Greece and suggested a 

number of recommendations to address deficiencies in external border management.15 In 

addition, the Committee of Ministers of the Council of Europe, which supervises implementation 

of European Court of Human Rights (ECHR) decisions, monitors Greece’s implementation of 

the decisions of the ECHR.16 Finally the regional office of the United Nations High 

Commissioner for Refugees (UNHCR), in compliance with its mandate arising from the Geneva 

Convention, tracks the general implementation of obligations arising from the Convention.17 

 

11 Council Decision (EU) 2015/1523 of 14 September 2015 Establishing Provisional Measures in the Area of 

International Protection for the Benefit of Italy and of Greece, 2015 O.J. (L 239) 146, http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=uriserv:OJ.L_.2015.239.01.0146.01.ENG&toc=OJ:L:2015:239:TOC, archived at

https://perma.cc/GC58-UTGD. 

12 As of February 8, 2016, only 218 people had been relocated from Greece, and 279 from Italy. Communication 

from the Commission to the European Parliament and the Council on the State of Implementation of the Priority 

Actions under the European Agenda on Migration, at 11, COM(2016) 85 final (Feb. 10, 2016), 

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementationpackage/docs/managing_the_refugee_crisis_state_of_play_20160210_en.pdf, archived at https://perma.cc/4K7BCXG8. 

13 Greece has not transposed the following two directives regarding asylum: Directive 2013/32/EU of the European 

Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International 

Protection (Recast), 2013 O.J. (L 180) 60, http://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A320 

13L0032, archived at https://perma.cc/A7KQ-VNRQ; and Directive 2013/33/EU of the European Parliament and of 

the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection 

(Recast), 2013 O.J. (L 180) 96, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0096: 

0116:EN:PDF, archived at https://perma.cc/P94U-FRRB. 

14 Commission Recommendation of 2/10/2016 Addressed to the Hellenic Republic on the Urgent Measures to Be 

Taken by Greece in View of the Resumption of Transfers Under Regulation 604/2013, C(2016) 871 final (Feb. 10, 

2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposalimplementation-package/docs/commission_recommendation_addressed_to_the_hellenic_republic_2016 

0210_en.pdf, archived at https://perma.cc/L4ZG-3RAK. 

15 Press Release IP/16/211, European Commission, Commission Adopts Schengen Evaluation Report on Greece and 

Proposes Recommendations to Address Deficiencies in External Border Management (Feb. 16, 2016), 

http://europa.eu/rapid/press-release_IP-16-211_en.htm, archived at https://perma.cc/BNB7-SCE9. 

16 Council of Europe, Council of Ministers, 1243rd Meeting Item H46-8, M.S.S. and Rahimi Groups v. Greece 

(App. Nos. 30696/09, 8687/08), Supervision of the Execution of the Court’s Judgments (Dec. 8–9, 2015), 

https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2015)1243/H46-8&Language=lanFrench&Ver=original& 

Site=&BackColorInternet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FFC679, archived at 

https://perma.cc/6U2G-JYD8. 

17 UNHCR, Building on the Lessons Learned to Make the Relocation Schemes Work More Effectively: UNHCR’s 

Recommendations (Jan. 2016), http://www.unhcr.org/569fad556.pdf, archived at https://perma.cc/3FFA-A9A3. See 
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II. Legal Framework and Government Actions 

A. Government Measures 

The Greek Ministry of Public Order and Citizen Protection has submitted two plans to the 

European Commission and the Council of the EU as part of its efforts to tackle the issues related 

to asylum, including creating first-reception centers, establishing screening procedures, 

addressing detention conditions, and improving facilities for families with children and for 

vulnerable groups. The first Plan, submitted in 2010, failed to produce a successful outcome, 

except that it prompted the adoption of the Law 3907/2011, which led to the creation of muchneeded services. That law created an Asylum Service, composed of a Central Office located in 

Athens and regional asylum offices, a First Reception Service, and an Appeals Authority.18 A 

revised Action Plan on Asylum and Migration Management was presented to the European 

Commission in January 2013.19 The revised plan was based on two salient components: (a) to 

effectively ensure access to international protection through the opening of new reception 

centers, and (b) to establish an effective system of border management and returns. 

B. 2013 Procedure for Granting International Protection 

As of June 2013, applications for international protection fall within a new procedure established 

by Presidential Decree 113/2013.20 Every foreigner or stateless person has the right to submit an 

application for international protection, provided that he or she meets the criteria of the Geneva 

Convention and applicable national law or qualifies for subsidiary protection.21 The competent 

national authorities of first reception are obliged to inform the applicants of such rights. 

Decisions are made by the Asylum Service on a case-by-case basis; the review is required to be 

an objective, unbiased, and nondiscriminatory review of the facts. When the application is filed 

 also, UNHCR, “Greece as a Country of Asylum”: UNHCR’s Recommendations (Apr. 6, 2015), http://www.asylum 

lawdatabase.eu/sites/www.asylumlawdatabase.eu/files/aldfiles/UNHCR_Greece_recommendations5524e72b4.pdf, 

archived at https://perma.cc/5QZL-RUHD. In its December 2014 report the UNHCR noted that the Greek asylum 

system still had deficiencies and recommended that other countries not send refugees to Greece for 

asylum registration. UNHCR, Greece as a Country of Asylum: UNHCR Observations on the Current Asylum 

System in Greece 37 (Dec. 2014), http://www.refworld.org/docid/54cb3af34.html, archived at 

https://perma.cc/528U-8P59. 

18 Law No. 3907/2011 on Establishing an Asylum Service, First Line Reception Office, and Harmonization with 

Directive 2008/115/EC on Common Standards and Procedures for the Return of Illegally Staying Third-Country 

Nationals and Other Provisions arts. 1, 6, 7, E.K.E.D., Jan. 26, 2011, A:7, http://www.et.gr/index.php/2013-01-28-

14-06-23/search-laws (in Greek), archived at https://perma.cc/QTL6-YLQR. 

19 MINISTRY OF PUBLIC ORDER AND CITIZEN PROTECTION, GREEK ACTION PLAN ON ASYLUM AND MIGRATION 

MANAGEMENT, EXECUTIVE SUMMARY (Dec. 2012), http://www.europarl.europa.eu/meetdocs/2009_2014/

documents/libe/dv/p4_exec_summary_/p4_exec_summary_en.pdf, archived at https://perma.cc/Z85E-89ZF. 

20 Presidential Decree No. 113/2013 on the Establishment of a Common Procedure for Identifying the Refugee 

Status of Foreigners and Stateless Persons or Subsidiary Protection in Compliance with Directive 2005/85/EC and 

Other Provisions, E.K.E.D., June 13, 2013, A:146, http://www.et.gr/index.php/2013-01-28-14-06-23/search-laws (in 

Greek), archived at https://perma.cc/4KH9-QUZV. 

21 Id. art. 4. 
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by an unaccompanied minor, then the appropriate authorities must appoint a guardian, in 

accordance with Presidential Decree 220/2007.22 

The Asylum Service is composed of the Central Asylum Service, whose role is to supervise and 

monitor the process of registration and overall progress, or the lack thereof, of applications for 

international protection, and by the regional asylum offices which are in charge of registering 

and fingerprinting applicants. There are eleven regional asylum offices in Greece (seven 

regional offices and four mobile asylum units).23 The largest regional office, which started 

operations in June 2013, is in Attica. Other regional offices began operations in 2014 and 2015 

to accommodate the ever-increasing number of refugees. In addition, a new asylum office was 

established on the Island of Samos.24 

Applicants have the right to stay in Greece during the application process. Applicants may not 

be detained solely because they requested international protection. Detention of minors is 

generally not allowed, although minors who have been separated from their family or 

unaccompanied minors are kept in detention until their relatives are located, or until they are 

housed in appropriate facilities.25 Legal aid is provided to those applicants who need it, in 

accordance with Law No. 3226/2004.26 The decisions on granting or withdrawing international 

protection are forwarded to the local office of the United Nations High Commissioner for 

Refugees (UNHCR).27 The local office has the right to request additional information. Greek 

authorities must provide to the UNHCR all statistical data requested on the condition of refugees 

and on implementation of the Geneva Convention, as well as all existing legislation on refugees, 

in compliance with article 35, paragraph 2 of the Convention.28 

1. First Instance 

Law 3907/2011 established the Asylum Service as the competent state authority to examine 

applications for international protection in the first instance. The Review Authorities examine 

the applications for international protection following either a regular or accelerated procedure. 

During the review, the applications of the following categories of persons have priority: (a) 

vulnerable persons, (b) those in detention or in transit, (c) persons whose applications are prima 

facie substantiated, (d) those whose applications are manifestly unfounded, and (e) persons who 

 

22 Presidential Decree No. 220/2007, art. 19, para. 1, E.K.E.D., Nov. 13, 2007, A:251, http://www.et.gr/index. 

php/2013-01-28-14-06-23/search-laws (in Greek), archived at https://perma.cc/6H7V-XJ9F. 

23 Asylum Service, MINISTRY OF INTERIOR AND ADMINISTRATIVE ORGANIZATION, http://asylo.gov.gr/?page_id=25

(in Greek; last visited Mar. 11, 2016), archived at https://perma.cc/Z4QR-FKJ4. 

24 Commission Recommendation of 2/10/2016, supra note 14, pmbl. para. 16. 

25 Presidential Decree No. 113/2013, art. 12. 

26 Law No. 3226/2004, E.K.E.D., Feb. 4, 2004, Α:24, http://www.et.gr/index.php/2013-01-28-14-06-23/search-laws

(in Greek), archived at https://perma.cc/2RWM-MFCA. 

27 Presidential Decree No. 113/2013, art. 14. 

28 Convention Relating to the Status of Refugees, supra note 1, art. 35(2). 
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are deemed by the police in substantiated decisions to be a danger to national security and 

public order.29 

2. Accelerated Procedures 

Accelerated procedures are applied to people who (a) come from a safe country of origin, (b) 

have submitted manifestly unfounded applications, (c) have presented false information or 

documents, or (d) made another asylum application in another Member State with different 

personal data.30 Applications must be reviewed within six months.31 Applicants are subject to 

personal interviews through interpreters by staff who have experience in such matters and who 

are expected to maintain confidentiality.32 

Greece recognizes as safe countries of origin those third countries where (a) there is no threat to 

life or freedom based on religion, race, ethnicity, participation in a particular social group, or 

political convictions; (b) there is no danger to the life of the applicant; and (c) the 

nonrefoulement principle of the Geneva Convention is followed.33 Applications filed by 

nationals of safe countries of origin are fast-tracked and such persons are sent back to their 

countries of origin. 

3. Border Procedure 

If applicants apply at the border, they have the right to be informed of their rights, including the 

right to an interpreter and the right to consult a lawyer at their own expense. If no decision is 

made within twenty-eight days from the day of their application, they have the right to enter 

Greece in order to have their case reviewed.34

4. Detention 

Pursuant to Decree 113/2013, an applicant in need of international protection or a stateless 

person must not be kept in detention for the sole reason that the person applied for international 

protection and entered the country illegally.35 A person may be kept in detention until his/her 

documentation is confirmed or in case the person is deemed to be a danger to the public or to 

national security.36 No one can be detained for more than three months.37 The Greek 

government has closed some of the detention facilities that had extremely bad conditions. 

 

29 Law 3907/2011, arts. 1-3. 

30 Presidential Decree 113/2013, art. 16, para. 4. 

31 Id. art. 16, para. 1. 

32 Id. art. 17, paras. 1 & 5. 

33 Id. art. 20. 

34 Id, art. 24. 

35 Id. art. 12, para. 1. 

36 Id. art. 12, para. 2(a) & (b). 

37 Id. art. 12, para. 6. 
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5. Right to Appeal 

The applicant has the right to appeal to the examining authorities a decision that denies 

international protection or rejects an accelerated procedure.38 The Appeals Authority is a body 

within the Ministry of Public Order and Citizens’ Protection established by Law 3907/2011. It is 

staffed by civil servants and headed by a Director who is under the supervision of the Minister of 

Public Order and Citizens’ Protection. The Authority is mandated to facilitate the work of the 

appeals committees, which examine asylum cases on appeal. The rules of procedure of the 

Appeals Authority are set forth in Ministerial Decision 334/2014.39 

Since September 2015, when the mandate of the Appeals Committees expired, persons have 

been able to file appeals against first-instance negative decisions, but such applications cannot be 

processed. Therefore, there is currently no functioning system for an effective remedy. As the 

Commission noted, the lack of an appeal undermines the effective implementation of the 

relocation procedure, in which an applicant submits an appeal against a relocation or 

transfer decision.40

6. Reception Conditions 

In 2015, Greece undertook the responsibility to create additional reception capacity for 30,000 

people, provide rent subsidies to those asylum seekers who could not be accommodated in 

reception centers, and host an additional 20,000 families with the assistance of the UNHCR.41 In 

its 2016 Recommendation the Commission acknowledged that improvements have been made 

concerning the increase in capacity of reception centers, but stated that reception capacity is still 

“insufficient.”42 The Commission also urged Greece to ensure that the reception conditions in 

both open and closed reception accommodations, and access to health care, are comparable to the 

standards laid down by Directive 2013/33/EU. It recommended that Greece ensure that 

reception facilities are sufficiently staffed to handle refugees43 and added that maintenance of the 

reception conditions should be funded either from the national budget or EU funds, if possible.44

 

 

38 Id. art. 25, para. 1. 

39 Ministerial Decision No. 334/2014 on the Rules of Procedure of the Appeals Authority, E.K.E.D., Jan. 16, 2014, 

B:63, http://www.et.gr/index.php/2013-01-28-14-06-23/search-laws (in Greek), archived at https://perma.cc/8GA8-

2K9Y. 

40 Commission Recommendation of 2/10/2016, supra note 14, pmbl. para. 18. 

41 Id., pmbl. para. 12. See also Press Release, European Commission, European Commission and UNHCR Launch 

Scheme to Provide 20,000 Reception Places for Asylum Seekers in Greece (Dec. 15, 2015), http://europa.eu/rapid/ 

press-release_IP-15-6316_en.htm, archived at https://perma.cc/92UR-X4YF. 

42 Commission Recommendation of 2/10/2016, supra note 14, pmbl. para. 17. 

43 Id., pmbl. para. 17 & Recommendation para. 1. 

44 Id., pmbl. para. 17. 
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C. Criteria for Recognition of Refugees and Those Eligible for Subsidiary Protection 

Presidential Decree 141/201345 transposed the provisions of Directive 2011/95/EC, which 

determines the standards for the qualification of third-country nationals or stateless persons who 

qualify as refugees or are eligible for subsidiary protection.46 Refugee status is given to a thirdcountry national or a stateless person who meets the criteria established by Presidential Decree 

141/2013.47 

1. Criteria for Refugee Status 

To be granted refugee status, an applicant must meet the following criteria: 

 The applicant must face a well-founded fear of persecution within the meaning of article 1A 

of the Geneva Convention. 

 The grounds for persecution must be related to the applicant’s race, religion, nationality, 

political opinion, or membership in a particular social group. 

 A causal link must exist between the well-founded fear of persecution on the grounds of 

one’s race, religion, nationality, political opinion, or membership in a particular social group 

and the acts of persecution. 

 The acts of persecution may take a variety of forms, such as physical or mental violence, 

including sexual violence, and in the case of a minor may also include acts of a genderspecific or child-specific nature.48

2. Subsidiary Protection Status 

In order to be granted subsidiary protection status, there must be substantial grounds to believe 

that an applicant who does not otherwise qualify for refugee status would face a real risk of 

suffering serious harm if returned to his/her country of origin. The qualification for subsidiary 

protection from a “real risk of suffering serious harm” includes the death penalty or execution, 

torture or other inhuman or degrading treatment or punishment, or a serious and individualized 

threat to persons due to violence in the case of internal armed conflict.49 

 

45 Presidential Decree No. 141/2013, E.D.E.K., Oct. 21, 2013, A:226, http://www.et.gr/index.php/2013-01-28-14-

06-23/search-laws (in Greek), archived at https://perma.cc/3YPN-D2W5. 

46 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the 

Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a 

Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection 

Granted, 2011 O.J. (L 337) 9, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0095, archived 

at https://perma.cc/E9GT-BA63. 

47 Presidential Decree No. 141/2013, art. 12, paras. 1 & 2. 

48 Id. arts. 9 & 10. 

49 Id. art. 15. 
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The applicant must provide information pertaining to his/her age, background, country of origin, 

relatives, travel documents (if any), and reasons for applying for international protection. Each 

application is examined individually.50

D. Rights of Refugees and Beneficiaries of Subsidiary Protection 

Greek law grants a number of rights and benefits to persons granted refugee status or 

subsidiary protection. 

1. Family Unity 

Greek asylum authorities are required to ensure the family unity of those who are recognized as 

refugees or beneficiaries of subsidiary protection. The families of such persons acquire the same 

status as the applicant, unless they do not wish to have such status.51

2. Residence Permit 

Those who have been recognized as refugees or beneficiaries of secondary international 

protection are granted a residence permit for three years, which is renewable at the request of the 

person concerned,52 except for those who pose a threat to national security or to public safety due 

to conviction for an especially serious crime.53 The family members of refugees or beneficiaries 

of international protection are also granted a residence permit. Issuance and renewal of 

residence permits are subject to the same rules.54

3. Travel Documents 

Recognized refugees are given travel documents to be able to travel abroad pursuant to the 

sample contained in the Annex of the Geneva Convention, unless reasons exist for banning the 

travel of the person concerned.55 The passport is granted by the Passport Office of the Greek 

Police and the required documents, duration, and renewal are determined by Law 3103/2003.56 

 

 

50 Id. art. 4. 

51 Id. art. 23, paras. 1 & 2(a). 

52 Id. art. 24. 

53 Id. art. 21, para. 2. 

54 Id. art. 23, para. 4. 

55 Id. art. 25. 

56 Law No. 3103/2003, E.K.E.D. Dec. 2, 1992, A:194, art. 1, para. 3, http://www.et.gr/index.php/2013-01-28-14-06-

23/search-laws (in Greek), archived at https://perma.cc/WT5F-ATXN. 
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4. Education 

Minors who have been recognized as refugees must have access to education. In addition, adults 

have access to educational training and development under the same terms and conditions 

as nationals.57

5. Social Welfare 

Beneficiaries of international protection have access to social welfare under the same conditions 

as nationals.58

6. Access to Employment 

Those who are recognized as persons in need of international protection have access to 

employment, either salaried or independent, pursuant to Presidential Decree 189/1998.59 The 

existing legislation on remuneration, terms of employment, training, and educational 

opportunities also apply to those who have been recognized as refugees.60 In practice, asylum 

seekers face a stark reality in Greece with regard to access to the labor market, due to the 

economic crisis and the overall absence of available job opportunities. As of November 2015, 

the unemployment rate in Greece was 24.6% overall, and 48% for young persons under twentyfive years of age. In both instances, Greece has the the highest unemployment rate in the EU.61

7. Health Care 

Recognized refugees or persons with subsidiary protection status have the right to health care on 

the same basis and conditions as nationals.62 Those who have special needs, such as pregnant 

women, the elderly, unaccompanied children, people who have been subject to torture or other 

inhuman or degrading treatment, or persons with disabilities, as well as trafficking victims and 

those who come from conflict areas, are entitled to sufficient medical care, including 

psychological care and support, under the same conditions as nationals.63 Presidential Decree 

220/2007 provides for free healthcare services for all asylum seekers regardless of whether they 

are hosted in the reception facilities or not. However, access is conditioned depending on the 

economic status of the asylum seekers. In the case of asylum seekers with disabilities, a monthly 

allowance is granted subject to Health Committee approval.64

 

57 Presidential Decree No. 141/2013, art. 28. 

58 Id. art. 29. 

59 Presidential Decree No. 189/1998, E.K.E.D., June 25, 1998, A:180, http://www.et.gr/index.php/2013-01-28-14-

06-23/search-laws (in Greek), archived at https://perma.cc/WZR4-NFME. 

60 Presidential Decree No. 141/2013, art. 27. 

61 Unemployment Statistics, EUROSTAT (Jan. 2016), http://ec.europa.eu/eurostat/statistics-explained/index.php/ 

Unemployment_statistics, archived at https://perma.cc/2GAX-DVMR. 

62 Presidential Decree No. 141/2013, art. 31. 

63 Id. art. 31, para. 2. 

64 Presidential Decree No. 220/2007, art. 12. 
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8. Unaccompanied Minors 

Unaccompanied minors are provided with extra care and protection by the appropriate Greek 

authorities. Greece has allocated 402 reception facilities to accommodate unaccompanied 

minors.65 A joint ministerial decision, which was adopted in February 2016, provides the 

procedure to determine whether an applicant is a minor.66 A guardian or a representative is 

appointed to represent the interests of the child and accommodations are provided either with 

family members, foster families, or special hospitality centers for minors.67 The European 

Commission’s 2016 Recommendation to the Greek government asserted that the current 

guardianship system is problematic, since public prosecutors are appointed to represent minors 

and do not have appropriate resources to handle the large number of minors who need a 

guardian. The Commission also noted the lack of a guardianship system within the Greek legal 

system to enable prosecutors to appoint permanent guardians.68 

9. Repatriation 

The appropriate Greek authorities are required to provide assistance to those refugees and those 

who possess subsidiary protection to return to their countries of origin, if they so wish.69 

III. Schengen Implications 

At the peak of the migrant crisis in 2015, a number of EU Members resorted to re-imposing 

internal border controls to curb the number of migrants entering their country. Under the 

Schengen Borders Code, such measures are allowed temporarily.70 However, the border controls 

adversely affected the free movement of persons and endangered the entire Schengen system. 

In November 2015, the Commission, using its authority under the Schengen evaluation 

mechanism,71 sent a team of experts to make an unannounced onsite evaluation visit to Greek 

 

65 Secretariat of the Committee of Ministers, Communication from the Authorities (02/09/2016) Concerning the 

Case of M.S.S. Against Greece (Application 030696/09), DH-DD (2016)182 (Feb. 23, 2016), https://wcd.coe.int/ 

com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2892073&SecMode=1&DocId

=2360486&Usage=2, archived at https://perma.cc/KCT5-FL8Q. 

66 Joint Ministerial Decision of the Interior, Administrative Reorganization, and Health, No. 1982/2016, on 

Determining Whether an Applicant is a Minor, B:335 (Feb. 16, 2016), http://www.et.gr/index.php/2013-01-28-14-

06-23/search-laws (in Greek), archived at https://perma.cc/6P98-QQ9B. 

67 Presidential Decree No. 141/2013, art. 35. 

68 Commission Recommendation of 2/10/2016, supra note 14, pmbl. para. 21. 

69 Presidential Decree No. 141/2013, art. 36. 

70 Regulation (EU) No. 1051/2013 of the European Parliament and of the Council of 22 October 2013 Amending 

Regulation (EC) No. 562/2006 in Order to Provide for Common Rules on the Temporary Reintroduction of Border 

Control at Internal Borders in Exceptional Circumstances, 2013 O.J. (L 295) 1, http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=celex%3A32013R1051, archived at https://perma.cc/LG5S-YFB5.

71 Council Regulation (EU) No. 1053/2013 of 7 October 2013 Establishing an Evaluation and Monitoring 

Mechanism to Verify the Application of the Schengen Acquis and Repealing the Decision of the Executive 

Committee of 16 September 1998 Setting up a Standing Committee on the Evaluation and Implementation of 
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sea-border sites (Chios and Samos Islands) and some land-border sites, to examine the 

functioning and application of Schengen rules by Greece. The resulting Schengen Evaluation 

Report prepared by the Commission on February 2, 2016, acknowledged the efforts made and 

the measures taken by the Greek government to handle the migrant crisis, but stated that “the 

overall functioning of the Schengen area is at serious risk” and made a number of 

recommendations to ensure that Greece exercises effective control of its external borders, in 

accordance with Schengen rules.72

The Evaluation Report identified several deficiencies with Greece’s asylum system concerning 

the registration procedure, surveillance of sea borders, border-check procedures, human 

resources and training, and infrastructure and equipment.73 With regard to registration 

procedures, the Commission recommended that Greece take, inter alia, the following measures: 

 Improve the quality of the “temporary stay” documents by inserting security features to make 

it difficult for migrants to falsify documents 

 Increase the staff of the Hellenic Police responsible for registration 

 Provide the necessary accommodation facilities during the registration process and a 

sufficient number of fingerprinting scanners to ensure fingerprints of all irregular migrants, 

pursuant to the Eurodac Regulation74 

As far as border surveillance, the Report recommended that Greece improve its border 

surveillance between Greece and Turkey to enable it to detect all vessels in order to apprehend 

persons who cross illegally.75

Greece is required to draft an action plan to address the deficiencies cited in the Commission’s 

report, forward this plan to the Commission and the Council, and report back on implementation 

of the plan.76

 Schengen, art. 4, 2013 O.J. (L 295) 27, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013: 

295:0027:0037:EN:PDF, archived at https://perma.cc/7US7-F54W. 

72 Council Implementing Decision Setting Out a Recommendation on Addressing the Serious Deficiencies Identified 

in the 2015 Evaluation on the Application of the Schengen Acquis in the Field of Management of the External 

Borders by Greece, Doc. No. 5985/16, Interinstitutional File No. 2016/0035 (NLE) (Feb. 12, 2016), http://data. 

consilium.europa.eu/doc/document/ST-5985-2016-INIT/en/pdf, archived at https://perma.cc/ZZL5-3VLC. 

73 Id., pmbl., para. 6. 

74 Id., Recommendations, paras. 3–5. 

75 Id. para. 12. 

76 Id., pmbl., para. 8. 
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IV. Case Law on Asylum System 

A. M.S.S. v. Belgium and Greece 

The case of M.S.S. v. Belgium and Greece involved living conditions in reception centers in 

Greece.77 An Afghan national entered the EU through Greece and then went to Belgium where 

he applied for asylum. On the basis of the Dublin Regulation he was sent back to Greece as the 

first country of entry into the EU, where he was kept in detention in a small room with twenty 

other detainees with limited access to restroom facilities. In 2011, the Grand Chamber of the 

ECHR held that both Belgium and Greece had violated the European Convention on Human 

Rights. It held that Belgium infringed article 3 of the Convention, first, by exposing the 

applicant to the risks arising from the deficiencies in the asylum procedure in Greece, since the 

Belgian authorities knew or ought to have known that the applicant had no guarantee that his 

asylum application would be seriously examined by the Greek authorities, and second, by 

knowingly exposing him to detention and living conditions that amounted to degrading 

treatment.78 The Court also found that Greece violated article 3, as well as article 13 of the 

Convention on the right to an effective remedy, because of the harsh living conditions and 

inadequate asylum procedures in the country.79 

B. N.S. v. Secretary of State for the Home Department 

In N.S. v. Secretary of State for the Home Department,

80 N.S., an Afghan national, was arrested 

in Greece on September 24, 2008, and placed in detention for entering Greece illegally. He was 

ordered to leave Greece within thirty days and was subsequently expelled to Turkey. He escaped 

from Turkey and went to the United Kingdom, where he claimed asylum. N.S. was informed 

that, in accordance with the requirements under Regulation No. 343/2003, he was to be 

transferred to Greece on August 6, 2009. He challenged that decision. 

The case came before the Court of Justice of the European Union and was joined with a similar 

case (Case C-493/10) involving five asylum seekers in Ireland who opposed being transferred to 

Greece for examination of their asylum applications. All of the claimants traveled through 

Greece and were arrested there for illegal entry. They left Greece without applying for asylum 

and traveled to Ireland, where they applied for asylum.81

 

77 M.S.S. v. Belgium and Greece, App. No. 30696/09 (Eur. Ct. H.R., Jan. 21, 2011), http://www.asylumlaw 

database.eu/en/content/ecthr-mss-v-belgium-and-greece-gc-application-no-3069609 (scroll down and click PDF 

file), archived at https://perma.cc/ELZ3-YG2U. 

78 Id. paras. 358, 360, 367. 

79 Id. 

80 Joined Cases C‐411/10 and & C‐493/10 (Eur. Ct. Justice (Grand Chamber), Dec. 21, 2011), 

http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d543fe293820c7418e9d1c98ec1611a8d0.

e34KaxiLc3eQc40LaxqMbN4OchaKe0?text=&docid=117187&pageIndex=0&doclang=en&mode=lst&dir=&occ=f

irst&part=1&cid=342818, archived at https://perma.cc/JB8F-7YTH. 

81 Id. paras. 51–52. 
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The Court held that EU law precludes the Member States from making a “conclusive 

presumption” that the Member State responsible for reviewing an asylum application, in 

accordance with Dublin rules, observes the fundamental rights of the European Union. 82 It stated 

that under article 4 of the Charter of Fundamental Rights of the European Union, Member States 

may not transfer an asylum seeker to the “Member State responsible” within the meaning of the 

Dublin Regulation where they are aware of systemic deficiencies in the asylum procedure and 

the reception conditions such that the asylum seeker would face a real risk of being subjected to 

inhuman or degrading treatment.83

As a result of these cases, EU Member States suspended transfers to Greece under the 

Dublin Regulation.84

V. EU Funding on Asylum 

At the request of Greece, the European Asylum Support Office (EASO) has provided financial 

assistance and deployed Asylum Support Teams to Greece to establish new asylum services and 

to assist with the reception of vulnerable persons.85 Due to an increased number of migrants 

entering the EU through Greece, Greece made a further request to the EASO for Special Support, 

and support will be provided until the end of May 2016.86

The Commission has allocated a large amount of European Union funding for the period 2014–

2020 to assist Greece with implementation of national measures in the field of asylum and 

migration. The Commission, through the Asylum, Migration and Integration Fund, provided a 

total of €294.5 million (about US$328 million) to Greece, and under the Internal Security Fund – 

Borders and Visas a total of another €214.8 million (about US$240 million). A further €133 

million (about US$149 million) has been awarded to Greece as emergency assistance since 2014. 

In addition, significant funding was provided to Greece under the European Refugee Fund in the 

years 2008–2013, including emergency funding of more than €50.6 million (about 

US$56.5 million).87

VI. Pending Issues 

A. Hot Spots 

One of the requirements imposed on Greece by the Commission was the construction of “hot 

spot” registration centers in order to ensure the proper registration and identification of migrants 

before their transfer to relocation areas with the objective of transferring them to other countries 

within the EU or returning them to their countries of origin. In October 2015, Greece presented 

 

82 Id. paras. 103–104. 

83 Id. para. 106. 

84 Commission Recommendation of 2/10/2016, supra note 14, at 1. 

85 Commission Recommendation of 2/10/2016, supra note 14, pmbl. para. 8. 

86 Press Release, IOM, supra note 8. 

87 Commission Recommendation of 2/10/2016, supra note 14, Recommendations, para. 8. 
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a Roadmap to the Council of the EU regarding its plan to implement the hot spots. In January 

2016, the government announced that the hot-spot areas in the islands of Lesvos (extension to a 

pre-existing center), Leros, Chios, and Samos would be completed sometime in spring 2016. 

The Greek army has been mobilized to ensure the hot spots are completed.88 

Greece is required to ensure full registration of all migrants entering illegally. Greece has made 

significant improvements in this regard, increasing the fingerprinting rate from 8% in September 

2015 to 78% in January 2016. The EASO has been assisting Greece with ordering twenty-five 

fingerprinting stations for hotspot locations, and an additional sixty-five fingerprinting stations 

will be ordered soon. Meanwhile, the Greek Police have set up six fingerprinting stations 

in Lesvos. 89

B. Planning for Resumption of Dublin Transfers 

Since 2011, Dublin transfers to Greece, as the first country of origin, were suspended by EU 

Member States because of the systemic deficiencies in its asylum system identified in the court 

decisions discussed in section IV above.90 To ensure that the Common European Asylum 

System applies properly, on February 10, 2016, the Commission urged Greece to take additional 

measures to enable the eventual resumption of Dublin transfers, including bringing the reception 

conditions up to EU standards, ensuring effective access to the asylum procedures throughout 

Greece, resuming the operation of appeal committees, and making fully operational all 50,000 

reception locations that Greece has committed to open.91 

C. Return of Illegal Migrants 

The Commission has urged Greece to comply fully with the Returns Directive in order to ensure 

the return of those who do not qualify for international protection back to their country of origin. 

In this regard, the Commission advised Greece to utilize the maximum allowed detention of 

eighteen months to avoid a situation where detention ends before migrants are effectively 

returned.92 The EU has financed an emergency forced return program under the Asylum 

Migration and Integration Fund (AMIF), implementation of which has been entrusted to the 

Greek police.93 Another program financed by the AMIF is the emergency Assisted Voluntary 

Return (AVR) program, which provides the possibility to a total of 1,000 migrants to return 

voluntarily to their countries of origins.94

 

88 ANNEX to the Communication from the Commission to the European Parliament and the Council on the State of 

Play of Implementation of the Priority Actions Under the European Agenda on Migration Greece – State of Play 

Report, COM (2016) 85 final, Annex 2 (Oct. 2, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/ 

european-agenda-migration/proposal-implementation-package/docs/managing_the_refugee_crisis_state_of_ 

play_20160210_annex_02_en.pdf, archived at https://perma.cc/SF2A-LA4P. 

89 Id. at 3. 

90 Commission Recommendation of 2/10/2016, supra note 14, at 1. 

91 Id. at 6–7. 

92 Id. at 5. 

93 Id. at 6. 

94 Id.
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D. Control of Borders 

The Schengen system is based on the premise that the external borders of the EU must be secure 

in order to ensure an area free of internal border controls. The Commission has urged Greece, as 

a member of the Schengen area, to ensure the security of its external borders, especially the 

border with the former Yugoslav Republic of Macedonia where 32,000 migrants have camped 

outside of Idomeni.95 Frontex, the EU’s external borders agency, will provide assistance to 

Greece in its efforts to accommodate the migrants at the Idomeni camp and secure its border.96 

E. Agreement with Turkey 

On March 7, 2016, the European Council, composed of heads of state and governments, 

brokered a provisional deal with Turkey regarding the migratory flow from Turkey to Greece.97 

Some key highlights of the agreement, which have a direct impact on Greece, include 

 the return of all new irregular migrants crossing from Turkey into the Greek islands, with the 

costs covered by the EU; and 

 resettlement, for every Syrian readmitted by Turkey from the Greek islands, of another 

Syrian from Turkey to the EU Member States, within the framework of the 

existing commitments.98 

The UN Refugee Agency has cast doubt over the legality of the plan, on the grounds that return 

of migrants to Turkey would amount to collective expulsions, which are prohibited under 

international and EU law.99

 

95 Migrant Crisis: Macedonia Shuts Balkans Route, BBC NEWS (Mar. 2016), http://www.bbc.com/news/worldeurope-35763101, archived at https://perma.cc/8HRQ-AGF2. 

96 Communication from the Commission to the European Parliament and to the Council on the State of Play of 

Implementation of the Priority Actions Under the European Agenda on Migration, at 13, COM (2016) 85 final (Feb. 

10, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposalimplementation-package/docs/managing_the_refugee_crisis_state_of_play_20160210_en.pdf, archived at 

https://perma.cc/4K7B-CXG8. 

97 Press Release, European Council, Statement of the EU Heads of State or Government (Mar. 7, 2016), 

http://www.consilium.europa.eu/en/press/press-releases/2016/03/07-eu-turkey-meeting-statement, archived at 

https://perma.cc/BF34-WDDD. 

98 Id. 

99 Migrant Crisis: UN Legal Concerns over EU-Turkey Plan, BBC NEWS (Mar. 8, 2016), http://www.bbc.com/news/ 

world-europe-35754738, archived at https://perma.cc/LG83-HPXU. 
The Law Library of Congress 165

Israel 

Ruth Levush 

Senior Foreign Law Specialist

SUMMARY As a Jewish homeland open to the immigration of Jews from all over the world, and a 

signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 

Protocol Relating to the Status of Refugees, Israel has absorbed a large number of Jewish 

refugees from Europe, the Middle East, and Africa. In handling applications for political 

asylum of non-Jewish applicants, Israel applies international law criteria in accordance 

with its treaty obligations and claims to abide by the principle of non-refoulement. 

 Israel has traditionally maintained restrictive immigration policies. This is due to that fact 

that it borders states and populations that are hostile, is affected by geopolitically volatile 

conditions in the Middle East and Africa, respects civil liberties, and enjoys a significantly 

higher standard of living as compared with other countries in the surrounding region. 

 While it has generally allowed Eritrean and Sudanese nationals who entered unlawfully 

and are already in the country to stay, it has not provided them with opportunities to 

become permanent residents or citizens. In addition, Israel has erected a fence along its 

border with Egypt to prevent a further influx of African migrants. It is also currently 

building a fence along the border with Jordan, which is reportedly hosting more than 

600,000 Syrian refugees.

I. Introduction 

Established as a Jewish homeland open to immigration of Jews from all over the world,1

 Israel 

has absorbed hundreds of thousands of Jewish refugees since its establishment in 1948. It has 

admitted, however, only a limited number of non-Jewish refugees. 

Following the end of World War II, between 1945 and 1948, thousands of Jewish European 

displaced persons attempted to enter Palestine, which was then under a British Mandate.2

 

Immigration to Palestine, however, remained severely limited until the establishment of the State 

of Israel in May 1948, as “the British authorities interned many of the would-be immigrants to 

Palestine in detention camps in Cyprus.”3

 Israel absorbed some 140,000 Holocaust survivors 

 

1

 Declaration of the Establishment of the State of Israel, May 14, 1948, http://knesset.gov.il/docs/eng/megilat_eng. 

htm, archived at https://perma.cc/S56F-4QSX. 

2

 Palestine was under a British Mandate confirmed by the Council of the League of Nations on July 24, 1922, “in 

favour of the establishment in Palestine of a national home for the Jewish people.” Terms of the British Mandate for 

Palestine Confirmed by the Council of the League of Nations, July 24, 1922, in THE ARAB-ISRAELI CONFLICT AND 

ITS RESOLUTION: SELECTED DOCUMENTS 25 (Ruth Lapidoth et al. eds., 1992), also available on the Yale Law 

School Avalon Project website, at http://avalon.law.yale.edu/20th_century/palmanda.asp, archived at https://perma. 

cc/F535-VN97. 

3 Refugees, in UNITED STATES HOLOCAUST MUSEUM, HOLOCAUST ENCYCLOPEDIA, http://www.ushmm.org/wlc/en/ 

article.php?ModuleId=10005139 (last visited Jan. 11, 2016), archived at https://perma.cc/4NHW-9A4S. 
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during its first years as an independent state. In addition, it has admitted about 586,000 Jews 

from Arab countries who were dispossessed of their homes both before and after the 

establishment of Israel.4

Israel has continued to admit many immigrants from all over the world, including almost a 

million Jews and non-Jewish relatives of Jews who qualified for Oleh immigration status under 

the Law of Return5 and emigrated from the former Soviet Republics between 1990 and 2014.6 

The admission of non-Jewish refugees who do not qualify under the Law of Return, however, 

has traditionally been very limited. Among those refugees who have been authorized to stay 

over the years were merely a few hundred Vietnamese escaping the Communist regime between 

1975 and 1979 who later gained Israeli citizenship.7 In 1993 Israel issued temporary visas to 

eighty-four Bosnian Muslims who had been driven from their homes as a consequence of the 

conflict in the former Yugoslavia.8

 

Tens of thousands of African migrants have entered Israel unlawfully via undesignated land 

crossings from Egypt in recent years. Most of these migrants are Eritrean and Sudanese 

nationals claiming to have escaped political persecution in their countries.9

 Their status has been 

the subject of public debate,10 parliamentary hearings, several legislative amendments, and 

judicial review by the Supreme Court. 

 

4 Fact Sheet: Jewish Refugees from Arab Countries, JEWISH VIRTUAL LIBRARY, http://www.jewishvirtuallibrary.org/ 

jsource/talking/jew_refugees.html (last updated Dec. 2015), archived at https://perma.cc/7S4C-BQJH. 

5

 Relatives of Jews may qualify for status as an Oleh, a Jew immigrating to Israel, under the Law of Return 5710-

1950, as amended, http://knesset.gov.il/laws/special/eng/return.htm, archived at http://perma.cc/7UGG-4YK7. 

According to section 4A, added in 1970, “a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a 

child of a Jew and the spouse of a grandchild of a Jew” are entitled to immigrate into Israel in accordance with the 

Law, “except for a person who has been a Jew and has voluntarily changed his religion.” Id. Furthermore, 

according to the Amendment, “[i]t shall be immaterial whether or not a Jew by whose right a right . . . is claimed is 

still alive and whether or not he has immigrated to Israel.” Id. 

6 Immigrants(1), By Period of Immigration, Country of Birth and Last Country of Residence, in CENTRAL BUREAU 

OF STATISTICS, STATISTICAL ABSTRACT OF ISRAEL 2013, at 237–38, http://www.cbs.gov.il/shnaton64/st04_04.pdf, 

archived at http://perma.cc/3SWG-3XJP. 

7

 Naomi Scheinerman, Immigration to Israel: Vietnamese Boat People in Israel, JEWISH VIRTUAL LIBRARY (Oct. 3, 

2009), http://www.jewishvirtuallibrary.org/jsource/Immigration/VietBoatPeople.html, archived at https://perma.cc/ 

WC4N-JZPN. 

8

 Stephen Kinzer, Israel Accepts 84 of Bosnia’s Muslim Refugees, NY TIMES (Feb. 18, 1993), http://www.nytimes. 

com/1993/02/18/world/israel-accepts-84-of-bosnia-s-muslim-refugees.html, archived at https://perma.cc/Q3QE2K4U. 

9

 Brianna Lee, Eritreans in Israel Protest for Refugee Protection, INTERNATIONAL BUSINESS TIMES (June 25, 2015), 

http://www.ibtimes.com/eritreans-israel-protest-refugee-protection-1984640, archived at https://perma.cc/HWK2-

CJDS. 

10 For a discussion of the legal and national security aspects of the influx of African migrants, see UNAUTHORIZED 

IMMIGRATION AS A CHALLENGE TO ISRAEL – CONFERENCE SUMMARY (Ruth Gavison & Meir Elran eds., The 

Institute for National Security Studies June 2013), http://www.inss.org.il/uploadImages/systemFiles/memo128e.pdf

(in Hebrew), archived at https://perma.cc/ZG2Q-3BQD. For the crime rates of migrants’ in Tel Aviv, see Gilad 

Morag, Police: 53.2% Rise in Migrant Crime in Tel Aviv, YNETNEWS (Feb. 28, 2013), http://www.ynetnews. 

com/articles/0,7340,L-4350598,00.html, archived at https://perma.cc/WHF9-JMAU; Roy Arad, Not Everyone in 
Refugee Law and Policy: Israel 

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This report describes the current legal regime that applies to the admission of refugees in Israel 

and Israel’s procedures for processing asylum requests. 

II. International Agreements 

Israel is a signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 

Protocol Relating to the Status of Refugees.11 It is also a signatory to the Final Act of the United 

Nations Conference on the Status of Stateless Persons, 1954,12 and the 1961 Convention on the 

Reduction of Statelessness.13 Accordingly, Israel recognizes a refugee as a person who, 

owing to 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 or, owing to such 

fear, is unwilling to return to it.14

Israel is also committed to the principle 

that no State should expel or return a person 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.

15 

 South Tel Aviv Wants the Asylum Seekers Out, HAARETZ (Aug 13, 2015), http://www.haaretz.com/israel-news/. 

premium-1.670806 (by subscription), archived at https://perma.cc/NDL5-HU7Y. 

11 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2aa10. 

html, archived at http://perma.cc/V86S-GU6S; Convention Relating to the Status of Refugees: Status of Signatories 

and Parties, UNITED NATIONS TREATY COLLECTION (Jan. 13, 2016), https://treaties.un.org/Pages/ViewDetailsII. 

aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&lang=en, archived at https://perma.cc/63FJVBR3; Protocol Relating to the Status of Refugees: Status of Parties, UNITED NATIONS TREATY COLLECTION (Jan. 

13, 2016), https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=V5&chapter=5&lang=en#Participants, archived at https://perma.cc/C5HT-GKGM. 

12 Final Act of the United Nations Conference on the Status of Stateless Persons, Sept. 28, 1954, 5158 U.N.T.S. 

118–24, https://treaties.un.org/doc/Publication/UNTS/Volume%20360/v360.pdf, archived at https://perma.cc/ 

5STD-FDRM. 

13 Convention on the Reduction of Statelessness with Final Act of the United Nations Conference on the Elimination 

or Reduction of Future Statelessness Held at Geneva from 24 March to 18 April 1959, and Resolutions I, II, III and 

IV of the Conference), Aug. 30, 1961, 989 U.N.T.S. 175, https://treaties.un.org/doc/Publication/UNTS/Volume% 

20989/v989.pdf, archived at https://perma.cc/PS5N-BPMD. 

14 Convention Relating to the Status of Refugees, supra note 11, art. 2. 

15 Id. art. 33. 
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III. Restrictive Policy on Non-Jewish Immigration 

Israel’s immigration policies have been greatly affected by the country’s geopolitical situation, 

specifically the ongoing Arab-Israeli conflict and the current volatile conditions in the Middle 

East and parts of Africa. 

Responding to recent calls by Israeli liberals led by opposition leader Isaac Herzog to admit 

Syrian refugees escaping the turmoil in their country, Prime Minister Binyamin Netanyahu noted 

that Israel had provided medical care to over one thousand injured Syrians.16 He further added 

that Israel had also made “efforts to aid African nations and thus stem the flow of migrants from 

African countries.”17 Netanyahu refused, however, to approve a general policy that would allow 

Syrian refugees to stay in Israel. At a cabinet meeting in September 2015, Netanyahu 

reportedly stated, 

Israel is not indifferent to the human tragedy of the refugees from Syria and Africa. . . . 

But Israel is a small country, a very small country that lacks demographic and geographic 

depth; therefore, we must control our borders, against both illegal migrants 

and terrorism.18

IV. Handling Asylum Requests 

The authority to make determinations on refugee status in Israel is vested with the Minister of 

Interior. In 2002 an interministerial committee for determining eligibility for political asylum 

was established by the Attorney General. The Committee is responsible for evaluating 

individual requests and making recommendations to the Minister of Interior. Until July 1, 2009, 

requests by asylum seekers in Israel were transferred to the United Nations High Commissioner 

for Refugees (UNHCR). After that date the responsibility for handling requests from asylum 

seekers was transferred to the Refugee Status Determination Unit (RSD) of the Ministry of 

Interior. The RSD works in close collaboration with the United Nations.19

According to information provided by Israel’s Population and Immigration Authority (PIA), 

RSD representatives have been trained by international experts in the treatment of asylum 

 

16 For further information on Israel’s provision of medical care to wounded Syrians, see Charlotte Florance, How an 

Israeli Hospital Builds Bridges with Syria by Caring for the War’s Wounded, DAILY SIGNAL (July 21, 2015), 

http://dailysignal.com/2015/07/21/how-an-israeli-hospital-builds-bridges-with-syria-by-caring-for-the-warswounded/, archived at https://perma.cc/YE2S-KGFF. 

17 Batsheva Sobelman, One Country That Won’t Be Taking Syrian Refugees: Israel , LA TIMES (Sept. 6, 2015), 

http://www.latimes.com/world/middleeast/la-fg-syrian-refugees-israel-20150906-story.html, archived at

https://perma.cc/56YD-LVKT. 

18 Yardena Schwartz, Non-Jewish Refugees Get a Cold Shoulder in Israel, NEWSWEEK (Oct. 10, 2015), http://www. 

newsweek.com/2015/10/23/what-europe-can-learn-israels-refugee-crisis-382523.html, archived at https://perma.cc/ 

W4B8-34B2 (click “See the Screenshot View” and click on the article in the left column). 

19 Handling Asylum Seekers, PIA, http://www.piba.gov.il/authorityunits/pages/rsd.aspx (in Hebrew; last visited Jan. 

13, 2016), archived at https://perma.cc/553R-WZ85. 
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seekers. Requests for asylum are reviewed in accordance with principles under the UN refugee 

treaty and with sensitivity to the relevant circumstances of the applicants.20

A. General Principles 

The PIA issued its Procedure for Handling Political Asylum Seekers in Israel (PHPAS) on 

February 1, 2011.21 The PHPAS clarifies that the processes it introduces do not derogate from 

the authorities vested in the Interior Minister by the Entry to Israel Law, 5712-1952,22 except 

with regard to deportation authority. The Minister, therefore, does not have the authority to 

expel asylum applicants prior to the rendering of a final decision on their applications.23 The 

PHPAS specifies that political asylum requests must be handled in conformity with Israeli law. 

Such requests must also be treated in consideration of Israel’s treaty obligations, recognizing that 

“no person is to be expelled to an area in which there is prospective threat to his life, under the 

principle of non-refoulement.”24

B. Advisory Committee on Refugees 

The PHPAS established an advisory committee on refugees that reports to the Interior Minister 

or his/her designee. The committee is chaired by a retired judge or a person who is qualified to 

serve as a district court judge and is not a civil servant, and who has been appointed by the 

Interior Minister in consultation with the Minister of Justice. The committee further includes 

one representative of each of the following ministries: Ministry of Justice, Ministry of Foreign 

Affairs, and Ministry of Interior’s Population and Immigration Authority.25

C. Filing an Application for Asylum 

An application for political asylum by a foreign national in Israel must be submitted to the PIA 

within a year from the date of entry into Israel or, in the absence of special reasons, must be 

dismissed.26 An application that is filed late may be considered by the head of a team in the PIA 

Infiltrators and Asylum Seekers Department if special reasons for the delay are presented by the 

applicant at the time of filing.27 

 

20 Id. 

21 Procedure for Handling Political Asylum Seekers in Israel [PHPAS] (effective Jan. 2, 2011), http://www.piba.gov. 

il/AuthorityUnits/Documents/Procedure%20for%20Handling%20Political%20Asylum%20Seekers%20in%20Israel.

pdf (last visited Jan. 12, 2016), archived at https://perma.cc/4EXL-GHRB. 

22 Entry to Israel Law 5712-1952, 6 LAWS OF THE STATE OF ISRAEL [LSI] p. 150, 5712-1951/52, as amended. 

23 PHPAS , supra note 21, at 1. 

24 Id. For specific information on Israel’s handling of political asylum requests, see Requests for Political Asylum in 

Israel, PIA, http://www.piba.gov.il/AuthorityUnits/Documents/Requests%20for%20political%20asylum%20in%20 

Israel.pdf, archived at https://perma.cc/QW7V-ANYZ. 

25 PHPAS, supra note 21, at 1–2. 

26 A Refugee Status Determination Application Form is available on the PIA website, at http://www.piba.gov.il/ 

AuthorityUnits/Documents/RSD%20application%20form_300615.pdf (last visited Jan. 12, 2016), archived at

https://perma.cc/3A2K-3N9N. 

27 PHPAS, supra note 21, § 1c(2). 
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An applicant who is in custody may submit his/her application to the PIA representatives in the 

custody facility. The PIA must ensure that the applicant is informed of the manner of submitting 

an application for asylum in Israel, the right to contact a legal representative of his/her choosing, 

and the scope of representation to which he/she is entitled during the process.28 Applications for 

asylum by unaccompanied minors, “persons suffering from mental problems,” or victims of 

torture are handled with special sensitivity.29

D. Registration and Identification 

The PHPAS states the following with regard to the registration and identification of asylum 

applicants: 

a. A foreign subject arriving at the Authority’s offices to submit an application . . . 

will undergo a registration and identification process, in which he will be 

photographed, biometric means of identification will be taken from him, and he 

will give his full address, contact details and other identifying particulars, as 

required. The foreign subject will be requested to immediately update his address 

and contact details, should there be any changes in them. 

b. The presence of an attorney representing the asylum seeker will be permitted 

during the registration and identification process, provided that his participation is 

limited to comments which he may make prior to the process or after its 

conclusion, but not during the process.30

E. Interview and Determination 

Unless the applicant’s identification is refuted at the conclusion of the preliminary registration 

and identification process, he/she undergoes a basic interview.31 The basic interview must be 

conducted in the official language of the applicant’s country of origin if he/she understands that 

language. Otherwise the interview will be conducted in any other language that he/she 

understands, and if need be, through an interpreter.32 The presence of an attorney representing 

the asylum seeker is permitted subject to conditions specified in the PHPAS.33

At the conclusion of the basic interview, the interviewer immediately decides whether to refer 

the applicant for a comprehensive interview or initiate the process for immediate dismissal of the 

application.34 The PHPAS provides a detailed list of requirements regarding the conduct of a 

 

28 Id. § 1a. 

29 Id. § 1b. 

30 Id. § 2. 

31 Id. § 3a. 

32 Id. § 3b(1). 

33 Id. § 3b(3). 

34 Id. § 3c. 
Refugee Law and Policy: Israel 

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comprehensive interview35 and additional procedures for reconsideration of applications that 

have been denied.36

V. Asylum Requests by Nationals of Hostile States 

Israel has rarely granted residence status to nationals of hostile states. Special arrangements are 

made for residents of the West Bank and Gaza for the sake of family reunification. Security 

concerns are reflected in the following PHPAS provision: 

The State of Israel reserves the right not to absorb into Israel and not to grant permits to 

stay in Israel to subjects of enemy or hostile states – as determined from time to time by 

the authorized authorities, and so long as they have that status, and the question of their 

release on bond will be considered on a case by case basis, according to the 

circumstances and to security considerations. 

Israel appreciates the UN Refugee Agency’s notice according to which until a 

comprehensive political settlement is reached in our region it will make every effort to 

find refugees asylums [sic] in other countries.37

VI. Prevention of “Infiltration” into Israel 

A. Regulation of Unlawful Entry into Israel 

Israel currently shares borders with Egypt, the Gaza Strip, Jordan, Lebanon, Syria, and the West 

Bank. Because of security concerns Israel maintains heightened supervision of its borders. To 

better control its borders, the Knesset (Israel’s Parliament) passed the Prevention of Infiltration 

(Offences and Jurisdiction) Law, 5714-1954, on August 26, 1954.38 The Law was designed to 

“improve the security at the state borders and the general security [in the country] by improving 

the legal measures that are used against infiltrators.”39

In accordance with the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954, as 

amended, “infiltrators” (mistanenim) are persons who are not Israeli residents, do not possess an 

Oleh40 or a permanent residence visa, and have entered Israel via a border that has not been 

designated as an international border crossing by the Minister of Interior.41 

 

35 Id. § 5. 

36 Id. § 9. 

37 Id. § 10. 

38 Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954, 8 LSI 133 (5714-1953/54). 

39 Draft Bill for Borders Security (Offenses and Jurisdiction), 5713-1953, HATSAOT HOK No. 161 p. 172 (in 

Hebrew; translation by author, R.L.). 

40 An Oleh visa is issued to qualifying Jews or their family members under the Law of Return, 5710-1950, as 

amended, http://knesset.gov.il/laws/special/eng/return.htm, archived at http://perma.cc/7UGG-4YK7. 

41 Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 § 1, as amended. An up-to-date version of 

the Law is available in the Nevo Legal Database, http://www.nevo.co.il (in Hebrew, by subscription), archived at

https://perma.cc/6TA7-UGDA. 
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B. Influx of African “Infiltrators” Since 2006 

1. Statistical Data 

Since 2006 an increased number of migrants have crossed the border from Egypt to Israel. A 

report issued by the PIA in April 2015 provides statistical data on “infiltrators” who “have 

unlawfully entered Israel through the border with Egypt, and have been identified at the border 

either upon entry or later within the jurisdiction of the State of Israel.”42 

According to the report, nearly 65,000 Africans crossed illegally into Israel between 2006 and 

2013.43 By March 31, 2015, 45,711 of them were staying in Israel, including four who had 

entered since the beginning of 2015; 747 have reportedly left voluntarily; 33,506 are from 

Eritrea; 8,637 are from Sudan; 2,984 from other countries in Africa; and 584 are 

from elsewhere.44 

2. Public Reaction

The increased number of African “infiltrators” has drawn public opposition, and their settling in 

population centers, particularly in Tel Aviv, and involvement in crimes in those centers has 

inflamed popular resentment.45

The influx of “infiltrators,” particularly between 2006 and 2013, has reportedly created fear that 

the demographic changes resulting from “a wave of impoverished Africans, mostly Muslims 

from Sudan and Christians from Eritrea, would overwhelm the Jewish nature of the state.”46 In 

addition, some have raised national security concerns over the influx and have argued that Israel 

is “the only country of the First World that borders only Third World countries.” 47

 

42 POPULATION AND IMMIGRATION AUTHORITY, POLICY PLANNING DIVISION, DATA ON FOREIGNERS IN ISRAEL 10 

(Apr. 2015), http://www.piba.gov.il/PublicationAndTender/ForeignWorkersStat/Documents/oct2015.pdf (in 

Hebrew), archived at https://perma.cc/43T8-Q46L. 

43 Id. 

44 Id. at 4. 

45 Opposition to allowing infiltrators to stay has included allegations that they have perpetrated criminal offenses, 

particularly in Tel Aviv. See Morag, supra note 10. For data on crimes committed by “infiltrators,” see NETA 

MOSHE & SHARON SOFER, REPORTED CRIME BY FOREIGNERS INCLUDING INFILTRATORS, 2009–2013 (Knesset 

Information and Research Center Aug. 12, 2014), https://www.knesset.gov.il/mmm/data/pdf/m03432.pdf (in 

Hebrew), archived at https://perma.cc/2MCD-D97D. 

46 William Booth, Israeli Government to Refugees: Go Back to Africa or Go to Prison, WASH. POST (May 14, 2015), 

https://www.washingtonpost.com/world/middle_east/toughening-its-stance-toward-migrants-israel-pushes-africansto-leave/2015/05/14/e1637bce-f350-11e4-bca5-21b51bbdf93e_story.html, archived at https://perma.cc/7SWTQ2L3. 

47 Amnon Rubinstein, Irregular Immigration – The Position of Metzilah, in UNAUTHORIZED IMMIGRATION AS A 

CHALLENGE TO ISRAEL – CONFERENCE SUMMARY, supra note 10, at 17–18. 
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Professor Ruth Gavison, founder and former president of the Association for Civil Rights in 

Israel,48 has distinguished between 

the entry of thousands, who actually come every month from countries that do not share a 

border with Israel and it is unclear whether they are labor migrants or asylum requesters, 

and a situation in which a relatively small number of persons who escape an imminent 

real danger that threatens them in their country adjacent to Israel arrive at the 

state borders.49

According to Professor Gavison, 

[t]he dramatic phenomenon of large groups of people knocking at Israel’s borders in 

recent years, in a well-organized and financed process of transfers, in a situation such that 

their incentive to come to the state of Israel in a regular fashion because of the 

combination of their resentment of their location and the attraction to the place where 

they are coming—this phenomenon is a structural result of the reality in their country and 

the country to which they desire to come.50

Highlighting the superior social, economic, political, and human rights conditions in Israel as 

compared with those in surrounding countries, and the difficulty in monitoring the land border 

with Egypt, Professor Gavison concluded that ever-growing, unauthorized migration into Israel 

has become a strategic problem.51 Describing ways to handle it, she suggested that 

[o]ur challenge is to apply the right balance. On the one hand, under these conditions the 

State of Israel cannot maintain open borders . . .[;] on the other hand, . . . the State of 

Israel . . . has a duty towards those who are “refugees” and escape because of a threat to 

their lives or welfare because of their identity or views. But . . . Israel—or other states—

do not have such a duty towards work migrants. It does not have a duty, under normal 

conditions, towards refugees who arrived [in Israel] after passing through a country in 

which they are not exposed to a similar threat. Let us also remember that the duty 

towards the real refugees is to permit them to enter, and not to return them to the place 

where they are facing danger. There is no duty to grant them status in the country where 

they have found shelter, but they should be permitted to live there in a reasonable way 

until a place where they could be absorbed [as immigrants] could be found or until they 

can return safely to their homes.52 

 

48 Prof. Ruth Gavison, THE ISRAEL DEMOCRACY INSTITUTE, http://en.idi.org.il/about-idi/idi-staff/emeritus-fellowsand-leadership/ruth-gavison (last visited Jan. 12, 2016), archived at https://perma.cc/FAC4-P66Y. 

49 Ruth Gavison, Opening Remarks, in UNAUTHORIZED IMMIGRATION AS A CHALLENGE TO ISRAEL – CONFERENCE 

SUMMARY, supra note 10, at 12 (translation by author, R.L.).

50 Id. 

51 Id. 

52 Id.
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3. Government Policies on Admission and Prevention of Further Sizeable “Infiltration” 

A recent decision by Israel’s Supreme Court summarizes governmental policies on admitting 

African “infiltrators.”53 Regardless of whether their motives in arriving in Israel were to 

improve their economic conditions, as the State argued, or to escape political persecution, as 

petitioners in the case argued, the Court noted that Israel did not send Sudanese nationals back to 

their country. The Court also noted that Israel subjected Eritrean nationals to a policy of 

“temporary nonremoval” in compliance with the principle of non-refoulement. These policies 

did not prevent nationals of either country from filing individual applications to be granted 

refugee status.54

Describing the development of policies on admitting African migrants, the Court stated that at 

first “infiltrators” were returned to Egypt. Because of the geopolitical situation in that country, 

however, this policy was discontinued.55 

In response to public concern, in 2013 the Israeli government adopted an official policy offering 

Sudanese and Eritreans who were willing to leave $3,500 plus a one-way ticket home or to a 

third-party country, namely Rwanda or Uganda. In addition, the government reportedly spent 

more than $350 million to build a 140-mile fence along its entire border with Egypt. The steel 

barrier, completed in 2013, is believed to have almost fully stopped the illegal entry of migrants 

into Israel from the Sinai Peninsula. The fence has similarly shut down human traffickers said to 

have engaged in the rape of women and extortion of migrants.56 An additional $75 million 

eighteen-mile fence along the border with Jordan, a country considered “home to more than 

600,000 Syrian refugees,” is currently being erected. 57

4. Internment of “Infiltrators” for Identification and Determination of Refugee Status 

Unable to return “infiltrators” to their countries of origin, the government started detaining such 

“infiltrators” in accordance with its authority under the Entry to Israel Law, 5712-1952.58 In 

accordance with this Law, however, the government was generally not authorized to detain them 

for a period exceeding sixty days.59

To extend the detention period, the Knesset passed a series of temporary amendments to the 

Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954, that specifically authorize 

 

53 HCJ 8665/14 Tashuma Naga Dasta v. Knesset (decision rendered on Aug. 11, 2015) ¶ 5, http://elyon1.court.gov. 

il/files/14/650/086/c15/14086650.c15.pdf (in Hebrew), archived at https://perma.cc/EW6B-ZUT9. 

54 Id. ¶ 4. 

55 Id. ¶ 7. 

56 Ben Gittleson, Inside Sinai’s Torture Camps, THE ATLANTIC (Nov. 14, 2012), http://www.theatlantic.com/ 

international/archive/2012/11/inside-sinais-torture-camps/265204, archived at https://perma.cc/D4GL-K6DJ. 

57 Schwartz, supra note 18. 

58 Entry to Israel Law, 5712-1952, 6 LSI p. 150, 5712-1951/52, as amended. 

59 Tashuma Naga Dasta v. Knesset ¶ 7. 
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deporting and holding “infiltrators” in custody.60 As detention extending to one or three-year 

periods had been previously declared unconstitutional by the Supreme Court,61 on December 8, 

2014, the Knesset passed legislation that limited detention to a period of three months, which can 

be extended up to twenty months, while keeping intact the restrictions introduced by the earlier 

amendments, including that “infiltrators” must stay in detention facilities at night.62 

According to explanatory notes of the Amendment Law, the new measures were designed to 

discourage further “infiltration” into Israel, enable the authorities to identify “infiltrators and 

remove them from Israel, enable the state to protect its borders and sovereignty, and prevent the 

continued settling of infiltrators at town centers in Israel.”63 

In its leading decision rendered on August 11, 2015, the Supreme Court, sitting as an extended 

bench of nine justices, reviewed the constitutionality of the Amendment Law. The majority of 

the justices determined that the three-month detention period for “infiltrators” for the purpose of 

identifying them and determining whether they should be removed from Israel was valid. The 

placement of “infiltrators” in a specially designated center was also deemed lawful.64 The Court 

determined, however, that the twenty-month maximum detention period set by the Amendment 

Law was not proportional and therefore void. It specified that the decision would take effect six 

months following the date of issuance, thereby allowing the Knesset to pass new legislation to 

substitute the twenty month maximum detention period with a period that would conform to 

constitutional requirements. The Court further determined that the authority to hold “infiltrators” 

in a detention center during the six month period would be limited to a detention of up to twelve 

months. Detainees held for periods exceeding twelve months in total would therefore be released 

immediately or no later than fifteen days following the date of the decision.65 

On February 8, 2016, shortly before the expiration of the six month period authorized by the 

Court, the Knesset passed a temporary amendment that will be effective for three years, 

determining that the period of detention of an “infiltrator” in a detention center may not exceed 

twelve months.66 

 

60 Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954, as amended, ch. C. An up-to-date version 

of the Law is available in the Nevo Legal Database, http://www.nevo.co.il (in Hebrew; by subscription), archived at

https://perma.cc/6TA7-UGDA. 

61 Tashuma Naga Dasta v. Knesset ¶ 9. 

62 Prevention of Infiltration and Ensuring the Exit of Infiltrators Out of Israel (Temporary Amendment) 5755-2014, 

SEFER HAHUKIM [BOOK OF LAWS] (official gazette) No. 2483 (Dec. 17, 2014), http://fs.knesset.gov.il/%5C19%5C 

law%5C19_lsr_306608.pdf (in Hebrew), archived at https://perma.cc/JS3G-WMT5. 

63 Tashuma Naga Dasta v. Knesset ¶ 12. 

64 Id. ¶¶ 40–49. 

65 Id. Verdict § 1 (adopting the opinion of Court President Miriam Naor set out in ¶ 115). 

66 Press Release, Knesset, Final Approval: Shortening Infiltrators’ Period of Stay in a Detention Center from 20 

Months to 12 Months (Feb. 8, 2016), http://main.knesset.gov.il/News/PressReleases/Pages/press080216-0o00.aspx, 

archived at https://perma.cc/MTS6-889B; Prevention of Infiltration (Offences and Jurisdiction) Law (Amendment 

No. 5 and Temporary Amendment) 5776-2016 Draft Bill, HATSAOT HOK HAMEMSHALA (Government Bills) No. 

1006 p. 430 (Jan. 25, 2016), http://knesset.gov.il/Laws/Data/BillGoverment/1006/1006.pdf, archived at

https://perma.cc/8ACT-YFDF. 
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VII. Status of “Infiltrators” Who Are Not Held in Custody 

“Infiltrators” who are not in custody may obtain a temporary visit visa under section 2(A)(5) of 

the Entry into Israel Law, 5712-1952.67 They generally may be employed, as the government 

has expressed a commitment not to sanction employers of 2(A)(5)-visa holders.68 Employers 

may be sanctioned, however, for employing holders of an expired visa or for employment in 

violation of conditions that either fully or partially prohibit employment in specific geographic 

locations, such as Tel Aviv and Eilat.69 Although a temporary visit visa issued under section 

2(A)(5) is not a work permit, employed visa holders are entitled to a number of benefits under 

Israeli labor law, including a minimum wage, sick pay, and health insurance.70 

 

67 Entry to Israel Law 5712-1952, 6 LSI p. 150 (5712-1951/52), as amended. 

68 Employment of Asylum Seekers, AID ORGANIZATION FOR REFUGEES AND ASYLUM SEEKERS IN ISRAEL, http://assaf. 

org.il/he/contentמקלט-מבקשי-העסקת/) in Hebrew; last visited Jan. 12, 2016), archived at https://perma.cc/A33EWHSF. 

69 Foreign Workers, PIA, http://www.piba.gov.il/Subject/ForeignWorkers/Pages/oz_mistanenim.aspx (in Hebrew; 

last visited Jan. 12, 2016), archived at https://perma.cc/A33E-WHSF. 

70 KAV LAOVED, WORKERS’ RIGHTS – FOR HOURLY WORKERS (July 2011), http://assaf.org.il/he/sites/default/files/ 

working%20rights%20english.pdf, archived at https://perma.cc/5XP7-FZC8. A copy of a PIA decision form 

authorizing a conditional release with visa limitations is available at http://www.piba.gov.il/Spokesmanship 

Messagess/Documents/Scan_visa01.pdf, archived at https://perma.cc/2KPR-5WVD. 
The Law Library of Congress 177

Italy 

Dante Figueroa 

Senior Legal Information Analyst

SUMMARY Italy’s legal system provides for a complex framework of assistance to asylum seekers. 

Italy has adhered to or ratified the most important international treaties providing for the 

protection of refugees and their families. The Italian police have broad powers to control 

and reject asylum seekers at the border. Italian legislation has created several government 

agencies at the national and regional levels to provide assistance to asylum seekers, 

including the review of their applications, financial and material help, and the monitoring 

of their activities within the country. Legislation that accords with Italy’s international and 

European obligations has also established grounds for the rejection of asylum requests. 

Italian law provides for an abbreviated procedure for the review of asylum requests under 

certain conditions. Asylum seekers may be granted either refugee status or subsidiary 

international protection status. Deportation and repatriation proceedings are also regulated 

in national legislation. Asylum-related administrative decisions are subject to judicial 

review. Once granted protected status, refugees may avail themselves of all the education, 

work, health care, housing, and other benefits established by law for Italian citizens. 

Finally, protective measures are established for unaccompanied minors found in 

the country. 

I. Asylum in Italy in General 

Italy has adhered to the Universal Declaration of Human Rights of 1948, whose article 14 

provides that “everyone has the right to seek and to enjoy in other countries asylum from 

persecution.”1

 Italy is also a signatory to the International Covenant on Civil and Political Rights 

of 1966 and the European Convention for the Protection of Human Rights and Fundamental 

Freedoms of 1950. Both of these instruments contain provisions on asylum. In 1954 Italy 

ratified the UN Convention Relating to the Status of Refugees of 1951.2 This Convention does 

not establish any obligations for the states to admit into their territories persons that apply for 

refugee status. The only obligation set forth in this Convention is the principle of 

nonrefoulement—the prohibition against “expel[ling] or return[ing] 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 

                                                      

1

 G.A. Res. 217 (III) A, Universal Declaration of Human Rights(Dec. 10, 1948), http://www.un.org/en/universaldeclaration-human-rights/index.html, archived at https://perma.cc/E4NE-H9WP. 

2

 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2aa10. 

html, archived at http://perma.cc/V86S-GU6S. The Convention was ratified in Italy by Law No. 722 of July 24, 

1954, http://www.asgi.it/wp-content/uploads/public/legge.24.luglio.1954.n.722.pdf (in Italian), archived at

https://perma.cc/6ULE-MX7V; the Protocol was ratified by Law No. 95 of February 14, 1970, GAZZETTA 

UFFICIALE DELLA REPUBBLICA ITALIANA [G.U.], http://www.gazzettaufficiale.it/eli/id/1970/03/28/070U0095/sg (in 

Italian), archived at https://perma.cc/N75G-MBRZ.
Refugee Law and Policy: Italy 

The Law Library of Congress 178

opinion.”3

 The Convention also provides an exception to the aforementioned obligation in the 

case of “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 judgement of a particularly 

serious crime, constitutes a danger to the community of that country.”4

 Since 2007, the 

European Union Treaty has provided for a European common policy on asylum.5

 

To date, there are no international instruments providing for a universal right of asylum that Italy 

has adopted. However, Italy is among the few European countries to proclaim a right to asylum 

in their Constitution. The Italian Constitution provides that “[a] foreigner who, in his home 

country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian 

constitution shall be entitled to the right of asylum under the conditions established by law.”6

II. Regulatory Framework on Asylum 

Beginning with the Constitution, several legislative and regulatory instruments regulate asylum 

and asylum seekers in Italy. 

A. Definitions 

Italian law defines “refugee” as “a foreign citizen who, on the basis of on a well-founded fear of 

being persecuted by reason of race, religion, citizenship, belonging to a particular social group 

[or holding a particular] political opinion, is found outside of the territory of his/her country of 

citizenship and cannot or, on the basis of such fear, is unwilling to avail him/herself of the 

protection of his/her country.”7

 A stateless person found outside the territory in which he/she 

previously had his/her usual residence for the same reasons mentioned above, who may not or, 

on the basis of such fear, does not want to return to his/her country of citizenship, also falls into 

the definition of “refugee” for legal purposes in Italy.8 

                                                      

3

 Convention art. 33(1). 

4 Id. art. 33(2). 

5

 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community 

art. 63(1), Dec. 13, 2007, 2007 O.J. (C 306) 1, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C: 

2007:306:FULL&from=EN, archived at http://perma.cc/45DW-Q6A5. 

6

 CONSTITUTION OF THE ITALIAN REPUBLIC (English version published by the Parliamentary Information, Archives 

and Publications Office of the Senate Service for Official Reports and Communication) art. 10 ¶ 3, http://www. 

senato.it/documenti/repository/istituzione/costituzione_inglese.pdf, archived at https://perma.cc/B6VQ-GVQ7. 

7

 Decreto Legislativo 19 novembre 2007, n. 251 Attuazione della direttiva 2004/83/CE recante norme minime 

sull’attribuzione, a cittadini di Paesi terzi o apolidi, della qualifica del rifugiato o di persona altrimenti bisognosa di 

protezione internazionale, nonche’ norme minime sul contenuto della protezione riconosciuta [Legislative Decree 

No. 251 of November 19, 2007, Implementing Directive 2004/83/CE Concerning Minimum Provisions on the 

Attribution to Citizens of Third Countries or to Stateless Persons of the Qualification of the Refugee or of Persons 

Otherwise in Need of International Protection, as well as Minimum Provisions on the Content of the Protection 

Granted] (L.D. No. 251 of 2007) art. 2(1)(e), G.U., Jan. 4, 2008, n. 3, http://www.gazzettaufficiale.it/atto/serie_ 

generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2008-01-04&atto.codiceRedazionale= 

007G0259&normativi=true&tipoVigenza=originario&tipoSerie=serie_generale¤tPage=1, archived at

https://perma.cc/Z798-PJ4A. 

8 Id. 
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The law also defines “status of refugee” as the recognition of a foreign citizen as a refugee by the 

state.9

 Persons eligible for “subsidiary protection” are foreign citizens who do not qualify to be 

recognized as refugees but with respect to whom there are reasonable grounds to consider that, if 

they return to their country of origin or, in the case of stateless persons, if they return to their 

country of previous usual residence, they would face a serious risk of suffering serious harm and, 

as a consequence of such risk, they may not avail themselves of the protection of that country.10 

A “claim for international protection” is one aimed at obtaining the status of refugee or the status 

of person eligible for subsidiary protection.11 A “requester of international protection” is a 

citizen of a third country or a stateless person who requests to be admitted to an internationally 

protected category.12 “Humanitarian protection,” in turn, is the protection granted to citizens of a 

third country who are found in objective and serious personal conditions that do not allow their 

removal from Italy and whose request for international protection is denied.13 “Unaccompanied 

minors” are those foreigners younger than eighteen years of age who are found, for whatever 

reasons, in the national territory, deprived of assistance or legal representation.14

International protection may be offered by the Italian state, political parties, or organizations that 

“control the state or part of its territory.”15 International protection consists of the adoption of 

adequate measures to prevent the persecution of or infliction of serious harm on the affected 

persons.16 The determination of whether an international organization controls a state or a part 

of its territory and if it provides protection depends on the guidelines issued by the Council of the 

European Union or, when appropriate, on the evaluation of the situation made by the competent 

international organizations.17 

According to the law, “acts of persecution” for purposes of granting refugee status must “(a) be 

serious enough, by their nature or frequency, to represent a grave violation of fundamental 

human rights,” as understood by the UN Declaration of Human Rights; or “(b) constitute the 

accumulation of various measures, among them the violation of human rights, whose impact is 

sufficiently serious to affect the person in a manner similar to that of letter (a).”18 Oppression of 

people on the basis of their race, religion, or national origin qualifies as persecution under 

Italian law.19 

                                                      

9 Id. art. 2(1)(f). 

10 Id. art. 2(1)(g). 

11 Id. art. 2(1)(i); Decreto del Ministero dell’Interno del 7 agosto 2015 [Decree of the Ministry of the Interior of 

August 7, 2015] art. 1(1)(a), http://www.sprar.it/images/Bando_SPRAR_2016-2017.pdf, archived at https://perma. 

cc/CQ6L-2FQH. 

12 Decreto del Ministero dell’Interno del 7 agosto 2015, art. 1(1)(b). 

13 Id. art. 1(1)(e). 

14 L.D. No. 251 of 2007, art. 2(1)(m). 

15 Id. art. 6(1)(a) & (b). 

16 Id. art. 6(2). 

17 Id. art. 6(3). 

18 Id. art. 7(1). 

19 Id. art. 8(1). 
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B. Regular Procedure for Requesting International Protection (Asylum) 

1. Submission of Asylum Requests 

Asylum requests must be submitted to the border police or to the office of the respective 

questore (head of the provincial police) with jurisdiction according to the requester’s residence.20 

Requesters must reveal all pertinent facts to the authorities21 and must produce all necessary 

documentation.22 When unaccompanied minors are involved, these authorities must immediately 

inform the System for the Protection of Asylum Seekers and Refugees (Sistema di Protezione per 

Richiedenti Asilo e Rifugiati, SPRAR)23 and the respective tribunal of minors for the adoption of 

appropriate measures.24 

The competent questore of the territory issues a temporary residence permit valid until the 

conclusion of the recognition procedure. The Ministry of the Interior may legally grant to 

persons who have obtained refugee status a basic subsistence stipend for a period not to exceed 

forty-five days.25 Refugees who lack their own means of subsistence or accommodations in Italy 

may receive assistance as well.26 Asylum requests may not be rejected for 

untimely submission.27 

 

                                                      

20 Decreto Legislativo 28 gennaio 2008, n. 25 Attuazione della direttiva 2005/85/CE recante norme minime per le 

procedure applicate negli Stati membri ai fini del riconoscimento e della revoca dello status di rifugiato [Legislative 

Decree No. 25 of January 28, 2008, Implementing Directive 2005/85/CE Concerning Minimum Provisions for the 

Procedure Applicable to Member States for Purposes of the Recognition and Revocation of the Status of Refugee] 

(L.D. No. 25 of 2008) art. 26(1), G.U. No. 40 (Feb. 16, 2008), http://www.gazzettaufficiale.it/atto/serie_generale/ 

caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2008-02-16&atto.codiceRedazionale=008G0044 

&normativi=true&tipoVigenza=originario&tipoSerie=serie_generale¤tPage=1, archived at https://perma.cc/ 

SYM2-PT24. 

21 L.D. No. 251 of 2007, art. 13(1). 

22 Law No. 39 of 1990, art. 4(5). 

23 MINISTRY OF THE INTERIOR, SYSTEM FOR THE PROTECTION OF ASYLUM SEEKERS AND REFUGEES – SPRAR, 

http://www.sprar.it/index.php?option=com_k2&view=itemlist&layout=category&task=category&id=19&Itemid=66

7 (last visited Feb. 1, 2016), archived at https://perma.cc/F8BE-Y4Q8. 

24 L.D. No. 25 of 2008, art. 26(6). 

25 Legge 28 febbraio 1990, n. 39 Conversione in legge, con modificazioni, del decreto-legge 30 dicembre 1989, n. 

416, recante norme urgenti in materia di asilo politico, di ingresso e soggiorno dei cittadini extracomunitari e di 

regolarizzazione dei cittadini extracomunitari ed apolidi gia’ presenti nel territorio dello Stato. Disposizioni in 

materia di asilo [Law No. 39 of February 28, 1990, Conversion into Law, with Amendments, of Decree-Law No. 

416 of December 30, 1989, Concerning Urgent Provisions on Political Asylum, Entry and Residence of 

Extracommunity Citizens and for the Regularization of Extracommunity Citizens and Stateless Persons Already 

Present in the Territory of the State. Provisions Concerning Asylum] (Law No. 39 of 1990) art. 4(7), G.U. No. 49 

(Feb. 28, 1990), http://www.gazzettaufficiale.it/eli/id/1990/03/21/090A1329/sg, archived at https://perma.cc/JWY4-

AYFT. 

26 Id. 

27 L.D. No. 25 of 2008, art. 8(1). 
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2. The National Commission and the Territorial Commissions 

The law creates the National Commission for the Right of Asylum (National Commission) and 

the Territorial Commissions for the Recognition of International Protection (Territorial 

Commissions). The National Commission’s role is to guide and coordinate the Territorial 

Commissions, update their composition, and gather statistical information.28 The National 

Commission is composed of a police prefect, representative of the President of the Council of 

Ministers, career diplomat, representative of the Department for Civil Liberties and Immigration, 

and representative of the Department of Public Security.29 A delegate of the United Nations 

High Commissioner for Refugees (UNHCR) in Italy has a right to participate in the National 

Commission’s meetings.30 

The Territorial Commissions’ role is to grant recognition of refugee status to a requester. They 

are administratively placed within the respective police prefecture and operate in coordination 

with the Department for Civil Liberties and Immigration of the Ministry of Interior.31 They are 

composed of representatives of the national police and local authorities, and a 

UNHCR representative.32 

3. Procedural Steps 

Within two days after receiving the requester’s documentation, the questore transfers it to the 

respective Territorial Commission, which must schedule a hearing to take place within thirty 

days.33 Whenever feasible, the hearing officer must be of the same gender as the requester.34 If 

necessary, the Territorial Commission uses interpreters during the hearing.35 A Territorial 

Commission may forgo setting up a hearing if there are sufficient grounds to accept the request 

for the recognition of refugee status, and when the public health authorities or an authorized 

physician certify the inability or impossibility of holding a hearing in person.36 A Territorial 

Commission may waive the requirement of a hearing with respect to requesters coming from 

certain specified countries.37 

                                                      

28 Legge 30 luglio 2002, n. 189 Modifica alla normativa in materia di immigrazione e di asilo [Law No. 189 of July 

30, 2002 Amending Provisions Related to Immigration and Asylum] (Law No. 189 of 2002) art. 1-quinquies(1), 

G.U. No. 199 (Aug. 26, 2002), http://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario 

?atto.dataPubblicazioneGazzetta=2002-08-26&atto.codiceRedazionale=002G0219&normativi=true&tipoVigenza= 

originario&tipoSerie=serie_generale¤tPage=1, archived at https://perma.cc/9GRF-J48B. 

29 Id.

30 Id.

31 L.D. No. 25 of 2008, art. 4(1). 

32 Law No. 189 of 2002, art. 1-quater(1). 

33 Id. art. 1-quater(2); L.D. No. 25 of 2008, art. 12(1). 

34 L.D. No. 25 of 2008, art. 12(1-bis). 

35 Law No. 189 of 2002, art. 1-quater(3). 

36 L.D. No. 25 of 2008, art. 12(2). 

37 Id. art. 12(2-bis). 
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Territorial Commissions must declare asylum requests inadmissible when the requester has 

already been recognized as a refugee by a state signatory of the Refugee Convention and may 

avail him/herself of such protection, and also when the requester has already filed an identical 

asylum request after the Commission has already made a decision, without stating new grounds 

concerning his/her personal situation or the situation of his/her country of origin.38 

If the request is declared admissible for review, the respective Territorial Commission must 

make a decision recognizing refugee status or affording the requester the status of subsidiary 

protection.39 To make a decision, the Territorial Commission must consider the eventual 

consequences of repatriation in relation to Italy’s international treaty obligations, including those 

under the European Union Treaty on Human Rights.40 The respective Territorial Commission 

must make a decision whether to grant recognition of refugee status within three days.41 The 

Territorial Commission’s written decision is communicated to the requester jointly with 

information about his/her right to appeal the decision.42 Public security authorities must be 

informed of rejections.43 

4. Exclusions 

The law prohibits the entry into the national territory of foreigners who attempt to petition for 

recognition of refugee status when the border police have determined that the requester 

 has already been recognized as a refugee in another country; 

 comes from a state other than his/her own that has adhered to the Refugee Convention, and in 

which he/she has resided for a period of time, excluding the time necessary for his/her transit 

from that territory to the Italian border;44 

 is suspected of committing a crime against peace, a war crime, or a crime against humanity, 

as defined in the international instruments drawn up to make provision in respect of 

such crimes; 

 has committed a serious nonpolitical crime outside Italy prior to his/her admission to Italy as 

a refugee; 

                                                      

38 Id. art. 29(1)(a) & (b). 

39 Id. art. 32(1)(a). 

40 Law No. 189 of 2002, art. 1-quater(4). 

41 Id. art. 1-quater(2). 

42 Id. art. 1-quater(3). 

43 Decreto Legislativo 25 luglio 1998, n. 286 Testo unico delle disposizioni concernenti la disciplina 

dell’immigrazione e norme sulla condizione dello straniero [Legislative Decree No. 286 of July 25, 1998, 

Consolidated Text of the Provisions Concerning the Discipline of Immigration and Provisions on the Conditions of 

Foreigners] (L.D. No. 286 of 1998) art. 10(6), G.U. No. 191 (Aug. 18, 1998), http://www.gazzettaufficiale.it/atto/ 

serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=1998-08-18&atto.codiceRedazionale 

=098G0348&normativi=true&tipoVigenza=originario&tipoSerie=serie_generale ¤tPage=1, archived at 

https://perma.cc/K8L9-ESAZ. 

44 Law No. 39 of 1990 art. 1(4). 
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 has been guilty of acts contrary to the purposes and principles of the UN; 

 has been convicted in Italy for a crime established in the Code of Criminal Procedure;45

 is considered as dangerous for the security of the state; or 

 belongs to a mafia organization, an organization dedicated to narcotics trafficking, or to a 

terrorist organization.46 

Refugee status is also denied on the basis of an individual evaluation when the legal grounds to 

claim such status are not met, there are well-founded reasons to believe that the foreigner 

constitutes a danger to the security of the state, or the foreigner constitutes a danger to public 

order and safety, after being convicted of certain crimes established in the Code of 

Criminal Procedure.47 

Foreigners who for any reason cease to receive protection or assistance from a UN agency other 

than the UNHCR when their situation has not been definitively established are still able to obtain 

refugee status in Italy.48 

Other grounds that result in cessation of refugee status in Italy are committing a crime against 

peace, a war crime, or a crime against humanity as defined by international law; committing 

outside Italy and before admission as an asylum requester a serious crime or acts that are 

particularly cruel, even if committed with a declared political goal, that may qualify as a serious 

crime; and being convicted of acts contrary to UN principles, as established in the UN Charter.49

5. Detention of Asylum Requesters 

Asylum requesters may not be detained solely because their asylum request is being reviewed.50 

However, these persons may be detained exclusively for the time necessary to make a decision 

on their asylum application to verify or determine their nationality or identity when they are not 

in possession of travel or identity documents or when, upon arrival in the territory, they 

presented false documents; to obtain the documents upon which the request for asylum is based 

when such documents are not immediately available; and while the procedure to determine the 

recognition of the right to be admitted in the country is pending.51 

                                                      

45 CODICE PROCEDURA PENALE [CODE OF CRIMINAL PROCEDURE] art. 380 ¶¶ 1 & 2, available at http://www.altalex. 

com/documents/codici-altalex/2014/10/30/codice-di-procedura-penale, archived at https://perma.cc/TU8U-6T9M. 

46 Law No. 39 of 1990, art. 1(4). 

47 L.D. No. 251 of 2007, art. 12(1). 

48 Id. art. 10(1). 

49 Id. art. 10(2). 

50 Law No. 189 of 2002) art. 32(1) (amending art. 1-bis of D.L. No. 416 of 1989). 

51 Id. 
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Asylum requesters must be kept in detention if they have made their asylum request after being 

stopped for having evaded or attempting to evade the border control, when they are illegal 

residents, and while subject to an expulsion or rejection procedure.52 

Detained persons are kept in identification centers in accordance with domestic, UN, and 

European legislation.53 Access to detained persons is allowed with prior authorization from the 

Ministry of the Interior to UNHCR representatives and to lawyers and organizations devoted to 

the protection of refugees.54 Requesters are given a temporary residence permit for the duration 

of the proceedings.55 

6. Right of Appeal 

Decisions of the National Commission and the Territorial Commissions concerning the 

admissibility of requests for refugee status are subject to judicial appeals.56 A decision rejecting 

the recognition of refugee status, ordering the expulsion of the requester, or rejecting or revoking 

a residence permit is subject to appeal before the respective regional administrative tribunal.57 

The same right of appeal is granted to requesters who have petitioned for the recognition of 

refugee status and are granted only subsidiary protection instead.58

C. Simplified Procedure Applicable to Asylum Requests 

The law establishes a simplified procedure for the review of asylum requests submitted by 

requesters who are detained after evading or attempting to evade the border control police, or 

who are subject to an expulsion or rejection procedure.59 Such requesters are detained in an 

identification center, and the questore must submit all necessary documentation to the respective 

Territorial Commission within two days.60 The Territorial Commission must schedule a hearing 

within fifteen days after receipt of the documentation61 and come to a decision on the request 

within three days.62 In the case of requesters subject to expulsion or rejection, the same 

procedure is followed, with the requesters being detained in the temporary identification center 

they are currently detained in until the proceedings have concluded, for up to thirty days.63 

                                                      

52 Id. art. 32(2). 

53 Id. art. 32(3). 

54 Id. art. 32(4). 

55 Id. art. 32(5). 

56 Law No. 39 of 1990, art. 4(6); L.D. No. 25 of 2008, art. 35(1). 

57 Id. art. 5(2) & (3). 

58 L.D. No. 25 of 2008, art. 35(1). 

59 D.L. No. 416 of 1989, art. 1-ter(1), as amended by Law No. 189 of 2002. 

60 L.D. No. 25 of 2008 art. 4(1). 

61 Id.

62 D.L. No. 416 of 1989, art. 1-ter(2), as amended by Law No. 189 of 2002. 

63 Id. art. 1-ter(3). 
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Unauthorized departure from identification centers amounts to renunciation of the request for 

recognition of refugee status.64

The Commission’s decision is subject to judicial appeal.65 The judicial appeal does not suspend 

the deportation process, however. Requesters may still ask the police prefect to authorize them 

to remain in the national territory until the end of the judicial proceedings.66 

D. Cessation of Refugee Status 

Refugee status ceases under Italian law when refugees voluntarily 

 avail themselves again of the protection of their country of citizenship; 

 have lost their citizenship and voluntarily reacquire it; 

 acquire Italian citizenship or another citizenship and enjoy the protection of their 

new country; 

 voluntarily reestablish themselves in the country that they left or to which they had not 

returned for fear of persecution; 

 may no longer renounce the protection of their country of citizenship, because they no longer 

comply with the requirements that had allowed for the recognition of refugee status; or 

 return to the country in which they had their habitual residence (if they are stateless persons), 

because they no longer comply with the requirements that had allowed for the recognition of 

the refugee status.67

The grounds stated in the last two points above do not apply when the refugees argue that there 

are overriding reasons arising from previous persecution of such nature that prompt them to 

reject the protection of their country of citizenship or, in the case of stateless persons, of the 

country in which they had their habitual residence.68 The change of circumstances may not be 

temporary and must be such as to eliminate the well-founded fear of persecution, and the serious 

humanitarian considerations that impede return to the country of origin must subsist.69 Cessation 

is declared on the basis of an individual evaluation of foreigners’ personal situations.70

                                                      

64 Id. art. 1-ter(4). 

65 Id. art. 1-ter(6). 

66 Id. 

67 L.D. No. 251 of 2007, art. 9(1). 

68 Id. art. 9(2-bis). 

69 Id. art. 9(2). 

70 Id. art. 9(3). 
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Refugee status is subject to revocation by the Italian authorities when legal grounds to deny the 

status arise, facts have been presented erroneously or omitted by the requester, or false 

documentation has been produced.71

Refugees or foreigners admitted to subsidiary protection are subject to expulsion when they are 

considered a danger to state security, or to the public order or security after being convicted of a 

crime punishable by incarceration for four to ten years.72

Requesters who have obtained refugee status or subsidiary protection may expressly renounce 

their status.73 The law also provides for a program for the voluntary repatriation of persons 

receiving international protection benefits.74

E. Handling of Refugees at the Border 

Border police are empowered to reject the entry of foreigners who appear at border crossings 

without complying with the requirements established in the law for their lawful entry into 

Italian territory.75 

The questore is authorized to reject refugee requests and order that requesters be escorted to the 

border when they have entered the national territory by evading border controls and were 

stopped at the border or immediately after.76 Foreigners who appear at the border crossing 

without complying with the legal requirements to enter the national territory but have 

nevertheless been temporarily admitted to the national territory out of need for “public 

assistance” may also be ordered expelled at the border.77 Smugglers who bring undocumented 

foreigners to the border must take them immediately under their charge and return the persons to 

their state of origin or to the state that issued the travel document possessed by the foreigners.78 

These provisions do not apply to persons who request political asylum, or who petition for the 

recognition of their status as refugees or as beneficiaries of temporary protective measures for 

humanitarian reasons.79 

Foreigners who are rejected at border crossing points are entitled to receive any assistance 

required to return to their places of origin.80 

                                                      

71 Id. art. 13(1)(a) & (b). 

72 Id. art. 20(1)(a) & (b). 

73 L.D. No. 25 of 2008, art. 34(1). 

74 L.D. No. 251 of 2007, art. 30(1). 

75 L.D. 286 of 1998, art. 10(1). See also Part II(B)(1), above. 

76 Id art. 10(2)(a) & (b). 

77 Id.

78 Id. art. 10(3). 

79 Id. art. 10(4). 

80 Id. art. 10(5). 
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F. Assistance Provided to Refugees 

Italian law protects the family unity of those receiving refugee status and the status of subsidiary 

protection.81 Family members who are not entitled to the status of international protection enjoy 

the same rights afforded to their family member who enjoys such status.82 Family members of 

persons who are granted international protection status who are present in the national territory 

and are not individually entitled to that right may obtain a residence permit on the basis of 

“family reasons” as provided in the law.83 Family members who are or would be excluded from 

refugee status or subject to subsidiary protection status are not eligible to receive these benefits.84

Except in limited circumstances, refugees and protected persons may circulate freely in the 

national territory.85 The law aims at promoting appropriate initiatives that address the 

disadvantages refugees and protected persons face after losing the protection of their country of 

origin, and to remove all obstacles that impede full integration.86

G. Treatment of Refugees 

Refugees and persons receiving subsidiary protection have the right to the same treatment 

established for Italian citizens who work for others or are self-employed, and who register with 

professional entities.87 Refugees and persons receiving subsidiary protection may also access 

public-sector employment under the conditions and limitations established for European Union 

citizens.88 These persons also have access to the Italian general educational system and 

professional training.89 In order to obtain professional qualifications and revalidate professional 

degrees obtained abroad, refugees and protected persons must comply with legal requirements.90

Refugees and protected persons have the right to the same treatment afforded to Italian citizens 

in matters of social and health assistance,91 including psychological treatment for previous 

torture and suffering experienced by them.92 

                                                      

81 L.D. No. 251 of 2007, art. 22(1). 

82 Id. art. 22(2). 

83 Id. art. 22(3). 

84 Id. art. 22(5). 

85 Id. art. 29(1). 

86 Id. art. 29(3). 

87 L.D. No. 251 of 2007, art. 25(1). 

88 Id. art. 25(2). 

89 Id. art. 26(2). 

90 Id. art. 26(3-bis). 

91 Id. art. 27(1). 

92 Id. art. 27(1-bis). 
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H. Residence Permits Granted to Refugees’ Family Members 

Residence permits for family reasons, from which refugees may benefit, are granted to 

 foreigners who have entered the national territory with an entry visa for family reunification 

or for reunification with minor children; 

 foreigners regularly residing in Italy on other grounds for at least one year who have 

contracted marriages within the national territory with Italian or European Union citizens, or 

with foreign citizens residing regularly in the country; 

 foreign family members regularly residing in Italy who are in the process of complying with 

requirements for reunification with Italian or European citizens residing in Italy, or with 

foreigners regularly residing in Italy (in such cases, the family permit is transformed into a 

residence permit for family reasons); and 

 foreign (including natural) parents of Italian minors residing in Italy (in such a case the 

residence permit for family reasons is also granted regardless of the possession of a valid 

residence permit, provided that the requesting parent has not been deprived of parental rights 

according to Italian law.)93

I. Monitoring of Refugees Within Italy 

The law sets up a protection system for asylum requesters and refugees that pivots around local 

entities dedicated to the assistance of these persons.94 The Ministry of the Interior appropriates 

funds annually to this effect.95 To expedite the protection system for asylum requesters, 

refugees, and foreigners with humanitarian permits, and to facilitate the coordination of this 

protection system at the national level, the Ministry of the Interior was empowered to create 

SPRAR for the purpose of providing information to, promoting, consulting with, monitoring, and 

providing technical support to local entities that provide assistance to asylum requesters, 

refugees, and foreigners with humanitarian permits. SPRAR is under the direct supervision of 

the National Association of Italian Municipalities.96

Among other functions, SPRAR’s duties include monitoring the whereabouts of asylum 

requesters, refugees, and foreigners with humanitarian permits in the country; creating a database 

concerning interventions at the local level for the benefit of these persons; and promoting 

repatriation programs in conjunction with the Ministry of Foreign Affairs.97

Italian authorities must inform the nearest diplomatic or consular representatives from a 

foreigner’s country of origin regarding the detainment of the foreigner or his/her expulsion from 

                                                      

93 L.D. No. 286 of 1998, art. 30(1). 

94 Law No. 189 of 2002, art. 1-sexies(1). 

95 Id. art. 1-sexies(2). 

96 Id. art. 1-sexies(4); ASSOCIAZIONE NAZIONALE COMUNI ITALIANE [NATIONAL ASSOCIATION OF ITALIAN 

MUNICIPALITIES], http://www.internazionali.anci.it, archived at https://perma.cc/S3C2-UC8E. 

97 Law No. 189 of 2002, art. 1-sexies(5)(a), (b) & (e). 
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the national territory; or concerning the protection of a foreign minor, the death of the foreigner, 

or the foreigner’s urgent hospitalization.98 The authorities must deliver the documents and 

objects belonging to the foreigner to those representative offices.99 The aforementioned 

information is not provided in the case of a foreigner who has presented an asylum claim, or 

whose refugee status has been recognized, or in the case of a foreigner benefitting from 

temporary protection measures for humanitarian reasons.100

Residence permits granted to persons who hold refugee status are valid for five years and are 

renewable.101 Holders of subsidiary protection status are also granted residence permits, which 

allow them to work and study in Italy.102 While holding refugee status granted in Italy, 

foreigners may travel overseas after obtaining authorization from the police.103 When persons 

subject to subsidiary protection have reasonable grounds not to request a passport from the 

diplomatic authorities of their country of citizenship, Italian police authorities may grant them a 

travel authorization.104 Applications for all types of permits may be rejected or the permits 

withdrawn for serious reasons related to national security and the public order.105

J. Unaccompanied Minors 

Unaccompanied minors found in the national territory who request international protection may 

benefit from the services provided by local entities specializing in that type of assistance.106 

Such minors are placed in the care of an adult family member who is a regular resident and 

present in Italy; if that is not possible, judicial authorities may adopt other measures aimed at 

protecting such minors.107 Absolute confidentiality is to be observed concerning the 

implementation of measures to ensure the safety of the minors and their relatives.108

                                                      

98 L.D. No. 286 of 1998, art. 2(7). 

99 Id. art. 2(7). 

100 Id. 

101 L.D. No. 251 of 2007, art. 23(1). 

102 Id. art. 23(2). 

103 Id. art. 24(1). 

104 Id. art. 24(2). 

105 Id. art. 24(3). 

106 Id. art. 28(1). 

107 Id. art. 28(2). 

108 Id. art. 28(3). 
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Japan 

Sayuri Umeda 

Foreign Law Specialist

SUMMARY Japan has not accepted many refugees in the past. It began accepting refugees in 1978 in 

order to grant resident status to refugees from Indochina. Japan acceded to the 1951 UN 

Convention Relating to the Status of Refugees on October 3, 1981, and to the 1967 UN 

Protocol Relating to the Status of Refugees on January 1, 1982. In 2010, Japan began 

accepting refugees for resettlement in Japan in accordance with the UN Convention 

and Protocol. 

When an alien applies for refugee status, he/she is permitted to stay in Japan during the 

period when his/her application is being examined, if requisite conditions are met. Once 

an applicant’s refugee status is recognized, he/she may obtain special resident status. 

Refugees can receive Japanese language classes, social adaptation training, and 

employment assistance. 

I. General Background 

The number of refugees who have been admitted to Japan is much smaller than the number 

admitted to European countries (see Part IV, below). The reasons may be that 

 Japan does not have strong ties with the countries where refugees are from; 

 Japan’s language barriers and cultural differences do not attract refugees; 

 Japan is located far from the areas where refugees are from; 

 Japan’s record on refugee acceptance does not attract refugees; and 

 the standards employed by Japan’s Ministry of Justice (MOJ) in recognizing refugees are 

very strict.1

II. Three Types of Refugee Acceptance 

Japan began accepting refugees and granting them resident status in 1978 after refugees from 

Vietnam, Laos, and Cambodia began arriving on Japanese coasts. Japan accepted 11,319 

Indochinese refugees as residents from 1978 to 2005.2

 

 

1 第6次出入国管理政策懇談会 [SIXTH IMMIGRATION POLICY CONFERENCE], 報告書「今後の出入国管理行政

の在り方」 [REPORT: FUTURE POLICY ON IMMIGRATION] 28 (Dec. 2014), available at http://www.moj.go.jp/ 

content/001130126.pdf, archived at https://perma.cc/D7CF-EZKB. 

2 Refugees, MINISTRY OF FOREIGN AFFAIRS (MOFA), http://www.mofa.go.jp/policy/refugee/japan.html (last visited 

Jan. 27, 2016), archived at https://perma.cc/XHC3-G2ZN. 
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The mass outflow of Indochinese refugees prompted Japan to join the international system on 

refugees. Japan acceded to the Convention Relating to the Status of Refugees (Convention) on 

October 3, 1981, and to the Protocol Relating to the Status of Refugees (Protocol) on January 1, 

1982.3

 After acceding to these treaties, Japan amended its Immigration Control Order, Cabinet 

Order No. 319 of October 4, 1951, to establish a system for recognizing refugee status, and 

renamed the Immigration Control Order as the Immigration Control and Refugee Recognition 

Act.4

 Under the Immigration Control and Refugee Recognition Act, the definition of “refugee” 

is the same as the definition in the Convention and Protocol. Japan recognized 633 refugees (the 

total number of applications was 22,559) from 1982 to 2014 under the Convention and Protocol.5

 

The Japanese government decided to start a resettlement program in 2008 and, from 2010 to 

2014, accepted eighty-six refugees for resettlement in Japan.6

III. Recognition of Refugee Status 

A. Refugee Application on Entry 

When an alien arrives at a port in Japan and claims to be a refugee, he/she must fill out a form 

for temporary permission to land.7

 An immigration inspector reviews the form and may grant 

temporary permission to land if the inspector deems that 

 the alien has escaped from a territory where his/her life, body, or physical freedom was 

imperiled for the reasons specified in the Refugee Convention or other similar reasons; and 

 it is reasonable to allow the alien to disembark temporarily.8

The temporary permission is granted for a period of up to six months. The examiner designates a 

facility where the alien stays during this period. The alien must stay within the boundary of the 

municipal government jurisdiction where the facility is located. The alien cannot work during 

this period.9

 

 

3

 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2aa10. 

html, archived at http://perma.cc/V86S-GU6S. 

4

 Cabinet Order No. 319 of October 4, 1951, Immigration Control and Refugee Recognition Act, amended by Act 

No. 79 of 2009, translation available on the Japanese Law Translation website, at http://www.japaneselaw 

translation.go.jp/law/detail/?printID=&id=1934&re=&vm=02, archived at https://perma.cc/ MV5R-MSJP. 

5

 MOFA, supra note 2; 難民問題と日本 III [Refugee Problems and Japan III], MOFA, http://www.mofa.go.jp/ 

mofaj/gaiko/nanmin/main3.html (last visited Jan. 27, 2016), archived at https://perma.cc/LH7N-DJS5. 

6 我が国における難民庇護の状況等 [Status of Refugee Protection in Japan], MOJ, http://www.moj.go.jp/ 

content/001138217.pdf (last visited Jan. 27, 2016), archived at https://perma.cc/XRZ2-UEM6. 

7

 Enforcement Ordinance of Immigration Control and Refugee Recognition Act (Enforcement Ordinance), MOJ 

Ordinance No. 54 of 1981, amended by MOJ Ordinance No. 36 of 2015, art. 18, para. 1, translation available at

http://www.japaneselawtranslation.go.jp/law/detail/?printID=&ft=2&re=02&dn=1&yo=refugee&ia=03&x=26&y=1

2&ky=&page=2&vm=02, archived at https://perma.cc/H6TL-F8UM. 

8

 Immigration Control and Refugee Recognition Act art. 18-2. 

9

 Enforcement Ordinance art. 18, para. 5. 
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When an alien applies for refugee recognition, he/she must appear in person with an application 

form and other necessary documents, including materials that prove refugee status.10 The 

Minister of Justice makes inquiries of the National Public Safety Commission as to whether the 

applicant has committed a serious nonpolitical crime outside Japan (citing article 1, item F-(b) of 

the Convention Relating to the Status of Refugees).11 

When the Minister of Justice recognizes a refugee applicant as a refugee, the Minister issues a 

certificate of refugee status. If the Minister denies refugee status, he/she sends the decision and 

reasons in writing to the applicant.12 

B. Status of a Refugee Applicant Who Is an Undocumented Resident 

In addition to applying for refugee status upon landing at a port in Japan, an alien can apply for 

refugee status after he/she has entered the country.13 It is possible that the situation that creates 

the need for an alien to apply for refugee status arises after the alien entered Japan.14 There is no 

provision that restricts refugee status applications from aliens whose refugee status applications 

were denied in the past. 

When an alien without legal resident status, such as an undocumented resident, applies for 

refugee recognition, he/she is permitted to temporarily stay in Japan, and deportation procedures 

are suspended if he/she meets certain requirements, such as not having a criminal record and not 

being a flight risk. Among other requirements, an alien without legal resident status can apply 

for refugee status recognition if 

 the alien submits an application within six months after disembarking in Japan, or six months 

from the day the alien became aware of the circumstances that would cause him/her to 

become a refugee while he/she is in Japan; or 

 the alien directly enters Japan from a territory where he/she may suffer the types of 

persecution stipulated in the Refugee Convention.15

C. Objection to Refugee Status Denial 

When the Minister of Justice denies an applicant’s request for refugee status, the applicant can 

file an objection with the Minister within seven days from the date that he/she has received the 

notice of denial.16 The Minister must then consult with refugee examination counselors whom 

 

10 Id. art. 55, para. 1. 

11 Id. art. 55, para. 4. 

12 Immigration Control and Refugee Recognition Act art. 61-2. 

13 Id. 

14 Id. art. 61-2-2, para. 1. 

15 Id. art. 61-2-4, para. 1, item 6 (quoting art. 61-2-2, para. 1, items 1 & 2). 

16 Id. art. 61-2-9, paras. 1 & 2. 
Refugee Law and Policy: Japan 

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the Minister has appointed as experts able to make fair judgments.17 When the applicant requests 

an oral presentation or a refugee examination counselor deems it necessary, the refugee 

examination counselor is given an opportunity to examine the applicant. When the Minister 

renders a decision, a summary of the refugee counselor’s opinion must be presented to 

the applicant.18 

IV. Recent Issues 

As the following table illustrates, the number of refugees afforded recognition of refugee status 

under the Convention and Protocol has not increased in recent years: 

 2006 2007 2008 2009 2010 2011 2012 2013 2014 

Recognition of refugee 

status 

34 41 57 30 39 21 18 6 11 

Resettled refugees 0 0 0 0 27 18 0 18 23 

Special stay 53 88 360 501 363 248 112 151 110 

Source: MOJ, 我が国における難民庇護の状況等 [Status of Refugee Protection in Japan], sched. 3, 

http://www.moj.go.jp/content/001138217.pdf (last visited Jan. 27, 2016), archived at https://perma.cc/ XRZ2-

UEM6. 

In contrast, applications for refugee status under the Convention and the Protocol and objections 

to the denial of refugee status applications have rapidly increased in recent years: 

 2006 2007 2008 2009 2010 2011 2012 2013 2014 

Refugee application 954 816 1,549 1,388 1,202 1,867 2,545 3,250 5,000 

Objections 340 362 429 1,156 859 1,719 1,738 2,408 2,533 

Source: MOJ, 難民認定申請数の推移 [Trends in Asylum Numbers] app. 1, tbl. 1, http://www.moj.go. 

jp/content/001138214.pdf (last visited Jan. 27, 2016), archived at https://perma.cc/CTA3-XS7X. 

Until 2005, the number of applications was even smaller. Before 1996, the number of 

applications was less than one hundred.19 

 

17 Id. art. 61-2-10, para. 2. 

18 Id. art. 61-2-9, paras. 4 & 5. 

19 難民認定申請及び処理数の推移 [Trends in Numbers of Refugee Recognition Applications and Numbers of 

Cases Processed], MOJ, http://www.moj.go.jp/nyuukokukanri/kouhou/press_060224-1_060224-1-4.html (last 

visited Jan. 27, 2016), archived at https://perma.cc/C9MW-V5XV. 
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Such a rapid increase in the number of applications and objections has caused delays in 

processing them. A conference convened by the MOJ examined the situation and identified 

three types of problematic cases: 

 Aliens claiming refugee status on the basis of situations that are not listed in the 

Refugee Convention 

 Aliens repeatedly applying for refugee status on the basis of situations for which their 

application was previously denied 

 Aliens repeatedly applying for refugee status without a proper basis merely to 

postpone deportation20

The conference suggested that the government change the refugee recognition system, which 

enables and attracts aliens and enables them to keep applying for refugee status or request 

reexamination without justification.21 

V. Resident Status in Japan 

An alien who is recognized as a refugee and has not yet acquired legal resident status is given 

special resident status for up to five years if, among other requirements, the alien 

 submits an application for refugee recognition within six months after disembarking in Japan, 

or six months from the day he/she became aware of the circumstances that would cause 

him/her to become a refugee while in Japan; or 

 directly entered Japan from a territory where he/she may suffer the types of persecution 

stipulated in the Refugee Convention.22

Even if those requirements are not met, an alien may be exceptionally permitted to live in Japan 

when the Minister of Justice recognizes a special reason.23

There is no particular restriction on special residents’ activities.24 There is no system for 

monitoring refugees, although refugees, like all residents, are required to report changes in their 

registered address.25 

 

20 第6次出入国管理政策懇談会・難民認定制度に関する専門部会 [6TH IMMIGRATION POLICY CONFERENCE,

SUB-CONFERENCE BY EXPERTS ON REFUGEE RECOGNITION SYSTEM], 難民認定制度の見直しの方向性に関する検

討結果(報告) [RESULTS OF DISCUSSION OF REFUGEE RECOGNITION SYSTEM REVIEW POLICY (REPORT)] 11 (Dec. 

2014), http://www.moj.go.jp/content/001130133.pdf, archived at https://perma.cc/S5PS-RDNZ. 

21 SIXTH IMMIGRATION POLICY CONFERENCE, supra note 1, at 31. 

22 Immigration Control and Refugee Recognition Act art. 61-2-2, para. 1, items 1 & 2. 

23 Id. art. 62-2-2, para. 2. 

24 Article 19 of the Immigration Control and Refugee Recognition Act set limitations on the activities of aliens who 

have a certain resident status. There is no such limitation on permanent residents and special residents, however. 

25 Immigration Control and Refugee Recognition Act art. 19-9. 
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One of the conditions for a refugee to obtain permanent resident status has been relaxed, 

compared with other aliens: the Minister of Justice has the discretion to grant permanent 

residence status to refugees who do not have sufficient income, assets, or the ability to support 

themselves,26 which is usually required for aliens to obtain permanent residence.27

VI. Assistance to Refugees in Japan 

The Japanese government provides the following programs to refugees at the International 

Refugee Assistance Headquarters’ Support Center within the Foundation for the Welfare and 

Education of the Asian People: 

 572 hours of Japanese-language education 

 Social adaptation training 

 Employment counseling and placement 

While refugees are enrolled in the programs, free accommodation is provided for up to 

180 days.28 

VII. Resettlement in Japan 

On December 16, 2008, the Cabinet approved a pilot resettlement project. Three days later, the 

Inter-ministerial Coordination Council agreed on trial admission arrangements and specific plans 

for providing support for the local integration of refugees admitted into Japan for resettlement. 

The government decided to admit approximately thirty refugees (consisting of families) once a 

year for three consecutive years beginning in fiscal year 2010. Burmese refugees in the Mae La 

Camp in Thailand were chosen for the plan. In fiscal year 2010, five families consisting of 

twenty-seven refugees arrived in Japan and went through the 180-day integration program.29

These refugees do not have to apply for refugee status. They are accepted as special residents 

and therefore can apply for special resident status.30 

 

26 Id. art. 61-2-11. 

27 Id. art. 22. 

28 平成18年度からの国際救援センターの後継難民定住支援施設及び同施設において実施する難民定住

支援プログラムの概要, 難民対策連絡調整会議幹事会第5回会合資料 [Overview of Successor Facilities for 

Refugee Resettlement Support to Be Implemented from 2006 and Refugee Resettlement Support Programs at the 

Facilities, 5th Refugee Measures Coordination Executive Secretaries Meeting Material], CABINET SECRETARIAT

(Mar. 3, 2006), http://www.cas.go.jp/jp/seisaku/nanmin/060303program.html, archived at https://perma.cc/6KSCW464. 

29 MOFA, supra note 2. 

30 出入国管理及び難民認定法第7条第1項第2号の規定に基づき同法別表第2の定住者の項の下欄に掲

げる地位を定める件 [Defining the Status of Long-Term Residents as Listed in the Lower Column of Appendix 

Chart No. 2 of the Immigration Control and Refugee Recognition Act in Accordance with Article 7, Paragraph 1, 

Item 2 of the Same Act), MOJ Notification No. 132 of 1990, amended by MOJ Notification No. 37 of 2010. 
Refugee Law and Policy: Japan 

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VIII. Naturalization 

Requirements for naturalization are the same for refugees as for other aliens. When an alien 

staying in Japan wants to become naturalized, he/she must 

 have lived in Japan for more than five consecutive years; 

 be of good conduct; 

 be at least twenty years of age and legally capable; 

 have sufficient income, assets, or the ability to support him/herself; 

 have no nationality or give up his/her current nationality by obtaining Japanese 

nationality; and 

 have never been a member of an organization that aims to destroy the Japanese government 

by violent measures.31 

Some requirements are exempted, depending on the alien’s situation, such as if the alien is 

married to a Japanese national or is the child of a Japanese national.32 

 

31 Nationality Act, Act No. 147 of 1950, amended by Act No. 70 of 2014, art. 5. 

32 Id. arts. 5–8. 
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Jordan 

Issam M. Saliba 

Senior Foreign Law Specialist 

SUMMARY Jordan’s current refugee population is estimated to be 1.1 million, including Syrians, Iraqis, 

and others. While its Constitution provides protection against extradition for political 

asylum seekers, Jordan has not enacted domestic legislation to deal with refugees and is 

not a party to the 1951 Convention on Refugees or its 1967 Protocol. The legal instrument 

that provides the legal framework for the treatment of refugees is a 1998 Memorandum of 

Understanding signed between Jordan and the UNHCR. 

I. General Background 

The UN High Commissioner for Refugees (UNHCR) estimated that the number of refugees and 

asylum seekers in Jordan would reach a total of 1.1 million by December 2015, including 57,140 

Iraqis and 937,830 Syrians, based on trends and registration data from early 2014.1 Despite its 

scarce resources, Jordan is considered a welcoming country and has provided refugees with 

health, security, and educational services, and offered the land on which the two Syrian refugee 

camps of Azraq and Zaatari were built.2 However, Jordan lacks a clear legal framework to deal 

with refugees and asylum seekers. 

II. Constitutional Provisions 

Article 21(1) of the Jordanian Constitution provides that “[p]olitical refugees shall not be 

extradited on account of their political beliefs or for their defense of liberty.”3 However, it does 

not appear that Jordan has enacted any legislation that regulates the status of refugees, including 

those who seek asylum for political reasons. 

Furthermore, Jordan is not a signatory and has not become a party to the Convention relating to 

the Status of Refugees of 1951 (1951 Convention) or its 1967 Protocol.4

 

                                                            

1 2015 UNHCR Country Operations Profile – Jordan, UNHCR, http://www.unhcr.org/pages/49e486566.html (last 

visited Jan. 6, 2016), archived at https://perma.cc/Q3LQ-7NNA. 

2 Id. 

3

 CONSTITUTION OF THE HASHEMITE KINGDOM OF JORDAN, as amended, http://www.parliament.jo/node/137 (in 

Arabic), archived at https://perma.cc/4D2K-CYDL. 

4 See UNHCR, SUBMISSION BY THE UNHCR FOR THE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS’

COMPILATION REPORT – UNIVERSAL PERIODIC REVIEW: JORDAN 1 (Mar. 2013), available at http://www.refworld. 

org/pdfid/513d90172.pdf, archived at https://perma.cc/7GE7-28JB. 
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The Law Library of Congress 198

III. Domestic Legislation 

In the absence of special legislation addressing their status, refugees and asylum seekers in 

Jordan are subject to Law No. 24 of 1973 concerning Residency and Foreigners’ Affairs.5 This 

Law applies to all foreigners without distinction between refugees and nonrefugees. Article 2 

defines a foreigner as anyone who does not have Jordanian nationality. The Law refers to 

refugees in some of its articles but does not define them as a separate category. For example, 

article 4 refers to a travel permit issued to a refugee by the country of his residence as valid 

documentation allowing him to enter Jordan. Of particular interest is article 10, which gives the 

Minister of Interior the authority, based on the recommendation of the general security director, 

to issue regulations concerning the travel documentation that Jordan may grant to refugees 

within its borders, despite there not being any regulations addressing the conditions under which 

those refugees can be admitted into the country. 

A 2015 report by the International Labor Organization (ILO) confirms the lack of adequate legal 

protection for refugees in Jordan, stating as follows: 

Jordanian law makes limited references to asylum seekers and refugees. Despite having 

the highest ratio of refugees to citizens in the world, Jordan has not signed the Refugee 

Convention of 1951 or its subsequent 1967 Protocol. Several concerns are usually cited 

over Jordan’s non-signatory status, including the politically and socially complex—and 

yet unresolved—Palestinian refugee issue, popular sentiment against refugee integration, 

lack of resources and capacity to provide for refugees, and misinformation about the 

perceived social and economic burden of refugees and related questions of 

national security. 

. . . 

In practice, Jordan avoids the official recognition of refugees under its domestic laws and 

prefers to refer to Syrian refugees as ‘visitors’, ‘irregular guests’, ‘Arab brothers’ or 

simply ‘guests’, which has no legal meaning under domestic laws, and was the same for 

Iraqi refugees under the MOU. This was further confirmed in an interview with the MOL 

[Ministry of Labour], Labour Inspection department.6

 

                                                            

5

 Law No. 24 of 1973 concerning Residency and Foreigners’ Affairs, available at http://www.elawyerassistance.com/LegislationsPDF/jordan/residencylawAr.pdf (in Arabic; last visited Jan. 6, 2016), archived at

https://perma.cc/RGH6-KPBH. 

6

 INTERNATIONAL LABOUR ORGANIZATION, ACCESS TO WORK FOR SYRIAN REFUGEES IN JORDAN: A DISCUSSION 

PAPER ON LABOUR AND REFUGEE LAWS AND POLICES 11–12 (2015), 

https://data.unhcr.org/syrianrefugees/download.php?id=8919, archived at https://perma.cc/QKT3-GCU2. 
Refugee Law and Policy: Jordan 

The Law Library of Congress 199

IV. Memorandum of Understanding Between Jordan and the UNHCR 

In 1998, Jordan and the UNHCR signed a memorandum of understanding (MOU) to allow the 

UNHCR to act within its mandate to provide international protection to persons falling within its 

mandate. This MOU has become the legal framework under which refugees are treated and 

processed in Jordan.7 

The MOU provides that Jordan accepts the definition of “refugee” contained in the 1951 

Convention.8

 Jordan also agrees to respect the principle of nonrefoulement, meaning that no 

person seeking asylum in Jordan will be returned to a county where his or her life or freedom 

could be threatened because of his or her race, religion, nationality, membership of a particular 

social group, or political opinion.9 Jordan also agrees that asylum seekers and refugees should 

receive treatment according to internationally accepted standards.10 

Under the MOU, a refugee is granted legal status and the UNHCR will endeavor to find the 

refugee a durable solution, be it voluntary repatriation to the country of origin or resettlement in 

a third country. The stay of the refugee in Jordan should not exceed six months.11 

Jordan and the UNHCR also agreed to respect the following rights and privileges of refugees and 

asylum seekers: (1) freedom to practice their religion and provide religious education to their 

children, and freedom from discrimination based on race, religion, or nationality, provided that 

religious rights are not contrary to laws, regulations, and public decency;12 (2) free access to 

courts of law with the same right of litigation and legal assistance as is accorded Jordanian 

nationals, wherever possible;13 and (3) exemption from overstay fines and departure fees.14

The UNHCR is allowed to interview asylum seekers who enter Jordan illegally and is to make its 

determination as to their status within seven days. In exceptional cases where another procedure 

is needed the determination period should not exceed one month.15

An article published in the Jordan Times refers to a 2014 amendment of the MOU. It reports 

that the amendment extended the time for UNHCR to process refugee applications from 

“between 21 and 30 days” to ninety days and extended “the validity of a refugee identification 

                                                            

7

 Memorandum of Understanding Between the Government of Jordan and UNHCR (Apr. 5, 1998), available at

http://mawgeng.a.m.f.unblog.fr/files/2009/02/moujordan.doc, archived at https://perma.cc/N28J-MV22t. 

8 Id. art. 1. 

9 Id. art. 2. 

10 Id. art. 5. 

11 Id. 

12 Id. art. 6. 

13 Id. art. 7. 

14 Id. art. 10. 

15 Id. art. 3. 
Refugee Law and Policy: Jordan 

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card to one year instead of six months.”16 According to a 2015 report by the International 

Human Rights Clinic (IHRC) and the Norwegian Refugee Council (NRC), the 2014 amendment 

has not been made publicly available.17 

V. Jordan’s Policies Towards Refugees 

In the absence of a legal framework to deal with refugees, the Jordanian policies in this respect 

are unclear. The UNHCR asserts that Jordan provides asylum for many Syrians, Iraqis, and 

others, recognizes them as refugees, and has granted Syrian refugees in host communities access 

to health, education, and other services.18 As previously mentioned, the ILO report relies on a 

confirmation by a Jordanian government official to assert that Jordan avoids recognizing Syrians 

as refugees.19 The report also states that “Syrians entering the country as asylum seekers or who 

are registered as refugees with UNHCR are not given residency,”20 while the UNHCR asserts 

that “Syrian nationals require neither a visa to enter nor a residence permit to remain in 

Jordan.”21 A 2015 report by the European University Institute states that Jordan restricted the 

movement of Syrian refugees and instructed the UNHCR to stop issuing Asylum Seeker 

Certificates (ASCs), which are “indispensable for obtaining Ministry of Interior (MoI) Service 

Card for refugees’ access to public health care and education services in host communities.”22

The ILO report states that Jordan hosts over two million Palestinian refugees, “the largest 

number of Palestinian refugees of any one country in the world.”23 However, most of these 

Palestinians have obtained full Jordanian citizenship, according to the United Nations Relief and 

Works Agency for Palestine Refugees in the Near East (UNRWA).24

                                                            

16 Khetam Malkawi, Gov’t, UNHCR Sign Amendments to Cooperation Memo, JORDAN TIMES (Mar. 31, 2014), 

http://www.jordantimes.com/news/local/gov%E2%80%99t-unhcr-sign-amendments-cooperation-memo, archived at

https://perma.cc/3VRX-NFGH. 

17 IHRC & NRC, REGISTERING RIGHTS: SYRIAN REFUGEES AND THE DOCUMENTATION OF BIRTHS, MARRIAGES, AND 

DEATHS IN JORDAN 36 (Oct. 2014), http://www.nrc.no/arch/_img/9208964.pdf, archived at https://perma.cc/Q8A5-

GEJA. 

18 2015 UNHCR Country Operations Profile – Jordan, supra note 1. 

19 INTERNATIONAL LABOUR ORGANIZATION, supra note 6. 

20 Id. 

21 UNHCR, SUBMISSION BY THE UNHCR FOR THE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS’

COMPILATION REPORT – UNIVERSAL PERIODIC REVIEW: JORDAN 2, supra note 4. 

22 EUROPEAN UNIVERSITY INSTITUTE (EUI), SYRIAN REFUGEES IN JORDAN: A REALITY CHECK (Feb. 2015), 

http://cadmus.eui.eu/bitstream/handle/1814/34904/MPC_2015-02_PB.pdf?sequence=1&isAllowed=y, archived at

https://perma.cc/9NCQ-4TKB. 

23 INTERNATIONAL LABOUR ORGANIZATION, supra note 6. 

24 Where We Work, UNRWA, http://www.unrwa.org/where-we-work/jordan, archived at https://perma.cc/ZW4Y5ENV. 
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Kenya 

Hanibal Goitom 

Foreign Law Specialist 

SUMMARY Kenya hosts a large asylum-seeking and refugee population, which at present is managed 

jointly by the country’s Department of Refugee Affairs (DRA) and the United Nations 

High Commissioner for Refugees (UNHCR) under the 2006 Refugees Act and the 2009 

Refugees Regulations. Kenya recognizes two classes of refugees: prima facie refugees 

and statutory refugees. All asylum seekers go through an initial registration. At this point 

in the process, they are screened for their eligibility to seek asylum and to obtain 

accelerated processing. This is followed by an interview. 

 Recent terrorist attacks are said to have prompted Kenya to introduce changes to its 

refugee policy. One notable change was the introduction of an encampment policy 

requiring all asylum seekers and refugees in urban areas to relocate to designated camps. 

Although refugees have been allowed to engage in informal employment in the past, this 

appears to be getting increasingly difficult as the encampment policy constrains their 

ability to move about the country. In addition, work permits are rarely issued to refugees. 

Similarly, while refugees are technically free to apply for naturalization if they meet 

certain requirements, which on their face are not prohibitive, in practice Kenya does not 

naturalize refugees. 

 An asylum seeker is issued an asylum-seeker pass upon applying for refugee status, which 

is replaced by a refugee identification card after his application is granted. All asylum 

seekers and refugees are required to live in their designated refugee camps and need a 

movement pass in order to travel anywhere outside the camp. 

I. General Background 

Kenya hosts a large asylum-seeking and refugee population. This is due largely to the country’s 

location in a conflict-prone area. For example, neighboring countries like Somalia and South 

Sudan have experienced ongoing civil wars that have caused internal and external displacement 

of large segments of their population. According to the United Nations High Commissioner for 

Refugees (UNHCR), there were a total of 625,250 refugees and asylum seekers in the country in 

2014.1

 This figure increased to 650,610 in 2015.2 The majority of these people (close to 70%) 

were Somali citizens, while persons from South Sudan made up around 20% of the asylumseeking and refugee population.3

 The remainder included Ethiopians, Congolese, and around 

20,000 stateless persons.4

 

1

 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR), GLOBAL APPEAL 2014–2015: KENYA 2 (Dec. 1, 

2013), http://www.unhcr.org/528a0a244.html, archived at http://perma.cc/68GJ-CQCQ. 

2

 UNHCR, GLOBAL APPEAL 2015 UPDATE: KENYA 2 (Dec. 1, 2014), http://www.unhcr.org/5461e600b.html, 

archived at http://perma.cc/NX7P-GUYZ. 

3 Id. 

4 Id. 
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Refugees in Kenya primarily reside in the Dadaab refugee complex (which is in Garissa County 

and consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios) and the Kakuma 

Refugee Camp located in Turkana County.5

 In addition, as of April 2014, there were reportedly 

over 50,000 urban refugees in Nairobi.6

Kenya is signatory to a number of international treaties applicable to individuals seeking asylum 

and protection. For instance, it acceded to the 1951 United Nations Convention Relating to the 

Status of Refugees on May 16, 1966, and its 1967 Protocol in 1981.7

 Kenya is also a state party 

to the 1969 African Union (AU) (formerly known as the Organization of African Unity, OAU) 

Convention Governing the Specific Aspects of Refugee Problems in Africa, which it signed in 

September 1969 and ratified in June 1992.8

 In addition, Kenya acceded to the 1984 Convention 

against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment in February 

1997.9

 Of particular relevance to refugee issues is a provision in the Convention on 

nonrefoulement, which states that “[n]o 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.”10 

However, Kenya only recently put in place a national legal framework governing refugee matters 

and assumed partial responsibility for the refugee status determination (RSD) process. It did this 

when it took a step to implement its obligations under international law by enacting the Refugees 

Act in 2006, which took effect the next year, and its subsidiary legislation, the Refugees 

(Reception, Registration and Adjudication) Regulations, in 2009 (Refugees Regulations).11 

 

5

 UNHCR & INTERNATIONAL ORGANIZATION OF MIGRATION (IOM), JOINT RETURN INTENTION SURVEY REPORT

2014 at 21(updated Feb. 25, 2015), http://data.unhcr.org/horn-of-africa/download.php?id=1535, archived at 

http://perma.cc/57W6-Z8A6; Kakuma, INTERNATIONAL ORGANIZATION FOR MIGRATION: KENYA, 

http://kenya.iom.int/kakuma (last visited Dec. 31, 2015), archived at https://perma.cc/7HAD-KS9K. 

6 UNHCR Seeking Access to Detained Asylum-Seekers and Refugees in Nairobi, UNHCR (Apr. 7, 2014), 

http://www.unhcr.org/5342b35d9.html, archived at https://perma.cc/UW48-F2GB. 

7 States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, UNHCR, 

http://www.unhcr.org/3b73b0d63.html (last visited, Dec. 28, 2015), archived at https://perma.cc/2NMZ-C8M3. 

8 Ratification Table: AU Convention Governing Specific Aspects of Refugee Problems in Africa, AFRICAN 

COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, http://www.achpr.org/instruments/refugee-convention/ratification/

(last visited Dec. 28, 2015), archived at https://perma.cc/35NK-ZPFG. 

9 Status: Kenya, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=treaty& 

mtdsg_no=iv-9&chapter=4&lang=en (last visited Dec. 28, 2015), archived at perma.cc/6XUT-YGU4. 

10 Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment art. 3, Dec. 10, 

1984, 1465 U.N.T.S. 85, available on the Office of the United Nations High Commissioner for Human Rights 

(OHCHR) website, at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx, archived at

https://perma.cc/LSG2-DZQT. 

11 Sara Pavanello et al., Hidden and Exposed: Urban Refugees in Nairobi, Kenya 15 (HPG Working Paper, Mar. 

2010), available on the Overseas Development Institute (ODI) website, at http://www.odi.org/sites/odi.org.uk/ 

files/odi-assets/publications-opinion-files/5858.pdf, archived at https://perma.cc/MQW7-A464; Refugees Act No. 

13 of 2006, 17 LAWS OF KENYA, Cap. 173 (rev. ed. 2014), available on the Kenya Law website, at 

http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20173, archived at https://perma.cc/PHC7-

67EH; Refugees (Reception, Registration and Adjudication) Regulations, 2009 (Refugees Regulations), 17 LAWS OF 

KENYA, Cap. 173 (rev. ed. 2014), http://www.kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%20 

173#KE/LEG/EN/AR/R/CHAPTER%20173/SUBLEG/HC_2_V1, archived at https://perma.cc/Z9BJ-UBT6. 
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Among other things, the Act established the Department of Refugee Affairs (DRA), whose 

responsibilities include receiving and processing applications for refugee status.12 Prior to that, 

refugee matters were governed under the now repealed Immigration Act and Alien Restriction 

Act, and RSDs and other matters relating to refugee management were delegated to the 

UNHCR.13 This practice continued long after 2006. It was only in 2014 that the DRA assumed 

some RSD functions, mainly endorsement of RSD determinations made by the UNHCR and 

issuance of notifications of recognition to refugees that meet the required criteria under the 

Refugees Act.14 The UNHCR is currently in the process of transferring all RSD functions to the 

DRA, and this transfer was scheduled to be finalized by the beginning of 2016.15 

This report describes key aspects of the Kenyan refugee legal framework (the Refugees Act of 

2006 and the 2009 Refugees Regulations) and recent legal developments relevant to the 

management of the asylum-seeking and refugee population in Kenya. 

II. Key Provisions of the Refugees Act 

A. Definition 

The Refugees Act recognizes two classes of refugees: statutory and prima facie refugees.16 The 

former category applies to a person who has “a well-founded fear of being persecuted for reasons 

of race, religion, sex, nationality, membership of a particular social group or political opinion.”17 

The latter relates to a person who, “owing to external aggression, occupation, foreign domination 

or events seriously disturbing public order in any part or whole of his country of origin or 

nationality is compelled to leave his place of habitual residence.”18 Under the Act, asylum is 

“shelter and protection granted by the Government to persons qualifying for refugee status,” 

while an asylum seeker is “a person seeking refugee status.”19 

The Minister of Interior and Coordination of National Government is empowered to declare a 

class of persons prima facie refugees and to amend or revoke such declaration.20 The most 

 

12 Refugees Act § 7. 

13 REFUGEE CONSORTIUM OF KENYA, ASYLUM UNDER THREAT: ASSESSING THE PROTECTION OF SOMALI REFUGEES 

IN DADAAB REFUGEE CAMPS AND ALONG THE MIGRATION CORRIDOR 15 (June 2012), available on the Reliefweb 

website, at http://reliefweb.int/sites/reliefweb.int/files/resources/Asylum_Under_Threat.pdf, archived at

https://perma.cc/E9PM-9C83. 

14 MADELINE GARLICK ET AL., UNHCR POLICY DEVELOPMENT AND EVALUATION SERVICE, BUILDING ON THE 

FOUNDATION: FORMATIVE EVALUATION OF THE REFUGEE STATUS DETERMINATION (RSD) TRANSITION PROCESS IN 

KENYA ¶¶ 49, 68 & 255, U.N. Doc. PDES/2015/01 (Apr. 2015), http://www.unhcr.org/5551f3c49.pdf, archived at 

https://perma.cc/EK8R-LWS5. 

15 Id. ¶¶ 54 & 68. 

16 Refugees Act § 3. 

17 Id. 

18 Id. 

19 Id. § 2. 

20 Id. § 3. 
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recent example of a demonstration of this authority came in June 2014 when, acting on 

humanitarian grounds, Interior Minister Joseph Ole Lenku declared as prima facie refugees 

South Sudanese persons fleeing the civil war in their country.21 Kenya is said to have granted 

the same protection to persons from South and Central Somalia.22

B. Disqualification, Cessation, Withdrawal, and Expulsion 

Certain persons are disqualified from attaining refugee status, while persons who have been 

granted such status may lose it under some circumstances. A person is ineligible for refugee 

status if the person 

 has committed a “crime against peace, a war crime, or a crime against humanity”; 

 has committed a serious nonpolitical crime in or outside of Kenya; 

 has committed acts “contrary to the purposes of the United Nations or the African Union”; or 

 holds dual citizenship and could seek protection in one of the countries of his citizenship, and 

therefore does not have a well-founded fear of persecution.23

 

A person who has been granted refugee status may lose that status through a voluntary or 

involuntary change in circumstances. For instance, if a person “voluntarily re-avails himself of 

the protection of his nationality,” voluntarily reacquires a lost citizenship or acquires a new 

citizenship, or voluntarily reestablishes himself in the country where he feared persecution, he 

would lose his refugee status.24 A person may also lose his refugee status as a result of changes 

to his circumstances independent of his own doing—for example, where the circumstances that 

formed the basis for the granting of status have “ceased to exist.”25 

The DRA may withdraw the refugee status of any person if it has “reasonable grounds for 

believing” that the person has ceased to be a refugee or should not have been recognized as such 

in the first place.26 This may occur if the person was ineligible for the status or the status was 

granted “erroneously as a result of misrepresentation or concealment of facts that were material 

to the refugee status determination.”27 In addition, the Act authorizes the DRA to withdraw the 

refugee status of any person if it has reasonable grounds to believe that the person is a danger to 

national security or to any community in the country.28

 

21 Declaration of Prima Facie Refugees, GAZETTE NOTICE [GN] No. 5274, 116(91) THE KENYA GAZETTE (Aug. 1, 

2014), http://kenyalaw.org/kenya_gazette/gazette/notice/164302, archived at https://perma.cc/ZQR4-NLHB. 

22 GARLICK ET AL., supra note 14, ¶ 258. 

23 Refugees Act § 4. 

24 Id. § 5. 

25 Id. 

26 Id. § 20. 

27 Refugees Regulations § 37. 

28 Refugees Act § 19. 
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The withdrawal of the refugee status of a person also results in the withdrawal of all derivative 

rights. When a person is granted refugee status, members of his family (including a spouse, 

dependent child, or sibling under the age of eighteen, or dependent parent, grandparent, 

grandchild, or ward living in the refugee’s household) are also accorded the same rights.29 If the 

person loses his refugee status, his family members also lose their status.30 However, any family 

member who loses his derivative status is entitled to petition for protection independently.31

In addition to withdrawing a person’s refugee status, the DRA may also expel any refugee or a 

member of his family if it deems it necessary “on the grounds of national security or 

public order.”32

C. Right of Appeal 

In theory, asylum seekers and refugees have the right to appeal any decisions of the DRA. The 

Act establishes an Appeal Board chaired by an experienced legal professional, including as its 

members persons with knowledge of or experience in matters relating to immigration, refugee 

law, and foreign affairs, and requires that the Board operate independently in the exercise of its 

functions.33 Under the Act, asylum seekers and refugees are entitled to appeal any unfavorable 

decision of the DRA to the Board.34 However, Kenya has yet to constitute this body.35 As a 

result, the DRA and the UNHCR are said to “refrain from issuing rejections [to asylum claims] 

until an appeal process is established which could hear appeals against such negative 

outcomes.”36 This is said to cause delays in the RSD process in violation of the Act, which 

requires the DRA to make a determination within ninety days of an application.37 

D. Nonrefoulement and Voluntary Return 

The Refugees Act prohibits refoulement, stating that “[n]o person shall be refused entry into 

Kenya, expelled, extradited from Kenya or returned to any other country or to subjected [sic] any 

similar measure” if doing so would result in the persecution of the person or endanger his life, 

physical integrity, or liberty.38 

A program aimed at voluntarily repatriating Somali refugees has not had much success. In 2013, 

Kenya, Somalia, and the UNHCR signed an agreement to repatriate Somali refugees in the 

 

29 Id. § 15. 

30 Refugees Act §§ 2 & 20; Refugees Regulations § 41. 

31 Refugees Act § 20; Refugees Regulations § 41. 

32 Refugees Act § 21; Refugees Regulations § 47. 

33 Refugees Act § 9. 

34 Refugees Act § 10; Refugees Regulations §§ 4, 28 & 46. 

35 GARLICK ET AL., supra note 14, Annex I, ¶2. 

36 Id. ¶ 28. 

37 Refugees Act § 11; GARLICK ET AL., supra note 14, ¶ 113. 

38 Refugees Act § 18. 
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country. One of the provisions of the agreement requires that the repatriation be voluntary, 

stating that “[t]he parties hereby reaffirm that the repatriation provided for in this Agreement of 

Somali refugees who have sought refuge in the Republic of Kenya shall take place in conformity 

with international law pertaining to voluntary repatriation.”39 However, a 2014 survey found 

that only 2.9% of Somali refugees in the Dadaab complex had expressed interest in returning to 

Somalia within two years.40 

Recent developments indicate that the Kenyan government has sought (more than once) to 

forcibly repatriate Somali refugees and asylum seekers to Somalia in possible violation of the 

Act and its agreement with Somalia and the UNHCR (for more on this issue, see Part IV, below). 

III. The Refugee Status Determination 

The first step in the RSD process is registration. The Act and its subsidiary legislation require 

that anyone who wishes to remain in Kenya as a refugee must appear before the DRA and 

petition for recognition as such.41 The legality of the manner in which the person entered Kenya 

is immaterial to the eligibility to petition for refugee status.42 At this time, when the UNHCR is 

in the process of transferring its RSD function to the Kenya government, there are two parallel 

registration systems in place, one operated by the DRA and another run by the UNHCR.43 Once 

registered, the applicant is given an “asylum seeker pass” (issued by the DRA), an “asylum 

seeker certificate” (issued by the UNHCR), and an interview appointment.44

Initial screening is done through a registration interview. The applicant is required to appear in 

person with his family members, if any.45 At the time of the registration interview, the applicant 

is asked to provide basic information (including biographical information) and submit all 

relevant supporting documents.46 The applicant and his family members, if any, are also 

required to submit to fingerprinting (which is checked against a national database) and 

photographing.47 The interview is used to screen applicants for the purpose of identifying 

vulnerable persons eligible for accelerated processing (see Part III(2), below) and to determine 

whether they meet general eligibility requirements for refugee protection.48

 

39 Tripartite Agreement Between the Government of the Republic of Kenya, the Government of the Federal 

Republic of Somalia and the United Nations High Commissioner for Refugees Governing the Voluntary 

Repatriation of Somali Refugees in Kenya, 2013 (Nov. 10, 2013), available on the European Council on Refugees 

and Exiles (ECRE) website, at http://www.ecre.org/index.php?option=com_downloads&id=817, archived at 

https://perma.cc/5EVJ-P29P. 

40 UNHCR & IOM, supra note 5, at 9. 

41 Refugees Act § 11; Refugees Regulations § 4. 

42 Refugees Act § 11. 

43 GARLICK ET AL., supra note 14, ¶ 69. 

44 Id. ¶ 72; Refugees Regulations § 4. 

45 Refugees Regulations § 6. 

46 Id. § 8. 

47 Id. § 9. 

48 Id. §§ 5 & 7; REFUGEE CONSORTIUM OF KENYA, supra note 13, at 27. 
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The registration process is followed by the RSD process, which can be categorized into two 

classes: determinations involving prima facie refugees and regular process. 

A. Prima Facie Refugees 

The prima facie refugee process is relatively short. A person who is a member of a group 

entitled to this refugee status is accorded such status once he has been registered and his origin 

verified (no information was located with regard to how the verification process is handled) 

without the need to go through “a claim interview or further evidentiary or other requirements.”49 

If there is any indication that an applicant is possibly excludable under the applicable laws or 

may not qualify for refugee status for other reasons, the person is referred to the regular 

RSD process.50 

As noted above, Kenya has accorded this status to claimants from South Sudan and South and 

Central Somalia. 

B. Regular RSD Process 

Following the completion of the registration process, an applicant is interviewed by an RSD 

officer on the date set at the time of registration. The waiting period for interviews appears to 

vary from six months to two years.51 The law requires the DRA to set up “a fair and transparent 

systems for the scheduling of refugee status determination interviews.”52 Kenya gives priority 

for “accelerated processing” to certain classes of applicants, including unaccompanied minors 

and survivors of gender-based violence, persons with medical issues, and persons awaiting 

deportation orders.53

The burden of proving eligibility for refugee status lies with the applicant. The Refugees 

Regulations provide that the applicant has the duty to establish that he meets all the requirements 

for refugee status.54 An applicant may present documentary evidence and/or witnesses in 

support of his claim.55 Whenever documentary evidence is not available, “the credible testimony 

of an asylum seeker in consideration of conditions in the country of origin may suffice to 

establish eligibility for refugee status.”56 During the RSD interview, the applicant may “present 

his refugee claims in person . . . or be represented at his own cost by a legal representative.”57 

 

49 GARLICK ET AL., supra note 14, ¶ 80. 

50 Id. 

51 Id. ¶ 83. 

52 Refugees Regulations § 18. 

53 GARLICK ET AL., supra note 14, ¶ 101; Refugees Regulations § 30. 

54 Refugees Regulations § 22. 

55 Id. §§ 25 & 26. 

56 Id. § 22. 

57 Id. § 20. 
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The interview phase is followed by an assessment, decision-making, and review process. 

Following the interview, UNHCR and DRA caseworkers “evaluate evidence gathered in the 

interview, undertake any further research, conduct legal analysis and take other necessary steps 

to make an assessment of the applicant’s claim.”58 They then formulate “a recommendation for a 

decision to grant or deny the claim.”59 This is evaluated by a reviewer who verifies the work 

done by the interviewer and makes recommendations, including recalling of the applicant for an 

additional interview.60 Once this process is completed to the satisfaction of the reviewer, the 

matter is then referred to the DRA, where the final decision is made and notification is sent to 

the applicant.61 

IV. Recent Legal Developments 

Recent terrorist attacks seem to have prompted Kenya to make drastic changes to its policy on 

asylum seekers and refugees. One of the key changes came in the form of an announcement of 

an encampment policy. Until recently, Kenya allowed refugees and asylum seekers to live in 

urban areas, a policy that received official endorsement when, in 2011, the government began 

registering refugees in urban centers (Nairobi, Malindi, Mombasa, and Nakuru) and issuing them 

refugee certificates.62 For instance, by 2012, there were an estimated 100,000 refugees living in 

Nairobi, over three times the officially registered refugees in the city in 2006.63 Following a 

series of terrorist attacks in urban locations, the DRA announced an encampment policy at the 

end of 2012, requiring all refugees and asylum seekers in cities to relocate to refugee camps with 

the plan to repatriate them to their home countries.64 This triggered a legal challenge before the 

Kenya High Court at Nairobi. In a ruling issued in July 2013, the Court held that the government 

announcement was, among other things, a violation of the constitutional right of movement and 

the principle of nonrefoulement enshrined in the Refugees Act.65

In March 2014, the government again issued a directive ordering urban refugees to go to and 

remain in designated camps. Citing security and logistical challenges resulting from the 

presence of refugees and asylum seekers in urban areas, the directive provided that 

 all refugees residing outside of the designated refugee camps must return to the 

camps immediately; 

 

58 GARLICK ET AL., supra note 14, ¶ 86. 

59 Id. 

60 Id.¶¶ 87, 89 & 90. 

61 Id. ¶¶ 110–111; Refugee Regulations § 30. 

62 REFUGEE CONSORTIUM OF KENYA, supra note 13, at 77. 

63 Id.; Pavanello et al., supra note 11, at 11. 

64 GARLICK ET AL., supra note 14, ¶¶ 270–271; Kituo Cha Sheria & 8 Others v. Attorney General [2013] paras. 1–6 

eKLR, http://kenyalaw.org/caselaw/cases/view/84157, archived at https://perma.cc/E2YL-22TJ. 

65 Kituo Cha Sheria & 8 Others v. Attorney General, para. 94. 
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 all Kenyans must report refugees and illegal immigrants they encounter outside of camps; 

and 

 an additional five hundred law enforcement officers were going to be deployed mainly to 

Nairobi and Mombasa “to enhance security and surveillance.”66

By May 2014, around 350 individuals, at least six of whom were registered refugees, were said 

to have been deported back to Somalia.67 This time, the government measure survived judicial 

scrutiny; a petition before the High Court of Kenya at Nairobi challenging the legality of the 

directive was rejected.68 

In December 2014, Kenya took the matter further and made key amendments to the Refugees 

Act of 2006. A key provision in the 2014 amendment sought to make permanent the 

encampment policy, stating that “[e]very person who has applied for recognition of his status as 

a refugee and every member of his family shall remain in the designated refugee camp until the 

processing of their status is concluded.”69 Another provision states that “[e]very refugee and 

asylum seeker shall . . . not leave the designated refugee camp without the permission of the 

Refugee Camp Officer.”70

However, the most notable provision in the 2014 amendment was one that sought to dramatically 

reduce the number of refugees and asylum seekers in the country, potentially through forced 

repatriation. It states as follows: 

The number of refugees and asylum seekers permitted to stay in Kenya shall not exceed 

one hundred and fifty thousand persons. (2) The National Assembly may vary the 

number of refugees or asylum seekers permitted to be in Kenya. (3) Where the National 

Assembly varies the number of refugees or asylum seekers in Kenya, such a variation 

shall be applicable for a period not exceeding six months only. (4) The National 

Assembly may review the period of variation for a further six months.71

The strict implementation of this law today would result in the refoulment of 400,000 refugees 

and asylum seekers, most of whom are Somali citizens. Following the enactment of this 

amendment, multiple petitions challenging the legality of the legislation were filed. On February 

 

66 Press Statement, Cabinet Secretary for Interior and Coordination of National Government, Refugees and National 

Security Issues (Mar. 26, 2014), https://www.hrw.org/sites/default/files/related_material/PRESS%20 

STATEMENT%20BY%20CABINET%20SECRETARY%20FOR%20INTERIOR%20%20COORDINATION%20

OF%20NATI%20%20%20.pdf, archived at https://perma.cc/DR2N-MGT6. 

67 GARLICK ET AL., supra note 14,¶ 280. 

68 Samow Mumin Mohamed & 9 Others v. Cabinet Secretary, Ministry of Interior Security and Co-Ordination & 2 

Others [2014] paras. 30 & 31 eKLR, http://kenyalaw.org/caselaw/cases/view/99326/, archived at

https://perma.cc/357R-6A87. 

69 Security Laws (Amendment) Act No. 19 of 2014, § 46 (Dec. 2014), available at http://kenyalaw.org/kl/file 

admin/pdfdownloads/AmendmentActs/2014/SecurityLaws_Amendment_Act_2014.pdf, archived at 

https://perma.cc/XU3W-EGW3. 

70 Id. § 47. 

71 Id. § 48. 
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25, 2015, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi 

found that this particular provision was “unconstitutional, and therefore null and void.”72 The 

Court noted that placing a cap on the number of refugees and asylum seekers that may be present 

in Kenya would invariably result in the expulsion of hundreds of thousands of refugees and 

“violate the principle of non refoulement, which is a part of the law of Kenya and is underpinned 

by the Constitution.”73 

Following the April 2, 2015, deadly attacks at Garissa University by the Somalia-based terrorist 

group Al-Shabaab, which claimed close to 150 lives, Kenya announced that it would close the 

Dadaab refugee complex immediately and repatriate its residents, all of whom are Somali, back 

to Somalia.74 Kenya reportedly retracted its plans following pressure from the international 

community, including the United States of America.75 

V. Integration 

A sustainable integration of refugees into a host country is said to have three interconnected 

aspects: legal (the according of rights to refugees, including the right of employment, property 

ownership, movement, permanent residency, and citizenship); economic (refugees becoming 

self-sufficient); and social (the ability of refugees to live among the citizens of the 

host country).76

In theory, refugees in Kenya are free to engage in any form of self-employment without the need 

to obtain formal authorization and they may take paid employment after obtaining a work 

permit.77 The Act provides that “every refugee and member of his family in Kenya shall, in 

respect of wage-earning employment, be subject to the same restrictions as are imposed on 

persons who are not citizens of Kenya.”78 Refugees and their spouses may apply for and obtain a 

class M work permit.79 A holder of a class M work permit “may engage in any occupation, 

 

72 Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya &10 Others, [2015] para. 427 

eKLR, http://kenyalaw.org/caselaw/cases/view/106083/, archived at https://perma.cc/F43C-DKV7. 

73 Id. 

74 Mark Hanrahan, Kenya Tells UN to Close Dadaab Refugee Camp After Garissa University Attack, 

INTERNATIONAL BUSINESS TIMES (Apr. 12, 2015), http://www.ibtimes.com/kenya-tells-un-close-dadaab-refugeecamp-after-garissa-university-attack-1878568, archived at https://perma.cc/Z9GY-GZXP. 

75 Kathleen Cauderwood, Kenya Retracts Plans to Close Dadaab, World’s Largest Refugee Camp, After 

International Pressure, INTERNATIONAL BUSINESS TIMES (May 7, 2015), http://www.ibtimes.com/kenya-retractsplans-close-dadaab-worlds-largest-refugee-camp-after-international-1912768, archived at https://perma.cc/GQ5HGDFU. 

76 REFUGEE CONSORTIUM OF KENYA, supra note 13, at 79. 

77 GARLICK ET AL., supra note 14, Annex I, ¶ 10. 

78 Refugees Act § 16. 

79 Kenya Citizenship and Immigration Regulations, 2012, Seventh Sched., 11 LAWS OF KENYA, Cap. 172 (rev. ed. 

2014), http://www.kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%20172, archived at 

https://perma.cc/ZW7B-UURU. 
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trade, business or profession.”80 Although obtaining a two-year work permit previously cost 

refugees US$700, this is no longer the case as Kenya has removed this fee and made permits 

available free of charge.81 

While refugees may theoretically work, the practice is reportedly much different. The Refugee 

Consortium of Kenya stated in 2012 that the government does not issue work permits to asylum 

seekers or refugees except in “a few isolated cases.”82 As a result, refugees and asylum seekers 

are forced to seek employment in the informal sector.83 However, this is increasingly being 

made difficult by the country’s encampment policy, which restricts the ability of refugees and 

asylum seekers to move about the country freely. 

A path to naturalization is apparently not available to refugees. The 2010 Kenyan Constitution 

provides that “[a] person who has been lawfully resident in Kenya for a continuous period of at 

least seven years” and who meets other conditions prescribed in the relevant legislation may be 

naturalized.84 Kenyan law on citizenship provides additional conditions, including the ability to 

speak Kiswahili or a local language and the capacity to make a substantive contribution to 

Kenya’s development.85 However, in practice, Kenya does not appear to grant citizenship 

to refugees.86 

VI. Role of Local Governments 

While the 2010 Kenya Constitution ended the unitary system of government and decentralized 

power by establishing county governments with executive and legislative powers, it put the 

authority to deal with matters relating to refugee management exclusively in the hands of the 

national government.87 Although, as noted above, counties host refugees, county governments 

have neither the authority nor the budget to directly participate in any aspect of the refugee 

management process.88 However, there are a number of ways in which county governments 

 

80 Kenya Citizenship and Immigration Act, 2011, § 41, 11 LAWS OF KENYA, Cap. 172 (rev. ed. 2014), 

http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20172, archived at https://perma.cc/X4SSA3D9. 

81 Pavanello et al., supra note 11, at 21; Kenya Citizenship and Immigration Regulations, supra note 79, 

Ninth Sched. 

82 REFUGEE CONSORTIUM OF KENYA, supra note 13, at 80–81. 

83 Id. 

84 CONSTITUTION OF KENYA, 2010, § 5, 6 LAWS OF KENYA (rev. ed. 2014), http://www.kenyalaw.org:8181/exist/ 

kenyalex/actview.xql?actid=Const2010, archived at https://perma.cc/BFM2-BTYQ. 

85 Citizenship and Immigration Act § 13. 

86 GARLICK ET AL., supra note 14, Annex I, ¶ 220. 

87 CONSTITUTION OF KENYA § 186; SAMUEL HALL, REGIONAL DURABLE SOLUTIONS SECRETARIAT (REDSS),

DEVOLUTION IN KENYA: OPPORTUNITY FOR TRANSITIONAL SOLUTIONS FOR REFUGEES 10 & 62 (July 22, 2015), 

https://www.drc.dk/media/1419712/final_devolution_report_230715.pdf, archived at https://perma.cc/HM3FLTKK. 

88 Id. at 62. 
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have indirect involvement in refugee management; chief among them is the question of 

allocation of community land for use as a refugee camp.89 

VII. Government Assistance 

No information was located regarding any government assistance programs available for, or that 

cater to, asylum seekers and refugees. 

VIII. Monitoring and Movement of Refugees 

As noted above, refugees and asylum seekers are required to remain in designated refugee 

camps. The Act requires that all asylum seekers and refugees be issued identity cards or 

passes.90 An asylum seeker is issued an asylum-seeker pass after applying for refugee status.91 

The asylum-seeker pass must “specify the time and date” on which the asylum seeker must 

present himself in the designated refugee camp and includes information that failure to do so 

“may result in the withdrawal of the pass.”92 After the person is granted refugee status, he is 

issued a refugee identification card.93 Any refugee wishing to travel outside of the camp where 

he resides must first obtain a movement pass.94

 

89 Id. at 58. 

90 Refugees Act § 14 

91 Refugees Regulations § 4. 

92 Id. § 13. 

93 Id. § 33. 

94 Refugees Act § 17; Refugees Regulations § 35. 
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Lebanon 

Issam M. Saliba 

Senior Foreign Law Specialist 

SUMMARY Lebanon is not a party to the Convention relating to the Status of Refugees of 1951 or its 

1967 Protocol. It has not adopted any domestic legislation specifically addressing the 

status of refugees. Refugee status is at present determined mainly by the provisions of a 

Memorandum of Understanding (MOU) signed between Lebanon and the UNHCR.

I. General Background 

Lebanon has a large number of refugees. In a report issued by the Humanitarian Aid and Civil 

Protection department of the European Commission in October 2015, it was estimated that there 

were about 1.1 million Syrians, 295,000 Palestinians, and 17,000 Iraqis in Lebanon,1

 while the 

UN High Commissioner for Refugees (UNHCR) estimated the number of Syrian refugees alone 

to be 1,835,840 in 2015.2 

The legal status of refugees in Lebanon lacks certainty. The existing legal instruments dealing 

with this issue have been criticized as inadequate and insufficient. A 2010 report by the UNHCR 

states that “[r]efugees enjoy few, if any, legal rights in Lebanon.”3

II. Constitutional Provisions 

Section B of the preamble of the Lebanese Constitution provides the following: 

Lebanon is ... a founding and active member of the United Nations Organization and 

abides by its covenants and by the Universal Declaration of Human Rights. The 

Government shall embody these principles in all fields and areas without exception.4

 

                                                            

1

 EUROPEAN COMMISSION, LEBANON: SYRIAN CRISIS (Oct. 2015) 

http://ec.europa.eu/echo/files/aid/countries/factsheets/lebanon_syrian_crisis_en.pdf, archived at 

http://perma.cc/MQ64-M8HF. 

2 2015 UNHCR Country Operations Profile – Lebanon, UNHCR, http://www.unhcr.org/cgibin/texis/vtx/page?page=49e486676&submit=GO (last visited Feb. 1, 2016), archived at https://perma.cc/2LRTLDRM. 

3

 UNHCR, SUBMISSION BY THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES FOR THE OFFICE OF THE HIGH 

COMMISSIONER FOR HUMAN RIGHTS’ COMPILATION REPORT – UNIVERSAL PERIODIC REVIEW: THE REPUBLIC OF 

LEBANON 2 (Apr. 2010), 

http://lib.ohchr.org/HRBodies/UPR/Documents/Session9/LB/UNHCR_HighCommissionerforRefugees.pdf, 

archived at https://perma.cc/ZK3U-8KGS. 

4

 Lebanese Constitution (1926), as amended to 1995, 

http://www.presidency.gov.lb/English/LebaneseSystem/Documents/Lebanese%20Constitution.pdf, archived at 

http://perma.cc/Z7H7-JC2R. 
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It could be argued that this provision requires, among other things, that the government enact 

comprehensive legislation related to refugees. However, no such legislation exists. Furthermore, 

Lebanon has not signed the Convention relating to the Status of Refugees of 1951 or its 

1967 Protocol. 

III. Domestic Legislation 

The domestic legislation that governs refugees in Lebanon is essentially the Law Regulating the 

Entry and Stay of Foreigners in Lebanon and their Exit from the Country, which was enacted in 

1962 (1962 Law)..5 The relevant provisions of this law are articles 26, 31, and 32. 

Article 26 stipulates that: 

Any foreigners who is subject of pursuit or has been convicted for a political crime by a 

non-Lebanese authority or whose life or freedom is threatened because of political 

considerations may ask for political asylum. 

Article 31 stipulates that: 

If a decision to expel a political refugee has been made it is not permissible to deport 

such refugee to the territory of a state where his life or freedom are not secured. 

Pursuant to article 32 foreigners who enter Lebanon illegally can be imprisoned for one 

month to 3 years and/or fined. 

IV. Memorandum of Understanding between Lebanon and the UNHCR 

As a result of the “absence of a national refugee law,” a Memorandum of Understanding (MOU) 

was signed between the UNHCR and the Government of Lebanon in September 2003. The 

MOU apparently provides a mechanism for the “issuing of temporary residence permits to 

asylum seekers.”6 Under the terms of the MOU, the UNHCR adjudicates claims for asylum and 

the government issues a temporary residence permit, normally for three months but possibly 

extended to six to nine months, allowing UNHCR to find a durable solution for the refugee 

in question.7

 

                                                            

5

 Law of 1962 Regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country, Bulletin de 

Législation Libanaise (Journal Officiel), No. 28-1962, available on the website of the Lebanese Ministry of Justice, 

at http://ahdath.justice.gov.lb/law-nearby-Foreigners.htm (in Arabic), archived at http://perma.cc/N6PB-7E8K; a 

partial English translation of the Law is available on the UNODC website, at 

https://www.unodc.org/res/cld/document/lbn/1962/order_no__319_regulating_the_status_of_foreign_nationals_in_l

ebanon_en_html/Order_no_319_EN_excerpts.pdf, archived at https://perma.cc/7VZX-V33W. 

6 UNHCR REGIONAL OFFICE IN LEBANON, COUNTRY OPERATIONS PLAN 1 (2004), 

http://www.unhcr.org/3fd9c6a14.pdf , archived at http://perma.cc/H975-EC7S. 

7 Id. at 2. 
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V. Entry of Syrians 

Instructions applicable to the entry of Syrians into Lebanon have been published by the General 

Directorate of General Security. These assign different lengths of stay and require different 

supporting documentation depending on the purpose of stay (tourism, attending school, receiving 

medical treatment, etc.).8

These instructions stipulate that “no Syrian shall be permitted to enter as a refugee save in 

exceptional circumstances as shall be later determined in coordination with the Ministry of 

Social Affairs”9. They further state that “Syrians previously registered as refugees will be 

allowed to reenter if they meet the conditions set out in this memorandum,” and that “a notarized 

commitment not to seek employment shall be provided when renewing temporary residency 

permits . . . by Syrian refugees holding UNHCR certificates.”10

A copy of these instructions11 with an explanatory note12 published by the Lebanese embassy in 

Berlin, Germany, state that the instructions came into effect on January 5, 2015. They do not say 

anything about the renewal of residency permits, and add that Syrian refugees “traveling through 

Lebanese seaports are granted 24 hour stay based on a general commitment of responsibility 

provided by the vessel representative to the General Security at the seaport 48 hours before the 

departure of the vessel in which he undertakes to transport them from the borders to the seaport 

and be responsible for them during their presence in Lebanese territory.”13

No information was located regarding whether these instructions were formally adopted and 

issued by a Council of Ministers decree, as required under article 5 of the 1962 Law. 

                                                            

8 “Instructions for the Entry of Syrians,” available on the website of the General Directorate of General Security, at

http://www.general-security.gov.lb/getattachment/fbe25f41-1241-449a-9f8c-c0bbcc27c974/syrianrules.pdf.aspx?chset=a21d39a0-e95a-4e0c-8736-5c7d3c026258 (in Arabic), archived at https://perma.cc/CC7JNGL8. 

9 Id. at IV. 

10 Id.

11 Visas: Actions Taken Regarding the Entry of Syrian Nationals to Lebanon, EMBASSY OF LEBANON, BERLIN, 

http://www.libanesische-botschaft.info/index.php/ar/2013-07-31-19-07-55/2013-07-31-19-08-26 (in Arabic) (last 

visited Feb. 12, 2016), archived at https://perma.cc/N5KP-GVTP. 

12 Entry Visas for Lebanon, EMBASSY OF LEBANON, BERLIN, http://www.libanesischebotschaft.info/index.php/en/consular-services/visa (last visited Feb. 12, 2016), archived at https://perma.cc/K6MDU69K. 

13 Visas: Actions Taken Regarding the Entry of Syrian Nationals to Lebanon, supra note 11. 
The Law Library of Congress 216

Russian Federation 

Peter Roudik 

Director of Legal Research 

and 

Olena Yatsunska 

Foreign Law Consultant 

SUMMARY Russia is a migrant destination country with a steady flow of labor migrants and refugees. 

Depending on an individual migrant’s situation or his or her country of origin, a migrant to 

Russia can be granted a refugee status or may receive temporary asylum. Refuge and 

temporary asylum policies are developed according to the nation’s Constitution, a set of 

laws and federal regulations, and international obligations under the 1951 Convention and 

1967 Protocol Relating to the Status of Refugees. The Federal Migration Service is the 

federal government agency with regional offices across the country that is in charge of 

implementing all migration-related policies, monitoring migration processes, and 

managing migrant assistance and resettlement programs. Petitioning for refuge and 

asylum status in Russia is a complicated process, which must be initiated from abroad or at 

a border crossing. Applicants are subject to multilevel background review procedures. 

Migrants who receive legal status in Russia are entitled to receive the same social and 

medical benefits as Russian nationals. They are resettled within the country according to 

regional quotas defined by the federal government, are limited in selecting places of 

residence, and have their travels inside Russia monitored by the authorities. Simplified 

procedures for granting refugee status are foreseen for migrants from Ukraine who were 

affected by the ongoing Russian-Ukrainian conflict. After residing in Russia for one year, 

refugees are allowed to apply for naturalization.

I. Introduction 

Migration is a significant issue for Russia, which has the second longest land border of any 

country at 12,577 miles, and more than 23,000 miles of coastline.1

 Russia shares borders with 

fourteen countries and, according to recent data from the World Bank, is among the top five 

migrant destination countries.2

 Russia, with 12.3 million immigrants, was the second most 

frequent migrant destination country in the world after the US in 2010.3 Most immigrants moved 

to Russia primarily for economic reasons.4

 

1 The World Factbook: Russia, CENTRAL INTELLIGENCE AGENCY, https://www.cia.gov/library/publications/theworld-factbook/geos/rs.html, archived at perma.cc/8T6M-D5QC. 

2

 WORLD BANK, MIGRATION AND DEVELOPMENT BRIEF 24 (Apr. 13, 2015), https://siteresources.worldbank.org/ 

INTPROSPECTS/Resources/334934-1288990760745/MigrationandDevelopmentBrief24.pdf, archived at 

http://perma.cc/4LDN-D6AL. 

3

 WORLD BANK, MIGRATION AND REMITTANCES FACTBOOK 2011, http://siteresources.worldbank.org/INTLAC/ 

Resources/Factbook2011-Ebook.pdf, archived at http://perma.cc/65XY-MSGD. 

4 Id. 
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The majority of migrants to Russia are coming from the former Soviet republics of 

Transcaucasia and Central Asia; countries of the Middle East and North Africa affected by recent 

conflicts; and Ukraine where, according to the United Nations High Commissioner for Refugees 

(UNHCR), nearly one million people were internally displaced by the ongoing conflict with 

Russia in the southeastern part of the country.5 Since February 2014, some 600,000 Ukrainians 

have sought asylum or other forms of legal stay in neighboring countries, mainly in the 

Russian Federation.6

The Federal Migration Service of the Russian Federation (FMS), a government agency dealing 

with migration, reported that in 2014, 6,980 people from sixty-five countries applied for refugee 

status, and 267,764 people requested temporary asylum in the Russian Federation.7

 Most 

applicants were from Ukraine (5,789 refugee applicants and 265,448 temporary asylum seekers), 

Syria (473 refugee applicants and 1,435 temporary asylum seekers), and Afghanistan (301 and 

396 respectively).8

 

Illegal migration is a substantial problem for Russian migration control services; however, after 

the automated migration control system became fully operational in 2014, and following the 

adoption of laws that increased punishments for overstaying visas and established simplified 

procedures for receiving work permits by labor migrants, the number of foreign nationals who 

are in the country illegally has decreased.9

 Reportedly, more than 1.2 million foreigners were 

deported and banned from reentry for lengthy periods of time for overstaying their visas 

in 2014.10

According to the FMS, the aim of all major legislative and regulatory activities in the field of 

migration is to better regulate migratory processes and minimize the negative consequences of 

unregulated migration.11

 

5

 Nina Sorokopud, Ukraine Internal Displacement Near 1 Million as Fighting Escalates in Donetsk Region, 

UNHRC (Feb. 6, 2015), http://www.unhcr.org/54d4a2889.html, archived at http://perma.cc/5ML8-27WY. 

6 Id. 

7 Statistics on Asylum-Seekers on the Territory of the Russia Federation in 2014 (as of December 31, 2014), 

FEDERAL MIGRATION SERVICE, http://www.fms.gov.ru/document/18111 (in Russian) (last visited Dec. 18, 2015), 

archived at http://perma.cc/6YCY-ZF8U. 

8 Id. 

9

 For more information on recent measures aimed at improving the monitoring of migrants present in Russia, see 

Peter Roudik, Russia: Re-Entry Restrictions for Illegal Migrants, GLOBAL LEGAL MONITOR (Feb. 27, 2015), 

http://www.loc.gov/law/foreign-news/article/russia-re-entry-restrictions-for-illegal-migrants/, archived at

http://perma.cc/337L-B97H. 

10 Vladimir Vashchenko, Interview with FMS Head Konstantin Romadanovsky, ITAR-TASS NEWS AGENCY (Mar. 

18, 2015), available at http://www.fms.gov.ru/press/speeches/item/6843/ (in Russian), archived at

https://perma.cc/2SA5-DDTV. 

11 FEDERAL MIGRATION SERVICE OF THE RUSSIAN FEDERATION, DECLARATION OF TASKS AND GOALS OF THE RF

FMS FOR 2013–2018, http://www.fms.gov.ru/upload/site1/document_file/GON6kk9aD3.pdf (in Russian), archived 

at perma.cc/V3X7-D4M6 (copy and paste link into browser). 
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The Russian Federation declares its adherence to international standards in the definition of 

“refugee” and the grounds on which refugee status can be granted. In 1992, Russia joined the 

1951 Convention and 1967 Protocol relating to the Status of Refugees.12 Based on these key 

legal documents, Russia provides refuge to foreign nationals and stateless persons on its territory 

by granting political asylum, granting temporary asylum, or recognizing refugee status. Article 

63 of the Russian Constitution states that “[t]he Russian Federation shall grant political asylum 

to foreign nationals and stateless persons according to the universally recognized norms of 

international law.”13

II. Legislation on Refugees and Temporary Asylum 

In Russia, issues of migration are regulated by federal legislation. Major principles establishing 

refugee and temporary asylum policies are defined by the national Constitution,14 and by 

legislative acts regulating the registration and entry of foreign nationals and stateless persons into 

the country and granting them refugee status or providing temporary asylum. These include 

federal laws on 

 entry into and exit from the Russian Federation,15 

 migration registration of foreign nationals and stateless persons,16 

 refugees,17

 legal status of foreign citizens,18 and 

 citizenship.19 

 

12 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), http://www.unhcr.org/3b66c2aa10. 

html, archived at http://perma.cc/V86S-GU6S. 

13 CONSTITUTION OF THE RUSSIAN FEDERATION art. 63, http://www.constitution.ru/en/10003000-03.htm, archived at 

http://perma.cc/2VF8-ZNYS. 

14 Id. 

15 Federal Law No. 114 of Aug. 15, 1996, on Entry into and Exit from the Russian Federation, with the Latest 

Amendments of Dec. 14, 2015, http://base.garant.ru/10135803/ (in Russian), archived at http://perma.cc/974ABGU8. 

16 Federal Law No. 109 of July 18, 2006, on Migration Control of Foreign Citizens and Stateless Persons in the 

Russian Federation, with the Latest Amendments of Nov. 28, 2015, http://base.garant.ru/12148419/ (in Russian), 

archived at http://perma.cc/D7RW-56FX. 

17 Federal Law No. 4528-I of Feb. 19, 1993 on Refugees, with the Latest Amendments of Dec. 22, 2014, 

http://base.garant.ru/10105682/ (in Russian), archived at http://perma.cc/9PNA-HC97. 

18 Federal Law No. 115 of July 25, 2002, on the Legal Status of Foreign Citizens in the Russian Federation, with the 

Latest Amendments of Nov. 28, 2015, http://base.garant.ru/184755/ (in Russian), archived at 

http://perma.cc/YW28-5CQ7. 

19 Federal Law No. 62 of May 31, 2002, on Russian Federation Citizenship, with the Latest Amendments of Dec. 31, 

2014, http://base.garant.ru/184539/ (in Russian), archived at http://perma.cc/4FE5-NU7T. 
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Procedural issues are resolved by a set of government resolutions and rules, including a 

resolution on granting temporary asylum in the territory of the Russian Federation,20 a resolution 

on granting temporary asylum to citizens of Ukraine and stateless persons through a simplified 

procedure,21 and provisional simplified rules for granting temporary asylum to citizens of 

Ukraine and stateless persons.22 

All migration-related policies are implemented by the Federal Migration Service, a government 

agency operating through its regional bodies in all eighty-five constituent components of the 

Russian Federation within the Ministry of Internal Affairs of the Russian Federation. 

Constituent components impact immigration policies mainly by cooperating with federal 

authorities in defining annual quotas for receipt of migrants and providing assistance to the 

federal government in running local migrant assistance programs.23 Commentators note that 

existing regulations and directives are not comprehensive or systematic, and are not clear in 

defining the rights of refugees, procedural requirements, and deadlines for the submission of 

documents. The vagueness and complexity of Russian legislation regarding refugees appears to 

be one reason for the existence of corruption in the field of refugee acceptance and processing, 

usually in the form of extorting bribes for processing and releasing refugee documents. 

Reportedly, local FMS officers request payments in an amount approximately equal to US$1,000 

for “fast and trouble-free” document processing.24

The increased role of local authorities in implementing migration policies is foreseen by the 

recently adopted National Concept of Migration Policy, which states that proper legislative 

regulation must be instituted in order to involve the authorities at all levels, from local to federal, 

in mitigating ongoing and forthcoming conflicts.25 Regional attitudes toward participation in 

federal programs aimed at refugee resettlement differ depending primarily on the economic 

situation in the region. Because budget appropriations for the FMS do not take into account 

periodic influxes of refugees, the main impact is borne by the regions, which are often not able to 

 

20 Government of the Russian Federation Resolution No. 274 of Apr. 9, 2001, on the Granting of Temporary 

Asylum in the Territory of the Russian Federation, with the Latest Amendments of July 22, 2014, available at 

http://www.fms.gov.ru/documents/resolutions/item/2842 (in Russian), archived at http://perma.cc/6VM5-CN7L. 

21 Government of the Russian Federation Resolution No. 690 of July 22, 2014, on the Granting of Temporary 

Asylum for Citizens of Ukraine and Stateless Persons in the Territory of the Russian Federation through Simplified 

Procedure, http://government.ru/media/files/41d4f3a5c06af7f5f50e.pdf (in Russian), archived at 

http://perma.cc/5NLT-R5H4. 

22 Provisional Simplified Rules for Granting Temporary Asylum in the Territory of the Russian Federation for 

Citizens of Ukraine and Stateless Persons of Aug. 1, 2014, http://government.ru/media/files/41d4f3a5 

c06af7f5f50e.pdf (in Russian; scroll to page 3), archived at http://perma.cc/CA9X-V4NZ. 

23 Report on Migration Control in 2014, FMS, http://www.fms.gov.ru/document/3546 (last modified Oct. 28, 2015), 

archived at https://perma.cc/74X4-ZHQF. 

24 Yulia Beret, Can Russia Handle the Flood of Ukrainian Immigrants?, INTER PRESS SERVICE NEWS AGENCY (Jan. 

19, 2016), http://www.ipsnews.net/2016/01/can-russia-handle-the-flood-of-ukrainian-immigrants/, archived at

https://perma.cc/6V5F-U2G7. 

25 News Release, President of the Russian Federation, Concept of the State Migration Policy for the Period Until 

2025 (July 13, 2012), http://en.kremlin.ru/events/president/news/15635 (in Russian), archived at 

http://perma.cc/7KR4-B6VP. 
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sustain these expenses. As a rule, in order to accept and support a new population, regions 

establish new taxes on local residents.26 

III. Process for Obtaining Refugee Status and Temporary Asylum 

A. Refugee Status 

The basic method for protecting foreign nationals and stateless persons in the territory of the 

Russian Federation is to recognize them as refugees. According to Russian legislation, a 

refugee is 

a person who is not a citizen of the Russian Federation and who because of a wellfounded fear of becoming a victim of persecution by reason of race, religion, citizenship, 

national or social identity or political convention is to be found outside the country of his 

nationality and is unable or unwilling to avail himself of the protection of this country 

due to such fear, or having lost his or her nationality and staying beyond the country of 

his or her former place of residence as a result of similar developments, cannot return to 

it and does no wish to do so because of such fear.27 

This definition is almost entirely the same definition as that found in the 1951 Convention and 

1967 Protocol relating to the Status of Refugees.28

The Federal Law on Refugees states that a person who has expressed his/her wish to be 

recognized as a refugee and who has attained eighteen years of age can apply for refugee status 

either personally or through an authorized representative via the diplomatic mission or the 

consular office of the Russian Federation in his/her place of residence or outside the state of 

his/her nationality.29 Foreign nationals or stateless persons can also apply for recognition as a 

refugee at a checkpoint on the state border of the Russian Federation.30 If they are forced to 

cross the Russian border illegally, potential refugees must apply for a status during the next 

twenty-four hours after crossing the border at the checkpoint or beyond it. This can be done at 

the federal executive body in charge of security dealing with the border service, at the regional 

agency of the federal executive body for internal affairs, or at the regional agency of the federal 

executive body dealing with the migration service.31

According to Russian Federation legislation, applications for refugee status must be filed by all 

adult applicants and by unaccompanied minors.32 The ensuing procedure for determining 

 

26 Beret, supra note 24. 

27 Federal Law No. 4528-I of Feb. 19, 1993 on Refugees art. 1, http://base.garant.ru/10105682/ (in Russian), 

archived at http://perma.cc/9PNA-HC97. 

28 Convention and Protocol Relating to the Status of Refugees, supra note 12. 

29 Federal Law No. 4528-I of Feb. 19, 1993 on Refugees art. 4.1. 

30 Id. 

31 Id. 

32 Id. art. 4.2. 
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refugee status comprises two stages: the preliminary examination of an application for granting 

refugee status33 and the examination of an application on the merits.34

During the first stage of the application process, the authorities define whether conditions that 

constitute the grounds for recognizing a person as a refugee are present or absent. The waiting 

period for applicants who are outside of Russia is one month from the date the application is 

received by the diplomatic mission or the consular office.35 For those who apply for refugee 

status at a border checkpoint or inside the Russian territory, the process takes up to five business 

days to complete.36 

Following the results of the preliminary examination of an application, persons are either issued 

a certificate stating that their application has been received or a notice of refusal of their 

application. A certificate serves as the document that identifies the person who is seeking 

refugee status.37 After receiving a certificate, applicants must surrender their national (civil) 

passport and/or other identification documents. These documents are stored in the regional 

bodies of the FMS in the area where the applicant was assigned housing.38 

Submission of a refugee status application changes the legal status of a petitioner and entitles 

him or her to certain rights, such as the right to have an interpreter, receive a one-time lump-sum 

grant for every family member accompanying the applicant (the amount varies but must be no 

less than one hundred rubles (approximately US$1.41) per person, receive a place to live in a 

temporary accommodation center and receive food and medical aid there, and receive vocational 

training and job placement assistance.39 Those who have received the certificate are required to 

undergo a mandatory medical examination. Refusal to undergo medical checks can be a ground 

for denial of a petitioner’s application.40 

During the second stage of determining one’s refugee status, a more detailed review of 

information presented in the application is carried out. A decision on granting refugee status 

must be made on the basis of interviewing the applicant and verifying the truthfulness of 

information provided by the given person and his/her family members, reviewing information 

about the applicant in the possession of Russian authorities, and evaluating the circumstances of 

the applicant’s arrival in Russia and the grounds for his/her stay in the country. The law does not 

 

33 Id. art. 4. 

34 Id. art. 7. 

35 Id. art. 4.5.1. 

36 Id. art. 4.5.2; FMS, Administrative Rules No. 352 of August 18, 2013, on Reviewing Applications for Temporary 

Asylum and Refugee Recognition in the Russian Federation Territory, http://www.fms.gov.ru/documents/ 

regulations/item/1318/, archived at https://perma.cc/ZEQ5-J5KD. 

37 Federal Law No. 45-281 of Feb. 19, 1993 on Refugees art. 4.7. 

38 Id. art. 4.8. 

39 Id. art. 6.1. 

40 Id. art. 6.2.3. 
Refugee Law and Policy: Russian Federation 

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limit the number of interviews that may be requested of an applicant in order to clarify the facts 

he/she has provided.

41

Following the results of the examination of an application, a decision is taken to either grant 

refugee status and provide the applicant with a refugee certificate that replaces all of his/her 

former documents, including foreign IDs, and serves as the only identification document 

recognized by Russian authorities, or to deny the refugee status application.42 

A refugee certificate is valid throughout the territory of the Russian Federation and gives the 

refugee the right to stay in the country. Information on minor children of refugees is entered on 

the certificate of one of the parents.43 While refugee status is granted for an unspecified period, 

the Law on Refugees requires persons who have this status to undergo re-registration with the 

FMS every year and a half.44 

Persons recognized as refugees, including accompanying family members, are entitled to the 

following rights: 

 Information about their rights and responsibilities through translation services if required, 

including assistance with document processing 

 A travel allowance and baggage shipment to their assigned place of residence 

 Protection by the Ministry of Internal Affairs at the place of temporary accommodation to 

ensure their safety 

 Food and public utilities in the centers of temporary accommodation 

 Access to housing paid from a special fund for temporary accommodation45 

 Medical assistance in an amount equal to that received by Russian citizens 

 Vocational training and job placement assistance 

 Employment or the opportunity to establish their own business 

 Social protection and social security 

 Participation in public activities46 

 

41 Id. art. 3.3. 

42 Id. art. 7. 

43 Id. 

44 Id. art. 8.2.7. 

45 Id. art. 8.1. 

46 Id. 
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B. Temporary Asylum 

Apart from granting refugee status, the Russian Federation provides individuals with the 

possibility of obtaining temporary asylum, which, according to the Law on Refugees, creates the 

possibility for a foreign national or a stateless person to stay temporarily in Russia.47 Temporary 

asylum can be granted for a foreigner whose application for refugee status was denied but who 

cannot be expelled from the territory of the Russian Federation for humanitarian reasons.48 

However, the Law does not specify what motives or reasons can be regarded as “humanitarian.” 

Granting temporary asylum for humanitarian reasons falls within the discretion of the decisionmaking body. 

To receive temporary asylum in Russia, a foreign national or a stateless person must file an 

application with the regional bodies of the FMS. Upon receiving the application, the applicant is 

issued a certificate indicating that he/she has applied for temporary asylum in the country, which 

gives him/her the official right to stay in the territory of Russia.49 The term of consideration of 

the application is up to three months.50

All applicants are subject to fingerprinting conducted simultaneously with the submission of 

their application,51 and to a compulsory medical examination. They are required to meet certain 

health standards in order to be eligible for asylum.52

The decision on granting an asylum application is made by the regional bodies of the FMS. If a 

positive decision is issued, an applicant receives a certificate of temporary asylum in the Russian 

Federation.53 This certificate is the main identifying document for the bearer in the territory of 

Russia, substituting national documents, which are surrendered to local bodies of the FMS.54

Temporary asylum is granted for one year; however, it can be renewed annually.55

C. Temporary Asylum for Citizens of Ukraine 

The conflict between Russia and Ukraine, which has been ongoing since March 1, 2014,56 has 

resulted in mass migration from the territory of Ukraine. According to the World Bank, Russia 

 

47 Id. art. 1. 

48 Id. art. 12. 

49 Id. 

50 Government of the Russian Federation Resolution No. 274 of Apr. 9, 2001, on the Granting of Temporary 

Asylum in the Territory of the Russian Federation art. 2, available at http://www.fms.gov.ru/documents/ 

resolutions/item/2842 (in Russian), archived at http://perma.cc/6VM5-CN7L. 

51 Id. art. 3. 

52 Id. art. 6. 

53 Id. art. 8. 

54 Id. arts. 9–10. 

55 Id. art. 12. 
Refugee Law and Policy: Russian Federation 

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to Ukraine and Ukraine to Russia are the next largest migration corridors in the world, following 

only the migration corridor from Mexico to the United States.57 According to the FMS, during 

the period from April 1, 2014, to September 4, 2015, 1,056,587 citizens of southeast Ukraine 

arrived and are currently staying in the territory of the Russian Federation.58 

To regulate the flow of migrants from the territory of Ukraine to Russia, the government adopted 

the Regulation on Granting Temporary Asylum for Citizens of Ukraine in the Territory of the 

Russian Federation through Simplified Procedure59 and Provisional Simplified Rules for 

Granting Temporary Asylum in the Territory of the Russian Federation for Citizens of Ukraine 

and Stateless Persons.60

According to the rules, an applicant and members of his or her family may apply for temporary 

asylum at the local office of the FMS or at one of the multifunctional centers of federal and 

municipal services created for the purpose of handling the recent influx of Ukrainian refugees.61 

Applicants and accompanying family members are fingerprinted when submitting their asylum 

applications and undergo health checks within ten days after arrival.62 

The decision on granting temporary asylum is made by the local FMS office where the 

application was submitted within three days after submission.63

According to official statistics, since the beginning of 2014 through September 4, 2015, 6,065 

Ukrainian citizens have applied and received refugee status in Russia; 387,150 people received 

temporary asylum; permissions for temporary residence were issued to 249,324 people; 139,696 

individuals participated in the program for voluntary resettlement of compatriots from abroad to 

the Russian Federation; 119,364 former Ukrainian nationals were naturalized as Russian citizens; 

and residence permits were given to 56,513 migrants.64

 56 Press Release, President of Russia, Vladimir Putin Submitted an Address to the Federation Council (Mar. 1, 

2014), http://en.kremlin.ru/events/president/news/20353, archived at http://perma.cc/6Y3V-MSJS. 

57 WORLD BANK, supra note 2. 

58 Information on the Situation of the Emergency Mass Migration of Ukrainian Citizens and Stateless Persons from 

the Territory of Ukraine, FMS, http://www.en.fms.gov.ru/document/15549 (last visited Dec. 21, 2015), archived at 

http://perma.cc/9ST2-3NYJ. 

59 Government of the Russian Federation Regulation No. 690 of July 22, 2014, on the Granting of Temporary 

Asylum for Citizens of Ukraine in the Territory of the Russian Federation through Simplified Procedure, 

http://government.ru/media/files/41d4f3a5c06af7f5f50e.pdf (in Russian), archived at http://perma.cc/5NLT-R5H4. 

60 Provisional Simplified Rules for Granting Temporary Asylum in the Territory of the Russian Federation for 

Citizens of Ukraine and Stateless Persons, http://government.ru/media/files/41d4f3a5c06af7f5f50e.pdf (in Russian; 

scroll to page 3), archived at http://perma.cc/CA9X-V4NZ. 

61 Id. art. 2. 

62 Id. art. 3. 

63 Id. art. 5. 

64 Information on the Situation of the Emergency Mass Migration of Ukrainian Citizens and Stateless Persons from 

the Territory of Ukraine, supra note 58. 
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Because most of the arriving refugees are unskilled laborers, they are settled in the regions with 

the ability to absorb such a population that have available jobs in construction, manufacturing, or 

natural resources exploration. Scholars emphasize the lack of a proper policy to support and 

utilize refugees effectively and advocate the creation of a national database of specialist skills 

needs, which would allow for the selection and allocation of refugees based on their skills 

and experience.65

IV. Monitoring of Refugees’ Travel and Relocation 

Federal Law No. 159 regulates the entry and exit of foreigners into and out of Russia.66 The Law 

provides that an individual’s passport and a visa issued by the consular office of the Russian 

Federation abroad are required to provide entry to the Russian territory.67 The Law also states 

that foreign nationals and stateless persons who receive refugee status may leave and enter the 

Russian Federation on the basis of a refugee travel document68 because, as long as they enjoy 

refugee or asylum status in Russia, they are not supposed to use their foreign identification 

papers and are required to surrender passports issued by foreign states to local offices of the FMS 

(see discussion in Part II(A), above). 

The refugee travel document identifies the bearer and is issued in the form of a paper document 

for five years.69 This document also contains an electronic chip, which stores personal data, an 

electronic image of the person’s face, and index fingerprints.70

Refugees and people with temporary asylum status are randomly settled throughout Russia 

according to quotas issued to all constituent components of the federation by the government.71

If possible, refugees’ preference of a region in which they wish to settle is taken into account. 

Upon arrival to the assigned place of residence, refugees and asylees are required to register with 

local FMS authorities and report name changes, address changes, and changes in marital status 

within seven days of the change.72 Those who decide to change their place of permanent 

residency must be removed from the registry and re-register in their new place of residence 

within seven days.73 Since June 2015, individuals have not been required to re-register if they 

 

65 Beret, supra note 24. 

66 Federal Law No. 114 of Aug. 15, 1996, on Entry into and Exit from the Russian Federation Russian, 

http://base.garant.ru/10135803/ (in Russian), archived at http://perma.cc/974A-BGU8. 

67 Id. art. 24. 

68 Id. 

69 Federal Law No. 4528-I of Feb. 19, 1993 on Refugees art. 8.1, http://base.garant.ru/10105682/ (in Russian), 

archived at http://perma.cc/9PNA-HC97. 

70 Id. 

71 Id. art. 14. 

72 Government of the Russian Federation Resolution No. 274 of Apr. 9, 2001, on the Granting of Temporary 

Asylum in the Territory of the Russian Federation art. 14, available at http://www.fms.gov.ru/documents/ 

resolutions/item/2842 (in Russian), archived at http://perma.cc/6VM5-CN7L. 

73 Id. 
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travel or stay away from their regular place of residency for a longer period within the same 

regional unit of the Russian Federation.74 

Regional bodies of the FMS collect information about refugees and those who were granted 

temporary asylum, as well as those who lose or have been deprived of their refugee status or 

temporary asylum. They keep records and send it to a government database, the State 

Information System of Migration Control. The system is maintained by the FMS and 

information collected is shared with other government law enforcement agencies, including the 

Ministry of Internal Affairs (federal police), Federal Security Service, Ministry of Mass 

Communications, Ministry of Foreign Affairs, and Federal Tax Service.75 The personal 

biographic information of migrants, including their biometric data; employment and education 

records; criminal records; dates of allowed presence in Russia; reasons and circumstances related 

to their migration to Russia; deportation records; and information on their legal representatives, 

relatives, and children must be recorded in the system.76 

V. Path to Citizenship 

Foreign nationals and stateless persons who have reached eighteen years of age and have legal 

capacity may apply for citizenship of the Russian Federation after meeting a number of 

requirements specified by law, which include a period of residence of no less than five years in 

the territory of the Russian Federation with a permanent residence permit, a legitimate source of 

livelihood, the obligation to follow the Constitution and laws of Russia, renunciation of the 

applicants non-Russian citizenship, and proven knowledge of the Russian language.

77 

The residency requirement is shortened to one year for those granted refugee status.78

 

74 Federal Law No. 197 of June 29, 2015, on Amendments to the Federal Law of the Russian Federation on Freedom 

of Movement and Selection of Place of Abode Within the Russian Federation art. 1(2), http://base.consultant.ru/ 

cons/cgi/online.cgi?req=doc;base=LAW;n=181859;fld=134;dst=100010;rnd=184768.9137759543070291;;ts=01847

68919362153014077 (in Russian), archived at http://perma.cc/WEB6-ZAPR. 

75 Government Regulation No. 94 of February 14, 2007, on State Information System of Migration Control, 

ROSSIISKAIA GAZETA Feb. 21, 2007, No. 37 (in Russian), available at http://base.garant.ru/190665/, archived at

http://perma.cc/7HL5-ZYE3. 

76 Federal Law No. 109, art. 9, http://base.garant.ru/12148419/ (in Russian), archived at http://perma.cc/D7RW56FX. 

77 Federal Law No. 62 of May 31, 2002, on Citizenship of the Russian Federation art. 13, http://base.garant.ru/ 

184539/ (in Russian), archived at http://perma.cc/4FE5-NU7T. 

78 Id. art. 13.2. 
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Spain 

Graciela Rodriguez-Ferrand 

Senior Foreign Law Specialist

SUMMARY Spain’s Law Regulating the Right of Asylum and Subsidiary Protection provides three 

types of international protection: conventional asylum for refugees, subsidiary protection, 

and exceptional protection for humanitarian reasons. Application procedures differ 

depending on whether the request for international protection was filed within Spain or at 

the Spanish border. The Ministry of Interior examines the application and must render a 

decision within a deadline of six months, or three months in some circumstances. The 

Law provides for the rights and obligations of international protection for applicants and 

those granted refugee status to include identity cards and travel documents, legal residence 

and work permits, social services, education, health care assistance, and family 

reunification. Spain also has a program for resettlement of refugees. 

I. Introduction 

The Spanish Constitution1 provides that the terms under which citizens from other countries and 

stateless persons may enjoy the right to asylum in Spain will be determined by law. 2

 In 

furtherance of the constitutional mandate, Law 12/2009 Regulating the Right of Asylum and 

Subsidiary Protection (LRASP) was adopted to provide the legal framework applicable to 

refugees and stateless persons who seek asylum in Spain.3 The Law applies to those who qualify 

as refugees under the definition provided by the 1951 Geneva Convention Relating to the Status 

of Refugees and its 1967 Protocol.4 The regulation of the LRASP is still pending congressional 

approval. Therefore, Royal Decree 203/19955 enacting the regulation implementing the previous 

legislation on refugees is still applicable in so far as it does not contradict the current LRASP.6

While the state has authority over asylum, international protection, and refugee resettlement,7 the 

autonomous communities (Spanish regions) and local authorities are responsible, in their 

 

1

 CONSTITUCIÓN ESPANOLA [CE] art. 13. 

2 Id. art. 13.4. 

3

 Ley 12/2009 Reguladora del Derecho de Asilo y de Protección Subsidiaria (LRASP) art. 1, BOLETÍN OFICIAL DEL 

ESTADO [B.O.E.], Oct. 31, 2009, http://www.boe.es/boe/dias/2009/10/31/pdfs/BOE-A-2009-17242.pdf, archived at

http://perma.cc/H5QY-VTDS. 

4 Id. art. 2. 

5

 Real Decreto 203/1995, B.O.E., Mar. 2, 1995, https://www.boe.es/diario_boe/txt.php?id=BOE-A-1995-5542

archived at https://perma.cc/G98B-UUW2. 

6 España Incumple su Propia Ley de Asilo al no Desarrollar su Reglamento en Seis Años, EL BOLETÍN (Sept. 5, 

2015), http://www.elboletin.com/nacional/122023/espana-incumple-ley-de-ashilo.html, archived at

https://perma.cc/HED3-V6EK. 

7

 CE art. 13.4. 
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respective jurisdictions, for the implementation of social integration policies on employment, 

education, culture, health, welfare, and housing for immigrants, including refugees.8

 

II. International Protection 

The LRASP provides three types of international protection: conventional asylum for refugees, 

subsidiary protection, and exceptional protection for humanitarian reasons. 

Under the LRASP a refugee is an individual from a non-EU country with a well-founded fear of 

being persecuted in his or her country for reasons of race, religion, nationality, political opinion, 

membership of a certain social group, gender, or sexual orientation, who is outside his or her 

country of nationality and, because of such fears, may not or does not want to return to his or her 

country.9

 The status of refugee may also be granted to a stateless individual who is away from 

his or her country of habitual residence for the same fears, and may not or does not want to 

return to that country.10

The LRASP provides that foreigners who do not qualify as refugees may obtain protección 

subsidiaria (subsidiary protection) if there are reasons to believe that if they return to their 

country they would be exposed to a genuine risk of suffering any of the following: (a) a death 

sentence, (b) torture or inhuman or degrading treatment, or (c) serious threats against their life or 

integrity by reason of indiscriminate violence.11

In addition to conventional refugee status and subsidiary protection, the LRASP provides an 

additional international exceptional protection for humanitarian reasons to those that do not meet 

the requirements of the two previous categories.12 Exceptional protection may be granted to 

those who are in a vulnerable situation, such as minors; unaccompanied minors; the disabled or 

elderly; pregnant women; single parents with minors; individuals who have been tortured, raped, 

or subjected to any other serious forms of psychological or physical violence; and victims of 

human trafficking.13 In these cases, the government may grant authorization to remain in the 

country under the general immigration rules. 14 Minors granted international protection are 

provided health care and psychological assistance. 15 Unaccompanied minors are placed in 

special centers and assigned a legal representative who assists them throughout the process of 

applying for international protection.16

 

8

 Real Decreto 557/2011, Disposición Final Primera, B.O.E., Apr. 30, 2011, http://www.boe.es/buscar/pdf/2011/ 

BOE-A-2011-7703-consolidado.pdf, archived at https://perma.cc/FT8Q-XPE2. 

9 Id. art. 3. 

10 Id. 

11 Id. arts. 4, 10. 

12 LRASP art. 46.1, B.O.E., Oct. 31, 2009, http://www.boe.es/boe/dias/2009/10/31/pdfs/BOE-A-2009-17242.pdf, 

archived at http://perma.cc/H5QY-VTDS. 

13 Id. 

14 Id. art. 46.3. 

15 Id. art. 47. 

16 Id. art. 48. 
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III. Non-Qualification for International Protection 

The following individuals are excluded from refugee status: 

 Individuals already protected under United Nations agencies other than the United Nations 

High Commissioner for Refugees (UNHCR) 

 Individuals whose country of residence has given them the rights and obligations inherent to 

the nationals of such country 

 Individuals who have committed or instigated the perpetration of a crime against peace, a 

war crime, a crime against humanity, or a serious crime under Spanish law, or have engaged 

in organized crime 

 Individuals guilty of acts contrary to the principles and purpose of the United Nations and 

its founders17

The right to asylum and subsidiary protection in general will be denied to people who, based on 

well-founded reasons, may be a threat to the security of Spain or those with a final conviction for 

a serious crime who may constitute a threat to the community.18

Individuals who meet the following criteria are excluded from subsidiary protection: 

 Individuals who have committed or instigated the perpetration of a crime against peace, a 

war crime, a crime against humanity, or a serious crime under Spanish law, or have engaged 

in organized crime 

 Individuals guilty of acts contrary to the principles and purpose of the United Nations 

 Individuals who constitute a danger to the internal or external security of Spain19

IV. Enforcement Authorities 

The LRASP provides that the Oficina de Asilo y Refugio (OAR, Office of Asylum and Refuge) 

within the General Sub-Directorate of Asylum of the Ministry of Interior is the authority on 

asylum matters.20 The OAR has the authority in matters of registration of asylum applications, 

interviewing asylum seekers, and preparing cases before the Comisión Interministerial de Asilo y 

Refugio (CIMAR, Inter-ministerial Commission of Asylum and Refugee), an advisory entity 

within the Ministry of Interior.21 The Spanish representative before the UNHCR, who is notified 

 

17 Id. art. 8. 

18 Id. arts. 9.a, 9.b, 12. 

19 Id. art. 11. 

20 Id. art. 23.1. 

21 Id. arts. 23, 24.2. 
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of all applications for international protection in Spain, participates in the deliberations of 

the CIMAR.22 

V. Application Process 

Applications for international protection may be made in person or through a representative in 

the case of legal or physical incapacitation, either inside Spain or at the border.23 The applicant 

may file the international protection claim in the following places: 

 Entry points at Border Control 

 Within Spain at OARs, in any of the foreigners offices of the nineteen autonomous 

communities, or at police stations 

 At diplomatic or consular Spanish missions abroad24

A. Application Procedure in Spain 

A person must claim asylum within one month of entering the country or one month from the 

moment the events that provide grounds for the request took place.25

The application must include all personal information and any documents or evidence supporting 

the case.26 Once the application is filed, the applicant has the right to remain in Spain until the 

application is decided, has access to legal aid and an interpreter in his or her language, will have 

his or her application notified to the UNHCR, will have any return or extradition process halted 

until a final decision is reached, has access to his or her file at any time, and has the right to 

receive health care and social services.27

The applicant will be required to cooperate with the Spanish authorities, submit any information 

in support of his or her claim, submit his or her fingerprints, report his or her domicile in Spain 

and any change thereof, and appear before the competent authorities upon request.28

The OAR may reject any application for international protection if Spain does not have 

jurisdiction to process the petition in accordance with international agreements; when the 

application does not meet the legal requirements for its processing; when the applicant already 

has refugee status in another state; when the applicant comes from a safe third country; when the 

 

22 Id. arts. 34, 35. 

23 Id. art. 17.1; Real Decreto 203/1995 art. 4. 

24 Real Decreto 203/1995 art. 4. 

25 LRASP art. 17.2; Real Decreto 203/1995 art. 7.1. 

26 Id. art. 18.2.b. 

27 Id. arts. 18.1, 19.1, 19.2. 

28 Id. art. 18.2. 
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application is a resubmission of a previous one already denied; and when the applicant is a 

national of another EU country.29

The applicant must be notified of a rejection of his or her application within a maximum of one 

month.30 If there is no response within this time, it is understood that the admission of the 

application petition has been accepted and the applicant may remain in Spain while a final 

decision is reached.31

B. Application Procedure at the Border 

If the application is submitted at the border because the applicant does not meet the necessary 

requirements to enter Spain, the Ministry of Interior has four days to decide on the application.32 

If the application is admitted the applicant may remain in Spain.33 If the application is rejected, 

the decision may be subject to reexamination, which must be filed within two days of the notice 

of nonadmittance and must be decided by the Ministry of Interior within two days of the 

review request.34

C. Application Procedure in Spanish Embassies and Consulates 

According to the LRASP, an asylum seeker may file a petition for international protection at the 

Spanish embassy or consulate in the country where he or she resides if such country is not the 

applicant’s country of nationality, in order to request that Spain provide for his or her transfer 

to Spain.35 

Because the regulation of the LRASP has not been enacted, this provision has not been applied 

due to the lack of rules for its implementation.36

VI. Eligibility Process 

Once an application is admitted for processing either at the border or in Spain, it is subject to 

examination by the Ministry of Interior.37 Once this examination is completed, the Ministry of 

Interior renders a final decision on granting or rejecting the petition within six months upon the 

 

29 Id. art. 20.1. 

30 Id. art. 20.2. 

31 Id.

32 Id. art. 21.1. 

33 Id. art. 22. 

34 Id. art. 21.4. 

35 Id. art. 38. 

36 Espana Incumple su PropiaLey de Asilo al no Desarrollar su Reglamento en Seis Anios, supra note 6. 

37 LRASP art. 24.1, B.O.E., Oct. 31, 2009, http://www.boe.es/boe/dias/2009/10/31/pdfs/BOE-A-2009-17242.pdf, 

archived at http://perma.cc/H5QY-VTDS. 
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recommendation of the CIMAR.38 The deadline of six months may be reduced to three months 

in the following situations: 

 Petitions that appear obviously unfounded 

 Applicants with special needs, such as unaccompanied children 

 Applicants whose claims are based on grounds unrelated to the evaluation of the 

requirements for the granting of refugee or subsidiary protection status 

 Applicants whose country of origin and nationality is considered safe or, if stateless, where 

the applicant’s habitual residence is in a safe country 

 The applicant submits the application one month after the date of entry into Spain or one 

month after the date of the events that justify the fear of persecution or serious harm, for no 

justifiable reason 

 Applicants fall under any of the grounds for exclusion or denial of refugee status39

 Applications filed in an Internment Centre for Foreigners,40 which are processed under the 

urgent procedure once the applicants have been admitted41

The eligibility decision may be subject to judicial review.42 International protection applicants 

are provided with assistance to cover their basic needs, such as social services, education, and 

health care, when they do not have economic resources to provide for themselves.43

During the international protection procedure, the applicant and his or her family are lodged in 

public reception centers or facilities available through nongovernment organizations. 44 The 

applicant is also given work authorization until a final decision on international protection status 

is reached.45 

VII. Rights of Refugees and Beneficiaries of Subsidiary Protection

The protection granted to refugees and beneficiaries of subsidiary protection includes their nonrefoulement and their right to remain in Spain.46 They are also entitled to the following rights: 

 

38 Id. arts. 24.2, 24.3. 

39 Id. art. 25.1. 

40 Real Decreto 162/2014, por el que se Aprueba el Reglamento de Funcionamiento y Régimen Interior de los 

Centros de Internamiento deExtranjeros [Royal Decree 162/2014, Approves the Regulation of the Operation and 

Internal Regime of the Internment Centers for Foreigners] art. 1, B.O.E., Mar. 15, 2014, http://www.boe.es/ 

buscar/act.php?id=BOE-A-2014-2749, archived at https://perma.cc/R79X-A689. 

41 LRASP art. 25.2. 

42 Id. art. 29. 

43 Id. art. 30. 

44 Id. art. 31. 

45 Id. art. 32. 

46 Id. arts. 5, 36.1.a. 
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 To be issued an identity card and travel documents47

 Social service benefits48

 Legal residence and work permits49

 Access to information on the rights and obligations derived from the international 

protection granted50

 Access to social integration programs51

 Access to voluntary return programs52

 Freedom of circulation and movement53

 Right to family reunification54

The government will set up social integration programs for protected people under equal 

opportunity and nondiscrimination standards.55

The nonadmission or rejection of applications for international protection results in the return, 

expulsion, or compulsory departure of the applicant from Spain or his or her transfer to a country 

with jurisdiction to examine the petition, unless the applicant meets the requirements to legally 

remain in Spain on a temporary or resident visa, or if the applicant is authorized to remain in 

Spain on humanitarian grounds.56

VIII. Family Reunification

Those granted international protection as refugees or beneficiaries of subsidiary protection have 

the right to apply for international protection of their family members, including spouses or 

partners in a permanent partnership or union, dependent parents, and minor children. Other 

family members may be reunified upon proof that they were dependent on the applicant in the 

 

47 Id. art. 36.1.d. 

48 Id. art. 36.1.e–g. 

49 Id. art. 36.1.c; Convention Relating to the Status of Refugees arts. 12–34, July 28, 1951, 19 U.S.T. 6259, 

189 U.N.T.S. 137, http://www.unhcr.org/3b66c2aa10.pdf, archived at https://perma.cc/36LL-Z9PR. 

50 LRASP art. 36.1.b. 

51 Id. art. 36.1.i. 

52 Id. art. 36.1.j. 

53 Id. art. 36.1.h. 

54 Id. art. 36.1.k. 

55 Id. art. 36.2. 

56 Id. art. 37. 
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country of origin.57 A resolution granting family reunification also grants resident status and 

work authorization to the beneficiaries under the same terms applicable to the main applicant.58

IX. Resettlement of Refugees 

Resettlement is a process by which a refugee who is temporarily granted asylum in a country is 

resettled in a third country where he or she is given permanent protection.59

The LSARP provided that the government would set up an annual national resettlement program 

(NRP) and establish the annual quota of resettled individuals in Spain. The NRP was adopted in 

coordination with the UNHCR and other related international organizations.60 The Council of 

Ministries set up the first NRP on October of 2011 and the latest was approved on November 

2015, allowing for the resettlement of a specific number of refugees including particularly 

vulnerable families, women, and children.61

Refugees resettled in Spain are governed by the same rules applicable to those granted refugee 

status under the LSARP procedures described above.62 

 

57 Id. art. 40. 

58 Id. art. 41.3. 

59 UNHCR, Manual del Reasentamiento del ACNUr 474 (2011), http://acnur.es/PDF/Manual-%20ReasentamientoACNUR.pdf, archived at https://perma.cc/HBK2-8TTL; ACCEM, http://www.accem.es/es/monograficos/ 

reasentamiento (last visited Jan. 29, 2016), archived at https://perma.cc/P279-9EFJ. 

60 LRASP, First Additional Provision, B.O.E., Oct. 31, 2009, http://www.boe.es/boe/dias/2009/10/31/pdfs/BOE-A2009-17242.pdf, archived at http://perma.cc/H5QY-VTDS. 

61 Referencia del Consejo de Ministros, LA MONCLOA (Nov. 6, 2015), 

http://www.lamoncloa.gob.es/consejodeministros/referencias/Paginas/2015/refc20151106.aspx#refugiados, archived 

at https://perma.cc/F75R-QV2Z; España Acogerá a Treinta Refugiados en 2013 y 2014 dentro del Programa de 

Reasentamiento, España Acogerá Treinta Refugiados en 2013 y 2014 Dentro del Programa de Reasentamiento,

EUROPEAN RESETTLEMENT NETWORK, http://www.resettlement.eu/news/espa%C3%B1a-acoger%C3%A1-treintarefugiados-en-2013-y-2014-dentro-del-programa-de-reasentamiento (last visited Jan. 29, 2016), archived at

https://perma.cc/32NB-KDL6; Spain’s Resettlement Program, EUROPEAN RESETTLEMENT NETWORK, 

http://www.resettlement.eu/country/spain-0#germanys-resettlement-programme (last visited Jan. 29, 2016), archived 

at https://perma.cc/H6SE-7V3A. 

62 LRASP, First Additional Provision, 2d para. 
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Sweden 

Elin Hofverberg 

Foreign Law Research Consultant

SUMMARY Sweden accepts both quota refugees through the United Nations High Commissioner for 

Refugees relocation system and asylum seekers arriving at the border. In 2015 Sweden 

received approximately 160,000 applications for asylum, including more than 35,000 from 

unaccompanied minors. Prior to November 24, 2015, most asylum seekers were granted 

permanent residence permits, but after that date, asylum seekers arriving at the border have 

only been given temporary residence permits. Asylum seekers are given free housing, 

health and dental care, and schooling for children ages pre-kindergarten to twenty. 

Sweden allows for family reunification but family reunification has become more 

restrictive as a response to the refugee crisis. Overall, Sweden has revised its asylum 

policies considerably following the refugee crisis of 2015. 

I. General Background 

Sweden has historically received a large number of asylum seekers, including the largest number 

per capita among the countries of the Organisation for Economic Co-operation and Development 

(OECD) in 2013.1

 During the Iraq war, Södertälje, a small municipality in Sweden, took more 

Iraqi refugees than the United Kingdom and the United States combined.2 Sweden was also the 

first country in Europe to grant asylum seekers from Syria permanent residence permits.3 

II. Number of Asylum Seekers 

Sweden received 160,000 asylum applications in 2015,4 a steep increase from 80,000 in 2014.5 

During 2015 Sweden received the largest number of applicants per capita in the EU (almost 2% 

 

1 Sweden – the OECD’s Highest Per Capita Recipient of Asylum Seekers, THE GUARDIAN (Dec. 2, 2014), 

http://www.theguardian.com/news/datablog/2014/dec/02/sweden-oecds-highest-per-capita-asylum-seekers-syria, 

archived at https://perma.cc/HF99-39HA. 

2

 Ivar Ekman, Far from War, A Town with a Well-Used Welcome Mat, THE NEW YORK TIMES (June 13, 2007), 

http://www.nytimes.com/2007/06/13/world/europe/13sweden.html?_r=0, archived at https://perma.cc/J3TY-CHUE. 

3 Syrians to Get Permanent Residence in Sweden, RADIO SWEDEN (Sept. 3, 2013), https://sverigesradio.se/sida/ 

artikel.aspx?programid=2054&artikel=5634497, archived at https://perma.cc/UAC2-HVG9. 

4 Applications for Asylum Received, 2015, MIGRATIONSVERKET (Jan. 1, 2016), http://www.migrationsverket. 

se/download/18.7c00d8e6143101d166d1aab/1448974429957/Inkomna+ans%C3%B6kningar+om+asyl+2015+-

+Applications+for+asylum+received+2015.pdf, archived at https://perma.cc/G646-RNGE; see also Nästan 163 000 

människor sökte asyl i Sverige 2015, MIGRATIONSVERKET (Jan. 1, 2016), http://www.migrationsverket.se/OmMigrationsverket/Nyhetsarkiv/Nyhetsarkiv-2016/2016-01-01-Nastan-163-000-manniskor-sokte-asyl-i-Sverige2015.html, archived at https://perma.cc/3DMB-F6TK. 

5 Fler fick skydd under 2014, MIGRATIONSVERKET (Jan. 1, 2015), http://www.migrationsverket.se/OmMigrationsverket/Nyhetsarkiv/Nyhetsarkiv-2015/2015-01-02-Fler-fick-skydd-under-2014.html, archived at 

https://perma.cc/ALF8-2WLQ. 
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of the total population).6

 The five largest countries of origin among asylum seekers were Syria, 

Afghanistan, Iraq, Eritrea, and Somalia.7

 Of these 160,000 applications, more than 35,000 were 

from unaccompanied children.8 Among the unaccompanied minors 90% were boys between the 

ages of thirteen to eighteen.9

 Approximately 66% of all unaccompanied children in 2015 were 

Afghans.10 Although there was an increase from 2014 to 2015 in asylum seekers from all 

countries, the steepest increase in asylum seekers was among those from Afghanistan, from 

3,104 in 2014 to 41,564 in 2015, a 1,298% increase, compared with an increase of 30,583 to 

51,338, a 68% increase, in applications from Syrians.11 

III. Recognition of the Right of Asylum 

Sweden’s Aliens Act regulates asylum.12 Prior to November 24, 2015, there were three types of 

asylum statuses in Sweden: refugee, persons deemed in need of subsidiary protection, and 

persons in need of other protection.13 On that date, the Swedish government announced that 

Sweden would align its asylum policy with that of the rest of the EU by limiting the number of 

grounds for asylum to include only refugees and persons in need of subsidiary protection, thus 

eliminating the third status type.14 

 

A. Refugees 

Sweden is a signatory to the Geneva Convention Relating to the Status of Refugees and its 

Protocol.15 Refugees are defined in Swedish law as persons who are refugees according to this 

Protocol,16 that is, a person who, 

 

6 Sweden Expects 190,000 Asylum Seekers in 2015, EURACTIV (Oct. 22, 2015), http://www.euractiv.com/ 

sections/justice-home-affairs/sweden-expects-190000-asylum-seekers-2015-318762, archived at 

https://perma.cc/8G8U-CSXP. 

7 Asylsökande 2015 och 2014, MIGRATIONSVERKET (page updated Jan. 4, 2016), 

http://www.migrationsverket.se/Om-Migrationsverket/Statistik/Asylsokande---de-storsta-landerna.html, archived at

https://perma.cc/NPP8-6T3E. 

8 Applications for Asylum Received, 2015, MIGRATIONSVERKET, supra note 4. 

9 Id. 

10 Id. 

11 Asylsökande 2015 och 2014, MIGRATIONSVERKET, supra note 7. 

12 UTLÄNNINGSLAG [ALIENS ACT] (SVENSK FÖRFATTNINGSSAMLING (SFS) 2005:716), http://www.notisum.se/ 

rnp/sls/lag/20050716.HTM, archived at https://perma.cc/9UPC-U699/. 

13 Id. 4 ch. 1, 2, 2a §§. 

14 Press Release, Regeringskansliet, Regeringen föreslår åtgärder för att skapa andrum för svenskt 

flyktingmottagande (Nov. 24, 2015), http://www.regeringen.se/artiklar/2015/11/regeringen-foreslar-atgarder-for-attskapa-andrum-for-svenskt-flyktingmottagande/, archived at http://perma.cc/42YN-92FP. 

15 States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, UNHCR, 

http://www.unhcr.org/3b73b0d63.html (last visited Jan. 11, 2016), archived at https://perma.cc/BVW4-T35Y. 

16 4 ch. 3 § ALIENS ACT. 
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owing to well-founded fear of being persecuted for reasons of race, religion, nationality, 

sex, sexual orientation or membership of a particular social group or political opinion, is 

outside the country of his nationality and is unable to, 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 or, owing to such fear, is unwilling to return to it.17

B. Persons Deemed in Need of Subsidiary Protection 

A persons in need of subsidiary protection is defined as one who is 

a foreigner who does not qualify under the Ch. 4 § 1 Aliens Act definition as a refugee, 

and who is outside of his or her country of citizenship because there is a well-founded 

reason to believe that the foreigner would be at risk of being punished by death or be 

subject to corporal punishment, other inhumane or degrading treatment or punishment, or 

[being] a civilian, be in serious risk of injury due to an armed conflict, and the foreigner 

cannot, or because of the risk mentioned above, does not want to avail himself to the 

home country’s protection.18 

The same test applies to a stateless person who is outside a country where he or she has 

previously had his or her residence.19

C. Persons in Need of Other Protection 

A person in need of other protection is defined as 

a foreigner who [is not recognized as a refugee under the definition and] is outside the 

country where he is a citizen, because he or she is in need of protection due to external or 

internal military conflict, or because of other tensions in the country, [who] feels a wellfounded fear of being subjected to encroachment, or [who] cannot return to his or her 

homeland because of an environmental disaster.20

In addition to these three grounds for asylum, the Swedish Migration Office may, in 

“exceptionally distressing circumstances, [and] in exceptional cases,” grant residence permits to 

individuals who otherwise do not qualify as refugees.21 This typically applies to cases where 

there are young children who are ill and cannot receive care in their home countries. 

 

17 Id. 4 ch. 1 §. 

18 Id. 4 ch. 2 § (all translations by author). 

19 Id. 

20 Id. 4 ch. 2a §. 

21 Asylum Regulations, MIGRATIONSVERKET (June 16, 2015), http://www.migrationsverket.se/English/Privateindividuals/Protection-and-asylum-in-Sweden/Asylum-regulations.html, archived at https://perma.cc/R6JP-ZKJB. 
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D. Dublin Regulation 

Sweden is a member of the European Union (EU), and therefore adheres to the EU’s Dublin 

Regulation, which stipulates that refugees within Europe should apply for asylum in the first EU 

country they reach and that other countries can send asylum seekers back to that country.22

E. Refusal of Asylum 

An application for asylum can be dismissed if a person has been deemed a refugee or in need of 

subsidiary protection in an EU member state or a third country (provided the person will be 

protected against persecution or has other needed protection there), or if the person can be sent to 

a country where he or she can apply for asylum and will be safe from persecution, the death 

penalty, forced labor, torture, or other inhuman or degrading treatment.23 

IV. Application Process 

A. Quota Refugees 

Sweden receives quota refugees through the United Nations High Commissioner for Refugees 

(UNHCR) program.24 Annually, Sweden accepts approximately 1,900 quota refugees.25 The 

government and the opposition have agreed to gradually increase this number to 5,000.26 

Quota refugees are screened by the UNHCR and by Migration Authority personnel, either 

through in-person interviews before the person arrives in Sweden, or by a review of the 

documents presented to the Migration Authority by the UNHCR.27 

B. Refugees Arriving at the Border 

A large number of asylum seekers in Sweden seek asylum after arriving in Sweden without a 

valid visa.28 Typically these asylum seekers have travelled through Europe to reach Sweden. A 

 

22 Council Regulation 604/2013, 2013 O.J. (L 180) 31, http://eur-lex.europa.eu/LexUriServ/LexUriServ. 

do?uri=OJ:L:2013:180:0031:0059:EN:PDF, archived at https://perma.cc/DK8X-Z27Q. 

23 5 ch. 1§ ALIENS ACT. 

24 The Swedish Refugee Quota, MIGRATIONSVERKET ( May 12, 2015), http://www.migrationsverket.se/English/ 

Private-individuals/Protection-and-asylum-in-Sweden/The-refugee-quota.html, archived at https://perma.cc/WJ2R3SR4.

25 Frågor och svar om kvotflyktingar, MIGRATIONSVERKET (Apr. 29, 2014), http://www.migrationsverket. 

se/Privatpersoner/Skydd-och-asyl-i-Sverige/Flyktingkvoten/Fragor-och-svar-om-kvotflyktingar.html, archived at 

https://perma.cc/6FK3-AXCB. 

26 Lagliga vägar, REGERINGSKANSLIET (Dec. 11, 2015), http://www.regeringen.se/regeringens-politik/regeringensarbete-med-flyktingsituationen/overenskommelsen-insatser-med-anledning-av-flyktingkrisen/tillfalligtuppehallstillstand-som-huvudregel-infors-under-en-begransad-tid/, archived at http://perma.cc/ZTB8-2596. 

27 Frågor och svar om kvotflyktingar, MIGRATIONSVERKET, supra note 25. 

28 Compare number of quota refugees with total number of asylum seekers, Applications for Asylum Received, 2015, 

MIGRATIONSVERKET, supra note 4. 
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person arriving in Sweden must apply for asylum immediately upon arrival.29 Asylum is sought 

at the Migration Authority Office Centers (located in the Stockholm area, Malmö, Gothenburg, 

Norrköping, and Gävle).30 

C. Determining “Bona Fide Asylum Seeker” Status

For quota refugees the UNHCR determines whether the person qualifies for refugee status. For 

all other asylum seekers government employees at the Migration Authority make this 

determination.31 Persons meeting the requirements for a refugee under the Refugee Convention 

are given protected status as refugees unless they have committed international crimes or are a 

danger to Swedish national security.32 

D. Residence Permits

From 2012 to December 5, 2015, asylum seekers arriving from Syria were automatically given 

permanent residence.33 On October 22, 2015, the government signed a deal with the opposition 

that only family members and unaccompanied minors would continue to receive permanent 

residence permits.34 On November 24, 2015, the Swedish government announced that it would 

only give permanent residence permits to asylum seekers qualifying as quota refugees—i.e., 

refugees sent by the UNHCR.35 Persons having sought asylum prior to the announcement would 

continue to receive permanent residence permits provided they were part of a family with 

asylum-seeking children who at the time the application is reviewed and decided (anticipated to 

be two years)36 are younger than eighteen.37 

 

29 The Swedish Migration Agency Answers Common Questions, MIGRATIONSVERKET (Dec. 28, 2015), 

http://www.migrationsverket.se/English/Private-individuals/Protection-and-asylum-in-Sweden/Frequently-askedquestions.html, archived at https://perma.cc/JA3W-Q2N3. 

30 Where to Find Us, MIGRATIONSVERKET (July 6, 2015), http://www.migrationsverket.se/English/Contact-us/Findus.html, archived at https://perma.cc/QFT8-PEVJ. 

31 Frågor och svar om kvotflyktingar, MIGRATIONSVERKET (Apr. 29, 2014), http://www.migrationsverket.se/ 

Privatpersoner/Skydd-och-asyl-i-Sverige/Flyktingkvoten/Fragor-och-svar-om-kvotflyktingar.html, archived at 

https://perma.cc/48NX-ZPCN; Till dig som söker asyl i Sverige, MIGRATIONSVERKET (Oct. 6, 2015), 

http://www.migrationsverket.se/Privatpersoner/Skydd-och-asyl-i-Sverige/For-dig-som-ar-vuxen-och-har-soktasyl/Till-dig-som-soker-asyl-i-Sverige.html, archived at https://perma.cc/Z66Q-DMPA. 

32 4 ch. 3 § Aliens Act. 

33 Syrier får permanent uppehållstillstånd, SVT (Sept. 3, 2013), http://www.svt.se/nyheter/inrikes/alla-syrier-farpermanent-uppehallstillstand, archived at https://perma.cc/S4CQ-BZW9.

34 Bred uppgörelse om flyktingsituationen, SVERIGES RADIO (Oct. 23, 2015), http://sverigesradio.se/sida/artikel. 

aspx?programid=83&artikel=6286385, archived at https://perma.cc/BNE9-QUPZ. 

35 Press Release, Regeringskansliet, supra note 14. 

36 Id. 

37 Id. 
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E. Responses to Refugee Crisis 

1. Border Controls 

The Swedish Government is working to considerably decrease the number of asylum seekers 

arriving at the Swedish borders.38 

On November 12, 2015, Sweden implemented temporary border controls that were expected to 

continue for at least six months.39 Ferries carrying passengers (including asylum seekers) are 

required to perform identification controls.40 As a result, persons without government-issued 

identification are not allowed on ferries traveling to Sweden. A similar law requiring train and 

bus operators to perform identification checks on its passengers took effect on January 4, 2016.41 

Although the actual meaning of the new law mandating the ID checks has been disputed, it 

appears the controls are for valid identification only; passengers are not required to present 

a visa.42

2. Medical Tests to Determine Age 

On December 5, 2015, the government announced that unaccompanied minors who seek asylum 

in Sweden will be required to undergo medical testing unless they can prove their age.43 

Medical age tests of asylum seekers who claim to be minors have been a controversial issue in 

Sweden. In 2012 the National Board of Health and Welfare (Socialstyrelsen) published a report 

in which it criticized age determination through medical testing as unreliable.44 The Swedish 

 

38 Id.; see also the government’s continuously updated webpage for government news and action related to the 

refugee crisis, Regeringens arbete med flyktingsituationen, REGERINGSKANSLIET, http://www.regeringen.se/ 

regeringens-politik/regeringens-arbete-med-flyktingsituationen/ (last visited Jan. 11, 2016), archived at

https://perma.cc/2GWF-GCRB. 

39 Press Release, Regeringskansliet, Regeringen beslutar att tillfälligt återinföra gränskontroll vid inre gräns (Nov. 

12, 2015), http://www.regeringen.se/artiklar/2015/11/regeringen-beslutar-att-tillfalligt-aterinfora-granskontroll-vidinre-grans/, archived at https://perma.cc/N7KV-NYDU. 

40 Fartygssäkerhetsförordning [Vessel Safety Regulation] (SFS 2003:438), http://www.notisum.se/rnp/sls/lag/ 

20030438.HTM, archived at https://perma.cc/ZNA9-ABZ8. 

41 Förordning om vissa identitetskontroller vid allvarlig fara för den allmänna ordningen eller den inre säkerheten i 

landet [Regulation on Certain ID-controls During Serious Risk to the Public Order] (SFS 2015:1074), 

http://www.regeringen.se/contentassets/9ad6bc56ac5a4083bfefe74e12e73f47/forordning-om-vissaidentitetskontroller-vid-allvarlig-fara-for-den-allmanna-ordningen-eller-den-inre-sakerheten-i-landet-sfs2015_1074.pdf, archived at https://perma.cc/Q8JT-Z3J4. 

42 See Frågor och svar: Lag och förordning om identitetskontroller vid allvarlig fara för den allmänna ordningen 

eller den inre säkerheten i landet, REGERINGSKANSLIET (Dec.18, 2015; updated Jan. 4, 2016), 

http://www.regeringskansliet.se/artiklar/2015/12/fragor-och-svar-lag-och-forordning-om-identitetskontroller-vidallvarlig-fara-for-den-allmanna-ordningen-eller-den-inre-sakerheten-i-landet/, archived at https://perma.cc/3APVSBEY. 

43 Press Release, Regeringskansliet, supra note 14. 

44 SOCIALSTYRELSEN, MEDICINSK ÅLDERSBEDÖMNING FÖR BARN I ÖVRE TONÅREN, 2012-06-26 Dnr 31156/2011 

[THE NATIONAL BOARD OF HEALTH AND WELFARE REPORT ON MEDICAL AGE DETERMINATION OF CHILDREN IN THE 
Refugee Law and Policy: Sweden 

The Law Library of Congress 241

Bar Association has also published ethical guidance stating that licensed attorneys should not 

participate in medical age determinations of their clients.45 In addition, the Swedish Supreme 

Migration Court (Migrationsöverdomstolen) found in September 2015 that the Migration 

Authority only needed to inform an asylum seeker of the possibility of undergoing medical age 

testing and that a decision on the asylum-seeker’s application can be made without medical 

testing having taken place. The December 2015 announcement appears to change this policy. 

 

3. Return of Afghans 

Because a large number of asylum seekers are unaccompanied minors arriving from 

Afghanistan, the Swedish government and Afghanistan are negotiating an agreement for the 

return of asylum-seeking Afghans to Afghanistan.46

V. Benefits Provided to Asylum Seekers

A. Monetary Aid 

Persons arriving in Sweden as asylum seekers receive free housing and monetary support while 

their application is pending.47 Financial support is made up of a daily sum meant to cover the 

personal expenses of asylum seekers (such as clothing and telephone costs).48 As of September 

2015 the daily sum was SEK 24 (about US$2.80) for single adults, or SEK 19 (about US$2.20) 

for adults who shared a household, and SEK 12 (about US$1.40) for children.49 Persons who 

live in asylum centers where food is not offered free of charge also receive an extra sum to cover 

food expenses, making the total daily sum SEK 71(about US$8.20) or SEK 61 (about US$7.10) 

for adults of a two-person or larger adult household.50 Money received as financial assistance is 

not reclaimed if a person’s asylum application is denied. 

 

 UPPER TEENS, No. 31156/2011 of June 26, 2012], http://www.socialstyrelsen.se/Lists/Artikelkatalog/Attachments/ 

18780/2012-6-54.pdf, archived at https://perma.cc/Z3VA-CE7Z. 

45 Anne Ramberg, Sveriges Advokatsamfund [Swedish Bar Association], Cirkulär nr 21/2015, Vägledande uttalande 

angående medicinska åldersbedömningar i asylärenden [Ethical Guidelines for Medical Age Testing in Asylum 

Cases] (Oct. 6, 2015), https://www.advokatsamfundet.se/Documents/Advokatsamfundet_sv/V%C3%A4 

gledande%20uttalanden/Cirkular_21_2015_Vagledande_uttalande_medicinska_aldersbedomningar.pdf, archived at 

https://perma.cc/Y2FC-78T8. 

46 Press Release, Regeringskansliet, Sverige och Afghanistan inleder förhandlingar om återtagandeavtal (Dec. 4, 

2015), http://www.regeringen.se/pressmeddelanden/2015/12/sverige-och-afghanistan-inleder-forhandlingar-omatertagandeavtal/, archived at https://perma.cc/95GB-FKHG.

47 8 § LAG OM MOTTAGANDE AV ASYLSÖKANDE M.FL. (SFS 1994:137), http://www.notisum.se/rnp/SLS/LAG/ 

19940137.htm, archived at https://perma.cc/U23C-SJ3N. 

48 Id. 17 §. 

49 Ekonomiskt stöd, MIGRATIONSVERKET (Sept. 18, 2015), http://www.migrationsverket.se/Privatpersoner/Skyddoch-asyl-i-Sverige/For-dig-som-ar-vuxen-och-har-sokt-asyl/Ekonomiskt-stod.html, archived at 

https://perma.cc/VL2E-CSRG.

50 Id. 
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B. Health and Dental Care 

Asylum seekers have the right to health care under the Health Care Act51 and the Act on Health 

Care for Asylum Seekers.52 This Special Act on Care for Asylum Seekers also regulates dental 

care.53 Minors who are asylum seekers have the same right to health care as Swedish citizen 

children living in Sweden.54

C. Schooling 

Asylum seekers have a legal right to attend school (ages pre-kindergarten to completion of high 

school) while awaiting asylum.55 

D. Housing 

Upon arriving in Sweden asylum seekers are either provided housing or are responsible for 

finding housing themselves.56 Persons who find their own housing must provide the address to 

the Migration Authority.57 

E. Passports 

There are no travel restrictions that prevent asylum seekers from returning to their home 

countries. Asylum seekers without passports receive an “alien’s passport.”58 Until 2014 almost 

all persons who were granted any form of international protection were also provided passports. 

Following a policy decision in 2014, only persons who have received asylum because of their 

 

51 HÄLSO- OCH SJUKVÅRDSLAG [HEALTH CARE ACT] (SFS 1982:763), http://www.notisum.se/rnp/sls/lag/ 

19820763.htm, archived at https://perma.cc/WT6E-33F3. 

52 LAG OM HÄLSO- OCH SJUKVÅRD ÅT ASYLSÖKANDE M.FL. [ACT ON HEALTH CARE FOR ASYLUM SEEKERS ET AL.] 

(SFS 2008:344), http://www.notisum.se/rnp/sls/lag/20080344.HTM, archived at https://perma.cc/W7Q3-AZMT. 

53 Id. 1 §. 

54 Id. 5 §. 

55 7 ch. 2 § SKOLLAG [ACT ON SCHOOLING] (SFS 2010:800), http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/ 

Svenskforfattningssamling/Skollag-2010800_sfs-2010-800/?bet=2010:800#K7, archived at https://perma.cc/ZZR4-

LT9V; see also This Is How the Migration Agency Is Currently Receiving Refugees, MIGRATIONSVERKET (Oct. 28, 

2015), http://www.migrationsverket.se/English/Private-individuals/Protection-and-asylum-in-Sweden/Nyheter/ 

2015-10-28-This-is-how-the-Migration-Agency-is-currently-receiving-refugees.html, archived at 

https://perma.cc/P3QL-HET8.

56 LAG OM MOTTAGANDE AV ASYLSÖKANDE M.FL. [ACT ON RECEPTION OF ASYLUM SEEKERS ET AL.] (SFS 

1994:137), http://www.notisum.se/rnp/SLS/LAG/19940137.htm, archived at https://perma.cc/U23C-SJ3N. 

57 Boende, MIGRATIONSVERKET (Aug. 29, 2014), http://www.migrationsverket.se/Privatpersoner/Skydd-och-asyl-iSverige/For-dig-som-ar-vuxen-och-har-sokt-asyl/Boende.html, archived at https://perma.cc/7SQU-5NN5. 

58 Främlingspass, MIGRATIONSVERKET (Nov. 5, 2015), http://www.migrationsverket.se/Privatpersoner/Skydd-ochasyl-i-Sverige/For-dig-som-ar-vuxen-och-har-sokt-asyl/Om-du-far-stanna/Framlingspass.html, archived at

https://perma.cc/MNY5-QKHS. 
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relationship with the government of their home countries receive alien’s passports; others are 

requested to apply for a passport through the embassies of their home countries.59 

F. Priority for Asylum Seekers in Schools with a Waiting List

In the fall of 2015 Swedish Minister for Education Gustav Fridolin announced a legislative bill 

that would require schools with queue systems to receive asylum seekers by prioritizing them 

over ordinary citizens who were placed in the queue earlier.60 

G. Impact of Refugee Crisis on Benefits Provided Asylum Seekers 

The refugee crisis has put a strain on Swedish community/societal functions, with the Swedish 

Civil Contingencies Agency reporting in November that there was a risk to the health and life of 

people in Sweden because health providers, the police, and the like could not keep up.61 The 

Swedish Migration Minister has announced that there is no available housing.62 Reportedly, 

asylum seekers spent nights outside without any shelter in November of 2015.63 Temporary 

tents intended to house asylum seekers have been erected.64 Courts have also found that the 

Migration Agency can require that asylum seekers be given priority in housing queues.65 

VI. Path to Citizenship 

Asylum seekers arriving in Sweden receive either a temporary permit or a permanent residence 

permit.66 Until November 24, 2015, most asylums seekers qualified for permanent residency.67 

 

59 Id. 

60 Press Release, Regeringskansliet, Nyanlända elevers rätt till utbildning ska utredas (Nov. 26, 2015), 

http://www.regeringen.se/pressmeddelanden/2015/11/nyanlanda-elevers-ratt-till-utbildning-ska-utredas/, archived at

https://perma.cc/E327-HGVM. 

61 Anette Holmqvist, John Granlund, Larmrapporten – uthålligheten tar slut i december, Aftonbladet (Nov. 18, 

2016), http://www.aftonbladet.se/nyheter/samhalle/article21785732.ab, archived at https://perma.cc/F4NN-QF88. 

62 Kommentarer med anledning av flyktingsituationen, REGERINGSKANSLIET (Nov. 5, 2015), http://www.regeringen. 

se/pressmeddelanden/2015/11/kommentarer-med-anledning-av-flyktingsituationen/, archived at 

https://perma.cc/MGZ3-XQ9Y. 

63 Migrationsverket kan inte längre erbjuda boende till alla asylsökande, MIGRATIONSVERKET (Nov. 19, 2015), 

http://www.migrationsverket.se/Om-Migrationsverket/Nyhetsarkiv/Nyhetsarkiv-2015/2015-11-19-

Migrationsverket-kan-inte-langre-erbjuda-boende-till-alla-asylsokande.html, archived at https://perma.cc/5Q7ZJSHH; Asylsökande tvingades sova utomhus i Malmö, SVERIGES RADIO (Nov. 20, 2015), http://sverigesradio.se/ 

sida/artikel.aspx?programid=96&artikel=6306948, archived at https://perma.cc/5APZ-9U3E. 

64 MSB sätter upp “icke varaktiga” flyktingtält som inte kräver bygglov, DAGENS JURIDIK (Nov. 25, 2015), 

http://www.dagensjuridik.se/2015/11/msb-satter-upp-icke-varaktiga-flyktingtalt-som-inte-kraver-bygglov, archived 

at https://perma.cc/XL5W-7H4K.

65 Behov av asylboende väger tyngre än de som står i bostadskö – hyresvärd förlorar i hovrätten, DAGENS JURIDIK

(Dec. 10, 2015), http://www.dagensjuridik.se/2015/12/behov-av-asylboende-vager-tyngre-dem-som-star-ibostadsko-hyresvard-forlorar-i-hovratten, archived at https://perma.cc/M36W-HE39. 

66 Asylregler, MIGRATIONSVERKET (Jan. 25, 2016), http://www.migrationsverket.se/Privatpersoner/Skydd-och-asyli-Sverige/Att-ansoka-om-asyl/Asylregler.html, archived at https://perma.cc/U59S-XDLZ. 

67 Id. 
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After November 24, 2015, however, only UNHCR quota refugees qualify for 

permanent residency.68 

To become a citizen through naturalization a person must have been a permanent resident of 

Sweden for four years if he or she is a refugee.69 There are also special rules for the acquisition 

of citizenship that apply to young adults.70 A young adult (between eighteen and twenty-one 

years of age) can acquire Swedish citizenship through notification if he or she has a permanent 

residence permit and has lived in Sweden since the age of thirteen, or fifteen if he or she is 

stateless.71 In addition to being a permanent resident, naturalization also requires that the person 

seeking citizenship be at least eighteen years old and prove his/her identity.72 

VII. Monitoring by Security Police 

The Security Police is involved in reviewing some applications and advises against the granting 

of asylum in certain cases.73 The purpose is to ensure that persons who are a threat to Sweden 

are not given permanent residency rights or citizenship.74 Only a small portion of all asylum 

applications are reviewed by the Security Police.75 In 2014, only 109 out of 81,301 asylum 

applications were reviewed by the Security Police. In twenty-four of these cases the Security 

Police advised against granting the person asylum.76 The Security Police does not consider 

asylum seekers’ needs for asylum but only looks to the security of Sweden and Swedish 

interests.77 The Security Police also reviews citizenship applications, which it considers “a 

central part of [its] work.”78 In 2014 it reviewed 2,252 out of 36,804 applications for citizenship 

(158 remitted) and advised against granting of citizenship in thirty-one cases.79

In February 2015 a Syrian citizen who had been granted asylum was convicted of having 

tortured a person in Syria. The Security Police had determined that it was against Swedish 

 

68 Press Release, Regeringskansliet, supra note 14. 

69 11 § LAG OM SVENSKT MEDBORGARSKAP [ACT ON SWEDISH CITIZENSHIP] (SFS 2001:82), http://www.notisum. 

se/rnp/sls/lag/20010082.HTM, archived at https://perma.cc/D94K-36A8. 

70 Id. 8 §.

71 Id. 

72 Id. 11 §. 

73 Säpo bedömer allt fler asylärenden, SVERIGES RADIO (Nov. 10, 2015), http://sverigesradio.se/sida/artikel.aspx? 

programid=83&artikel=6299129, archived at https://perma.cc/KB7R-DJKZ. 

74 SÄKERHETSPOLISENS ÅRSBOK 2014 [SECURITY POLICE ANNUAL REPORT 2014] at 62, http://www.sakerhetspolisen. 

se/download/18.4c7cab6d1465fb27b01ef6/1426608732902/Arsbok2014_webb.pdf, archived at 

https://perma.cc/RP4C-GPTY. 

75 Id. at 63. 

76 Id. 

77 Id. 

78 Id. 

79 Id. 
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interests that he remain in Sweden, but the court found that he could not be deported because of 

the current situation in Syria.80

VIII. Role of Municipalities 

A. Historical Right to Refuse Housing of Asylum Seekers 

Municipalities have a right to self-governance in the constitution.81 Historically, a few regions 

such as Södertälje have accepted large numbers of asylum seekers while other more affluent 

municipalities have received smaller numbers.82 

The Swedish government has proposed that all municipalities should be required to accept 

asylum seekers and persons who have been granted asylum status in their municipalities as of 

March 2016.83 However, the proposal states that consideration should be given to the socioeconomic circumstances (such as unemployment rate) in the municipality.84

B. Financial and Social Responsibility to Care for Asylum Seekers 

While the state covers the costs (housing, health care, social services, schools) for asylum 

seekers for the first two years while they are in Sweden, the municipality is thereafter responsible 

for the asylum seeker.85 This includes the county council’s responsibility to provide health care 

to the asylum seeker. Also, undocumented immigrants have the right to urgent health care at the 

cost of the municipality (county council).86 

IX. Managing the Refugee Crisis 

In addition to the measures in response to the refugee crisis mentioned elsewhere in this report, 

Swedish agencies and municipalities are expected take a number of measures to support the 

volume of asylum seekers now seeking refuge in Sweden. These include raising municipal 

 

80 Emma Bouvin, 28-åring döms för folkrättsbrott, DAGENS NYHETER (Feb. 26, 2015), http://www.dn.se/nyheter/ 

sverige/28-aring-doms-for-folkrattsbrott/, archived at https://perma.cc/KLM6-EBBV. 

81 1 ch. 1§ REGERINGSFORMEN [RF] [CONSTITUTION] (SFS 1974:152), https://www.notisum.se/rnp/sls/lag/ 

19740152.htm, archived at https://perma.cc/9WFN-QL65.

82 See Ekman, supra note 2.

83 Proposition [Prop.] [Government Bill] 2015/16:54, Ett gemensamt ansvar för nyanlända [A Shared Responsibility 

for New Arrivals], http://www.regeringen.se/contentassets/49e25a1fca3d4dcbbc5ed13d2bfb9b03/prop-2015_16_54-

ett-gemensamt-ansvar-for-mottagande-av-nyanlanda.pdf, archived at https://perma.cc/9NDA-T4U9. 

84 Id. at 5 (proposed section 7). 

85 15 § LAG OM ETABLERINGSINSATSER FÖR VISSA NYANLÄNDA INVANDRARE [ACT ON MEASURES FOR 

ESTABLISHMENT OF NEWLY ARRIVED IMMIGRANTS] (SFS 2010:197), http://www.lagboken.se/Views/Pages/ 

GetFile.ashx?portalId=56&cat=47592&docId=619301&propId=5, archived at https://perma.cc/V89D-22WY. 

86 See LAG OM HÄLSO- OCH SJUKVÅRD TILL VISSA UTLÄNNINGAR SOM VISTAS I SVERIGE UTAN NÖDVÄNDIGA 

TILLSTÅND [ACT ON HEALTH CARE FOR CERTAIN ALIENS IN SWEDEN WITHOUT NECESSARY PAPERS] (SFS

2013:407), http://www.notisum.se/rnp/sls/lag/20130407.htm, archived at https://perma.cc/BX32-H3MJ. 
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taxes,87 creating low-wage jobs,88 and building temporary housing.89 The Swedish government 

has also signed an extra budget amendment bill because of the migration crisis.90 Sweden 

moreover has asked the European Commission for relief by reducing its monetary contribution to 

the EU budget and by relocating asylum seekers from Sweden.91 On December 15, 2015, the 

European Commission announced that Sweden was exempted from its obligations under the 

relocation scheme.92 Sweden’s other requests are still pending. 

 

87 SVERIGES KOMMUNER OCH LANDSTING, EKONOMIRAPPORTEN OM KOMMUNERNAS OCH LANDSTINGENS EKONOMI –

OKTOBER 2015, http://webbutik.skl.se/bilder/artiklar/ pdf/7585-077-1.pdf?issuusl=ignore (in Swedish), archived at 

https://perma.cc/BB77-KS9X; SWEDISH ASSOCIATION OF LOCAL AUTHORITIES AND REGIONS, THE ECONOMY 

REPORT ON SWEDISH MUNICIPAL AND COUNTY COUNCIL FINANCES – OCTOBER 2015, 

http://webbutik.skl.se/bilder/artiklar/pdf/7585-078-8.pdf?issuusl=ignore (in English), archived at

https://perma.cc/KM2T-HKNA. 

88 Press Release, Regeringskansliet, supra note 14. 

89 Id.; see also Uppdrag att ta fram vägledning och föreskrifter till bestämmelserna om tillfälliga 

anläggningsboenden i plan- och byggförordningen [Assignment to Create Guidelines and Regulations to the 

Provisions on Temporary Housing in the Building Regulation] (2011:338) Diarienummer: N2015/08896/PUB 

(delvis), http://www.regeringen. se/regeringsuppdrag/2015/12/uppdrag-att-ta-fram-vagledning-och-foreskrifter-tillbestammelserna-om-tillfalliga-anlaggningsboenden-i-plan--och-byggforordningen-2011338/, archived at 

https://perma.cc/5L5K-GZVA. For a list of Swedish government responses and proposals, see Regeringens 

åtgärder med anledning av flyktingsituationen, REGERINGSKANSLIET, http://www.regeringen.se/regeringenspolitik/regeringens-arbete-med-flyktingsituationen/ atgarder-med-anledning-av-flyktingsituationen/ (last visited Jan. 

13, 2016), archived at https://perma.cc/3HR8-WCJU. 

90 Regeringens proposition [Prop.] [Government Bill] 2015/16:47 Extra ändringsbudget för 2015 [Extra Amending 

Budget for 2015], http://www.regeringen.se/contentassets/cbd9f48b9fcf4031ad0c8fb10c638cc4/extraandringsbudget-for-2015-prop.-20151647, archived at https://perma.cc/Q5T6-QTUA. 

91 Press Release, Regeringskansliet, Statsministern tog emot Europeiska rådets ordförande Donald Tusk (Nov. 5, 

2015), http://www.regeringen.se/artiklar/2015/11/statsministern-tog-emot-europeiska-radets-ordforande-donaldtusk/, archived at https://perma.cc/C997-RCC8. 

92 Press Release, European Commission, Commission Proposes Temporary Suspension of Sweden’s Obligations 

Under the EU Relocation Mechanism (Dec. 15, 2015), http://europa.eu/rapid/press-release_IP-15-6329_en.htm, 

archived at https://perma.cc/SQV5-XJQV. 
The Law Library of Congress 247

Switzerland 

Jenny Gesley 

Foreign Law Specialist

SUMMARY Swiss asylum legislation is based on the principles contained in the Geneva Convention 

Relating to the Status of Refugees. The most important norms for admission and handling 

of refugees are contained in the Asylum Act and the Foreign Nationals Act. People who 

are recognized as refugees or are awarded temporary protection are granted a temporary 

residence permit. An asylum application can be submitted at the airport, at the border, or 

inside Switzerland at a reception and processing center. The applicant’s personal details 

are recorded, his or her fingerprints and photographs are taken, and the data are compared 

with national and European databases. The State Secretariat for Migration conducts an 

interview to decide whether to approve or deny the asylum application. If asylum is 

granted, the refugee can claim social security benefits as if he or she were a Swiss national. 

After ten years of permanent residence and if additional conditions are met, a foreigner 

may apply for citizenship in Switzerland. For recognized refugees half of the years spent 

in Switzerland on a temporary residence permit may count towards that total time.

I. General Background 

Swiss asylum legislation is based on the principles contained in the Geneva Convention Relating 

to the Status of Refugees.1

 Asylum is therefore awarded in accordance with criteria recognized 

under international law to applicants who are threatened or persecuted. Furthermore, 

Switzerland supports international campaigns to help people in regions affected by war and 

disaster, or grants temporary visas. The Swiss Federal Council (Bundesrat)2

 also supports efforts 

to eliminate causes for flight and involuntary migration.3

Between January and November 2015, 34,653 asylum applications were submitted in 

Switzerland, 21.8% of which were approved.4

 In November 2015, 5,691 asylum applications 

were registered in Switzerland.5

 This is an increase of 941 applications in comparison to the 

previous month. Most applicants in November came from Afghanistan (2,386), Syria (991), and 

Iraq (586),6

 and 21.8% of these applications were granted.7 

 

1

 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, http://www. 

unhcr.org/3b66c2aa10.pdf, archived at http://perma.cc/K3X4-FA37. 

2

 The Federal Council (Bundesrat) is the name of the Swiss government. 

3 Basic Principles of Asylum Legislation, STATE SECRETARIAT FOR MIGRATION, https://www.sem.admin.ch/ 

sem/en/home/asyl/asyl/asylrecht.html (last updated Nov. 14, 2011), archived at http://perma.cc/ZG4B-NN6U. 

4

 ASYLSTATISTIK, STAATSSEKRETARIAT FÜR MIGRATION [ASYLUM STATISTICS, STATE SECRETARIAT FOR 

MIGRATION] 18 (2015), https://www.sem.admin.ch/dam/data/sem/publiservice/statistik/asylstatistik/monat/2015/ 

stat-mt-201511-d.pdf, archived at http://perma.cc/SS24-UKYW. 

5 Id. at 14. 

6 Id. at 15. 
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II. General Rules and Norms for Admitting Refugees and Handling Refugee Claims 

The most important norms for admission and handling of refugees are contained in the Asylum 

Act8 and the Foreign Nationals Act.9 

A. Asylum Act 

The Asylum Act regulates the granting of asylum, the legal status of refugees in Switzerland, and 

the temporary protection of persons in need of protection in Switzerland and their return.10 The 

State Secretariat for Migration (Staatssekretariat für Migration, SEM) is charged with denying or 

refusing an asylum application as well as deciding whether to remove an applicant 

from Switzerland.11

Refugees are defined as persons who “in their native country or in their country of last residence 

are subject to serious disadvantages or have a well-founded fear of being exposed to such 

disadvantages for reasons of race, religion, nationality, membership of a particular social group 

or due to their political opinions.”12 Serious disadvantages include a “threat to life, physical 

integrity or freedom as well as measures that exert intolerable psychological pressure.”13

People who have refused to perform military service or have deserted from the military have no 

right to refugee protection.14

Temporary protection is awarded to an applicant if he or she is in serious general danger, in 

particular during a war or civil war, as well as in situations of general violence.15 

 7 Id. at 14. 

8

 Asylgesetz [AsylG] [Asylum Act], June 26, 1998, as amended, SYSTEMATISCHE RECHTSSAMMLUNG [SR] 142.31, 

https://www.admin.ch/opc/de/classified-compilation/19995092/201510010000/142.31.pdf, archived at http://perma. 

cc/4EWF-5P6B, unofficial English translation at https://www.admin.ch/opc/en/classified-compilation/19995092/ 

201510010000/142.31.pdf, archived at http://perma.cc/QG7D-ZSCM. 

9

 Bundesgesetz über die Ausländerinnen und Ausländer [Ausländergesetz] [AuG] [Foreign Nationals Act], Dec. 16, 

2005, SR 142.20, https://www.admin.ch/opc/de/classified-compilation/20020232/201510010000/142.20.pdf, 

archived at http://perma.cc/6G74-UYXM, unofficial English translation at https://www.admin.ch/opc/en/classifiedcompilation/20020232/201510010000/142.20.pdf, archived at http://perma.cc/5LEJ-RKJX. 

10 Asylum Act art. 1. 

11 Id. art. 6a, para. 1. 

12 Id. art. 3, para. 1. 

13 Id. art. 3, para. 2. 

14 Id. art. 3, para. 3. 

15 Id. § 4. 
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B. Foreign Nationals Act 

The Foreign Nationals Act regulates the entry and exit, residence, and family reunification of 

foreign nationals in Switzerland, as well as measures to further integration.16 Residence and 

work permits are granted by the Swiss cantons.17

III. Processes for Handling Refugees Arriving at the Border 

The asylum procedure starts with the submission of an application.18 It can be filed at a border 

control point at a Swiss airport, upon entry at an open border crossing, or at a reception and 

processing center inside Switzerland.19 Since September 2012, it has no longer been possible to 

submit an asylum application from abroad.20

If the application for asylum is made at the border or within Switzerland, the asylum seeker is 

assigned to a reception and processing center.21 At the reception and processing center the 

applicant’s personal details are recorded and fingerprints and photographs taken, and summary 

questioning is performed.22

If the application is made at an airport, personal details are recorded at the airport and 

fingerprints and photographs taken. Other biometric data may be collected, and summary 

questioning is performed.23 The authorities must decide within two days whether the applicant 

will be allowed to enter Switzerland.24 The asylum procedure may take place at the airport or in 

a cantonal processing center.25 

IV. Adjustments/Amendments to the Procedure for Handling Refugees as a Result 

of the Current Refugee Crisis 

A. Controlling Mass Immigration Initiative 

On February 9, 2014, the Swiss adopted a popular initiative aimed at controlling immigration by 

introducing annual quotas as well as by amending the Agreement on the Free Movement of 

 

16 Foreign Nationals Act art. 1. 

17 Id. art. 40. 

18 Asylum Act art. 18. 

19 Id. art. 19. 

20 Asylgesetz (AsylG) (Dringliche Änderungen des Asylgesetzes) Änderung vom 28. September 2012 [Asylum Act 

(Urgent Amendments of the Asylum Act) Amendment of September 28, 2012], AMTLICHE SAMMLUNG [AS] 2012, 

5359, https://www.admin.ch/opc/de/official-compilation/2012/5359.pdf, archived at http://perma.cc/4BFQ-LBLU. 

21 Asylum Act art. 21. 

22 Id. art. 26, para. 2. 

23 Id. art. 22. 

24 Id. art. 22, para. 4. 

25 Id. art. 23. 
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Persons between Switzerland and the European Union (EU) with regard to the social security 

benefits of immigrants seeking employment and the residence permits of immigrants who have 

lost their jobs.26 The initiative introduced a new article 121a into the Swiss Constitution.27 

Article 121a of the Swiss Constitution tasks the Federal Council and the Parliament with 

introducing a new admissions system for foreign nationals within three years and negotiating an 

amendment to the Agreement on Free Movement of Persons. On February 11, 2015, the Federal 

Council released draft legislation to amend the Foreign Nationals Act.28 The Federal Council is 

consulting with the EU on a safeguard clause, but has also instructed the Federal Department of 

Justice and Police to draft a unilateral safeguard clause to allow the autonomous control of 

immigration by imposing temporary and targeted restrictions on permits for persons from 

EU/EFTA states.29

Furthermore, the Federal Council is consulting on reducing administrative hurdles for recognized 

refugees and temporarily admitted persons so that they can find work more easily.30

B. Amendment of the Asylum Act 

Another amendment currently under discussion would restructure the asylum system. The 

Federal Council has drafted legislation that was approved by the Parliament on September 25, 

2015. The deadline for a referendum on the draft legislation ends on January 14, 2016.31 

The draft legislation would amend the Asylum Act to accelerate the asylum process. A majority 

of asylum applications would be processed in federal centers instead of centers run by the 

cantons. In addition, asylum seekers would receive free legal advice and representation for the 

 

26 Volksinitiative „Gegen Masseneinwanderung“, Volksabstimmung vom 9. Februar 2014 [Popular Initiative 

“Against Mass Immigration,” Popular Vote of February 9, 2014], EIDGENÖSSISCHES JUSTIZ- UND 

POLIZEIDEPARTEMENT [FEDERAL DEPARTMENT OF JUSTICE AND POLICE], http://www.ejpd.admin.ch/ejpd/de/ 

home/aktuell/abstimmungen/2014-02-09.html, archived at http://perma.cc/E8XE-483Q. 

27 BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSCHAFT [BV] [FEDERAL CONSTITUTION OF THE SWISS 

CONFEDERATION], Apr. 18, 1999, SR 101, https://www.admin.ch/opc/de/classified-compilation/19995395/20150614 

0000/101.pdf, archived at http://perma.cc/W5Y9-FLDJ, unofficial English translation at https://www.admin.ch/opc/ 

en/classified-compilation/19995395/201506140000/101.pdf, archived at http://perma.cc/3UYQ-R3QX. 

28 Bundesgesetz über die Ausländerinnen und Ausländer [Ausländergesetz] [AuG] (Steuerung der Zuwanderung) 

Änderung [Foreign Nationals Act (Control of Immigration) Amendment], https://www.sem.admin.ch/dam/data/ 

sem/aktuell/gesetzgebung/teilrev_aug_art-121a/vorentw-aug-d.pdf, archived at http://perma.cc/DS95-7PWH. 

29 Implementation of the New Constitutional Provisions on Immigration, STATE SECRETARIAT FOR MIGRATION,

https://www.sem.admin.ch/sem/en/home/themen/fza_schweiz-eu-efta/umsetzung_vb_zuwanderung.html (last 

updated Dec. 18, 2015), archived at http://perma.cc/SZA3-E8H4. 

30 Press Release, Federal Council, Controlling Immigration: Federal Council Approves Draft Legislation and 

Negotiating Mandate (Feb. 11, 2015), https://www.sem.admin.ch/sem/en/home/aktuell/news/2015/ref_2015-02-

110.html, archived at http://perma.cc/68RH-6CPC. 

31 Änderung des Asylgesetzes (AsylG) (Neustrukturierung des Asylbereiches) [Amendment of the Asylum Act

(Asylum Act) (Restructuring of the Asylum System)], STAATSSEKRETARIAT FÜR MIGRATION, https://www.sem.admin. 

ch/sem/de/home/aktuell/gesetzgebung/aend_asylg_neustruktur.html (last updated Sept. 3, 2014), archived at

http://perma.cc/B26W-FW8Y. 
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asylum procedure.32 The legislation aims at processing the majority of asylum applications 

within 140 days.33

V. Steps Taken to Determine Whether a Person is Entitled to Refugee Status 

After the asylum seeker is allowed entry into Switzerland and has submitted an application at the 

airport or a reception and processing center, there is an initial screening and questioning. In the 

next step, the applicant is allocated to a canton by the SEM34 according to a quota system 

codified in article 21 of Asylum Order 1.35 

Interviews to establish whether a person is entitled to refugee status are conducted either in the 

reception and processing centers or in the canton within twenty days after the decision on 

allocation.36 The SEM takes the results from the initial questioning into account. The agency 

has the obligation to investigate the facts,37 but the burden of proof is on the applicant.38

If the asylum application is approved, the applicant receives a temporary residence permit.39 

After ten years, a permanent residence permit may be issued.40

VI. Screening Procedure for Arriving Refugees Being Resettled in the Country 

The Swiss Confederation has set up reception and processing centers that are run by the SEM.41 

The reception and processing centers record the applicant’s personal details and take fingerprints 

and photographs. They may collect additional biometric data, prepare reports on a person’s 

age,

42 verify evidence and travel and identity documents, and make inquiries specific to origin 

and identity. Furthermore, the centers ask general questions about the applicant’s identity and 

 

32 Asylgesetz [AsylG] Änderung [Asylum Act Amendment], https://www.sem.admin.ch/dam/data/sem/aktuell/ 

gesetzgebung/aend_asylg_neustruktur/vorentw-d.pdf, archived at http://perma.cc/3XQD-6BVX. 

33 Id. art. 24, para. 6. 

34 Asylum Act art. 27. 

35 Asylverordnung 1 über Verfahrensfragen [Asylverordnung 1] [AsylV 1] [Asylum Order 1 on Procedural 

Questions] [Asylum Order 1], Aug. 11, 1999, as amended, SR 142.311, https://www.admin.ch/opc/de/classifiedcompilation/19994776/201509290000/142.311.pdf, archived at http://perma.cc/9KVQ-ZJ5C. 

36 Asylum Act art. 29, para. 1. 

37 Id. art. 6; Verwaltungsverfahrensgesetz [VwVG] [Administrative Procedure Act], Dec. 20, 1968, SR 172.021, 

art. 12, https://www.admin.ch/opc/de/classified-compilation/19680294/201501010000/172.021.pdf, archived at

http://perma.cc/2CMC-N47N, unofficial English translation at https://www.admin.ch/opc/en/classified-compilation/ 

19680294/201501010000/172.021.pdf, archived at http://perma.cc/3U2X-9J4X. 

38 Asylum Act art. 7. 

39 Id. art. 74, para. 2. 

40 Id. art. 74, para. 3. 

41 Id. art. 26, para. 1. 

42 Id. art. 17, para. 3bis. 
Refugee Law and Policy: Switzerland 

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itinerary, and his or her reasons for leaving the country of origin.43 The applicant has a duty to 

cooperate and must hand over necessary documents and identification papers.44

The Swiss authorities are allowed to search the applicant45 and to confiscate travel documents 

and identity papers.46

Fingerprints are compared with the fingerprint database managed by the Federal Office of 

Police.47 They are also entered into the European Eurodac database.48

VII. Accommodations and Assistance Provided to Refugees 

Recognized refugees, asylum seekers, provisionally admitted persons who have been in 

Switzerland for less than seven years, and those in need of protection can claim public social 

assistance. The cantonal authorities are responsible for providing that support.49 The amount of 

benefits provided differs according to cantonal law.50 The costs are reimbursed by the 

federal government.51

Public assistance paid to asylum seekers and provisionally admitted persons without a residence 

permit is less than that paid to Swiss nationals52—generally, 20% less than what a Swiss national 

receives. Asylum seekers are generally awarded around 1,200 Swiss francs (CHF) 

(approximately US$1,215) per person each month for accommodations, food, toiletries and 

household articles, clothing, pocket money, and health insurance and health care costs.53 

Recognized refugees are provided with the same amount of public assistance as a Swiss 

national.54 Most cantons have delegated the task of providing social security services to relief 

 

43 Id. art. 26, para. 2. 

44 Id. art. 8. 

45 Id. art. 9. 

46 Id. art. 10. 

47 Id. art. 99, para. 3. 

48 Id. art. 102a bis. 

49 Id. art. 80. 

50 Id. art. 82, para. 1. 

51 Id. art. 88. 

52 Id. art. 82, para. 3. 

53 Social Assistance for Asylum Seekers, Provisionally Admitted Persons and Those in Need of Protection, STATE 

SECRETARIAT FOR MIGRATION, https://www.sem.admin.ch/sem/en/home/asyl/sozialhilfe/asylsuchende__ 

vorlaeufig.html (last updated Oct. 19, 2015), archived at http://perma.cc/4J2T-97PT. 

54 Social Assistance, STATE SECRETARIAT FOR MIGRATION, https://www.sem.admin.ch/sem/en/home/asyl/sozial 

hilfe.html (last updated Aug. 11, 2015), archived at http://perma.cc/9UNS-NF9J. 
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organizations. In the remaining cantons, the task is fulfilled by the general municipal social 

service agencies or by special cantonal welfare services for refugees.55 

Once an asylum seeker is recognized as a refugee, he or she can also claim a child allowance.56

VIII. Steps Resettlement Applicants Must Undergo Before Arrival 

On March 6, 2015, the Swiss Federal Council decided to accept over the course of three years 

three thousand people from Syria who have been designated by the United Nations High 

Commissioner for Refugees (UNHCR) as vulnerable refugees. Two thousand refugees will be 

part of the resettlement program, and the remaining one thousand refugees will receive a 

humanitarian visa.57 All three thousand will receive refugee status in Switzerland and will not 

have to go through the usual asylum procedure. For security reasons, the files of all people in the 

program will be checked by the Federal Intelligence Service. Furthermore, Switzerland will try 

to ensure a fair balance between people with a higher potential for integration (children, skilled 

workers) and people with special needs (handicapped, sick, the elderly).58

IX. Path to Naturalization 

In general, foreign nationals may apply for a naturalization license only if they have been 

permanent residents of Switzerland for a total period of twelve years, including three of the five 

years prior to the application being made.59 

An amendment to the Swiss Citizenship Act passed in 2014 shortened the residence period to ten 

instead of twelve years.60 Furthermore, for asylum seekers and recognized refugees, half of the 

 

55 Social Assistance for Persons with Refugee Status, STATE SECRETARIAT FOR MIGRATION, https://www.sem.admin. 

ch/sem/en/home/asyl/sozialhilfe/anerkannte_fluechtlinge.html (last updated Oct. 19, 2015), archived at http://perma. 

cc/WHN7-8NRE. 

56 Asylum Act art. 84. 

57 Press Release, Der Bundesrat [Federal Council], Bundesrat beschliesst zusätzliche Massnahmen für die Opfer des 

Syrienkonflikts [Federal Council Agrees on Additional Measures for the Victims of the Syrian Conflict] (Mar. 6, 

2015), https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-56476.html, archived at

http://perma.cc/E2S3-RJ9G. 

58 FAKTENBLATT: AKTUELLE LAGE, RESETTLEMENT UND RELOCATION [FACT SHEET: CURRENT SITUATION,

RESETTLEMENT AND RELOCATION], EIDGENÖSSISCHES JUSTIZ- UND POLIZEIDEPARTEMENT, STAATSSEKRETARIAT 

FÜR MIGRATION 3 (Sept. 18, 2015), https://www.eda.admin.ch/content/dam/mission-eu-brussels/de/documents/ 

EJPD_Faktenblatt_Aktuelle%20Lage%20Asyl%20Resettlment%20und%20Relocation%20DE.pdf, archived at

http://perma.cc/9ZNW-PY3L. 

59 Bürgerrechtsgesetz [BÜG] [Swiss Citizenship Act], Sept. 29, 1952, SR 141.0, art. 15, para. 1, https://www.admin. 

ch/opc/de/classified-compilation/19520208/201301010000/141.0.pdf, archived at http://perma.cc/8FHC-N79G, 

unofficial English translation at https://www.admin.ch/opc/en/classified-compilation/19520208/201301010000/ 

141.0.pdf, archived at http://perma.cc/8349-5MV8 (both texts current only up to Jan. 1, 2013). 

60 Bürgerrechtsgesetz, [BÜG] [Swiss Citizenship Act] June 20, 2014, BUNDESBLATT [BBL.] [FEDERAL GAZETTE] 

5133 (2014), https://www.admin.ch/opc/de/federal-gazette/2014/5133.pdf, archived at http://perma.cc/ZW97-

WAL9. 
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years spent in Switzerland on a temporary residence permit will count towards the total period.61 

The Federal Council has not yet set a date on which the amendments will enter into force.62

Before a naturalization license is granted, the Swiss authorities examine if the applicant 

a. is integrated into Swiss society; 

b. is familiar with Swiss habits, customs and practices; 

c. abides by Swiss law; 

d. and does not pose a risk to Swiss internal or external security.63 

The specific Swiss canton and commune might have additional requirements.64

X. Monitoring and Movement of Refugees While in the Country 

While the asylum application is pending, asylum seekers are obligated to make themselves 

available to the federal and cantonal authorities and must inform the competent authorities of 

their address and any change of address immediately.65

According to section 28 of the Asylum Act, the SEM or the cantonal authorities may allocate a 

place of stay to asylum seekers. Refugees must stay in the canton to which they have been 

allocated,66 but may choose to reside anywhere within that canton.67 If they wish to relocate to 

another canton, they must apply for permission from the new canton.68

XI. Roles of Subnational Governments 

The Swiss cantons are responsible for providing social assistance to asylum seekers and 

refugees, although some cantons have delegated this task to relief organizations, general 

municipal social service agencies, or special cantonal welfare services for refugees. The costs 

are reimbursed by the federal government. In 2009, the cantons received CHF55.90 

(approximately US$65.60) per day on average for each refugee requiring support.69

 

61 Id. art. 33, para. 1, letter b. 

62 Id. art. 52. 

63 Swiss Citizenship Act, Sept. 29, 1952, art. 14. 

64 Id. art. 15a. 

65 Asylum Act art. 8, para. 3. 

66 Id. art. 74, para. 1. 

67 Foreign Nationals Act art. 36. 

68 Id. art. 37, para. 1. 

69 STATE SECRETARIAT FOR MIGRATION, supra note 55. 
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Furthermore, the canton to which an asylum seeker has been allocated is responsible for 

enforcing a removal order from the SEM when an asylum application has been rejected.70

 

70 Asylum Act arts. 44, 46. 
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Turkey 

Wendy Zeldin 

Senior Legal Research Analyst*

SUMMARY Although most refugees seeking asylum in Turkey are from non-European countries, 

Turkey’s instrument of accession to the 1951 Convention on the Status of Refugees limits 

the scope of the Convention’s application to European asylum seekers, and Turkey’s 

Settlement Act still places emphasis on persons of Turkish descent and culture as the 

immigrants eligible for settlement in the country and possible citizenship. While Turkey’s 

Law on Foreigners and International Protection has instituted major changes in the 

country’s asylum system, most current asylum seekers are placed under “temporary 

protection” for settlement in another country rather than being accepted as refugees for 

settlement in Turkey. In the case of the influx of migrants from Syria, Turkish authorities 

have over the years expanded their rights and protections, but they remain barred from 

gaining regular refugee status and instead are classified as beneficiaries of 

temporary protection. 

 Applications for refugee status must be filed in person in provincial offices of the 

Directorate General of Migration Management. Such applications are registered and the 

applicant is then scheduled for an interview. The authorities issue the applicant and any 

accompanying family members an International Protection Applicant Identity Document, 

valid for six months, upon completion of the interview. Assessment of the application is to 

be finalized within six months of the date of its registration. Under some circumstances, 

such as giving the authorities misleading information, an application is handled under an 

accelerated procedure that may result in its being rejected. 

 Under the terms of temporary protection, the authorities provide for refugees’ basic needs 

and also furnish social services, translation services, IDs, travel documents, access to 

primary and secondary education, and work permits. Applicants for protection may be 

obliged by the authorities to live in designated reception and accommodation centers or in 

a specific location, and to report to the authorities in a certain manner or at 

certain intervals. 

I. General Background 

In the not too distant past, Turkey was viewed primarily as “a country of emigration (or migrantsending country) and a source country for asylum seekers.”1

 With the advent of the new century, 

however, Turkey has seen changing migration patterns with respect to irregular labor migrants, 

 

*

 At present there are no Law Library of Congress research staff members versed in Turkish. This report has been 

prepared by the author’s reliance on practiced legal research methods and on the basis of relevant legal resources, 

chiefly in English, currently available in the Law Library and online. 

1

 Ahmet İçduygu, Turkey’s Evolving Migration Policies: A Mediterranean Transit Stop at the Doors of the EU 1 

(IAI Working Papers 15/31, Sept. 21, 2015), http://www.iai.it/sites/default/files/iaiwp1531.pdf, archived at

https://perma.cc/2SQS-UBFZ. 
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transit migrants, asylum seekers and refugees, and regular migrants.2

 Over the past two decades, 

“as a result of intense migratory movements,” Turkey has emerged as a “transit country,” and 

morphed from a country of emigration to one of immigration.3

According to a 2016 profile report issued by the Office of the United Nations High 

Commissioner for Refugees (UNHCR), since the onset of the Syrian crisis in 2011 Turkey “has 

maintained an emergency response of a consistently high standard.” Under a temporary 

protection regime, the government has ensured “non-refoulement and assistance in 22 camps, 

where an estimated 217,000 people are staying,” and at the time the report was issued was said to 

be constructing two additional camps.4 Antonio Guterres, former United Nations high 

commissioner for refugees, in praising Turkey’s efforts to open its borders to large numbers of 

Syrians, Iraqis and Afghans, has reportedly stated that “Turkey accepted 11% of all refugees”5

 of 

this type and that “Turkey is now home to around 45 per cent of all Syrian refugees in the 

region.”6

 The number of Syrian refugees was said to have reached nearly 1.7 million as of 

autumn 2015 (with some 2.2 million Syrians having entered the country from the outbreak of the 

Syrian civil war to December 2015).7

 

Nevertheless, a June 2015 report issued by the Migrant Integration Policy Index (MIPEX), 

covering 2014, had stated that “Turkey’s legal framework hinders the integration of migrants,” 

and the country “is failing to integrate migrants amid an increased flow of refugees from Syria.”8

The report criticized the fact that there were “restricted rights and little-to-no-state support” for 

immigrant workers and their families, and stated that “Turkey also has the weakest protections 

 

2

 Ahmet İçduygu & Damla B. Aksel, Turkish Migration Policies: A Critical Historical Retrospective, 18:3 

PERCEPTIONS 179 (Autumn 2013), http://sam.gov.tr/wp-content/uploads/2014/02/Ahmet-%C4%B0%C3%A7duyguand-Damla-B.-Aksel.pdf, archived at https://perma.cc/8P3Y-BUPH. 

3 İçduygu, supra note 1, at 3. 

4 2015 UNHCR Country Operations Profile – Turkey, UNHCR, http://www.unhcr.org/pages/49e48e0fa7f.html (last 

visited Jan. 28, 2016), archived at https://perma.cc/8U56-MF75. 

5

 Mary Chastain, New Turkey Refugee Laws Keep Syrian Refugees in Limbo, BREITBART (June 19, 2015), 

http://www.breitbart.com/national-security/2015/06/19/new-turkey-refugee-laws-keep-syrian-refugees-in-limbo, 

archived at https://perma.cc/9UB7-M5W3. 

6

 Press Release, UNHCR, UNHCR: Total Number of Syrian Refugees Exceeds Four Million for First Time (July 9, 

2015), http://www.unhcr.org/559d67d46.html, archived at https://perma-archives.org/warc/V64U-ZK3N. 

7 Turkey to Require Syrian Visas amid Efforts to Implement EU Deal, EUROPE ONLINE MAGAZINE (Dec. 17, 2015), 

http://en.europeonline-magazine.eu/turkey-to-require-syrian-visas-amid-efforts-to-implement-eu-deal_429898.html, 

archived at https://perma.cc/UQ98-DCP3. The Regional Refugee & Resilience Plan 2015-16: Turkey, which had 

projected the number of Syrian refugees in Turkey in 2015 to reach 2.5 million, estimated that “300,000 will reside 

in 25 camps and 2.2 million people will live among communities. In addition, it is estimated that 8.2 million people 

in refugee hosting areas will be impacted.” REGIONAL REFUGEE & RESILIENCE PLAN 2015-16: TURKEY at 3, 

https://undg.org/wp-content/uploads/2015/11/3RP-Report-Turkey1.pdf (last visited Jan. 6, 2016), archived at

https://perma.cc/3SGW-2H34. 

8 Turkey Ranks Bottom in Migrant Integration Report with Flow of Refugees, HÜRRIYET DAILY NEWS (June 23, 

2015), http://www.hurriyetdailynews.com/turkey-ranks-bottom-in-migrant-integration-report-with-flow-ofrefugees.aspx?pageID=238&nID=84424&NewsCatID=339, archived at https://perma.cc/3YCY-ET74 (citing 

THOMAS HUDDLESTON ET AL., MIGRATION INTEGRATION POLICY INDEX 2015 at 208–11 (2015), http://mipex.eu/ 

sites/default/files/downloads/files/mipex-2015-book-a5.pdf, archived at https://perma.cc/3Q5T-6XVC). 
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against discrimination because a dedicated anti-discrimination law and agency are still lacking 

and pending approval by Parliament.”9

 

Moreover, the European Union is pressuring Turkey to control the number of refugees flowing to 

Europe. European Commissioner Johannes Hahn, reportedly frustrated by the continued 

streaming of refugees into Greece despite a November 2015 European Union-Turkey agreement 

to stem the flow (see discussion below), asserted that Turkey must produce results before the 

February 18–19, 2016, summit of EU leaders, stating that, despite the action plan having been 

agreed upon more than two months earlier, “we are still not seeing a significant decline in the 

number of migrants.”10 

II. Some Major Laws and Policies Applicable to Refugees11

A. Law on Settlement 

Between 1934 and 2006, Turkey’s Law on Settlement, Law No. 2510, regulated the formal 

settlement of foreigners in Turkey, “[restricting] the right of asylum and immigration only to the 

persons of ‘Turkish descent and culture.’ ”12 When a new Law on Settlement was adopted in 

2006, the emphasis on that background was retained, and so “it is understood that in Turkey, the 

channel of facilitated formal settlement, which also leads to citizenship in a short period of time, 

is still reserved for the individuals of such groups.”13 

B. Law on Foreigners and International Protection 

It was not until the 1950s, when Turkey joined the newly created UN Convention Relating to the 

Status of Refugees (it also subsequently adopted the Convention’s 1967 Protocol), that Turkey 

had any specific legislation on migration management other than the Settlement Law of 1934.14 

In 1999, Turkey reached a turning point in its bid for accession to the European Union, and 

 

9

 HUDDLESTON ET AL., supra note 8, at 210. 

10 Robin Emmott, Turkey Must Cut Migrant Flows to Europe, Top EU Official Says, REUTERS (Feb. 6, 2016), 

http://www.reuters.com/article/us-europe-migrants-turkey-eu-idUSKCN0VF0IU, archived at https://perma.cc/AP4C 

-4DJB. 

11 For a complete list of applicable laws, regulations, and decrees, see OKTAY DURUKAN ET AL., COUNTRY REPORT:

TURKEY 11–13 (Asylum Information Database May 18, 2015), http://www.asylumineurope.org/sites/default/ 

files/report-download/aida_turkey_final.pdf, archived at https://perma.cc/HR7C-VZCR. This report is a 

comprehensive study of asylum in Turkey; page 12 contains a flow chart of asylum procedures. 

12 N. Aslı Şirin Öner & Deniz Genç, Continuity or Change in Turkey’s Mass Migration Policy: From 1989 Émigrés 

to Syrian “Guests,” in TURKISH MIGRATION CONFERENCE 2015 SELECTED PROCEEDINGS 26 (Transnational Press 

London 2015). 

13 Id. (citing İskan Kanunu [Settlement Law], Law No. 5543, Sept. 19, 2006, as last amended Apr. 23, 2015, 

http://www.mevzuat.gov.tr/MevzuatMetin/1.5.5543.pdf, archived at https://perma.cc/D89G-GT6N and İskan 

Kanunu Uygulama Yönetmeliği [Implementation Regulations of the Settlement Law], Dec. 2, 2007, as last amended

Jan. 10, 2015, 

http://www.mevzuat.gov.tr/Metin.Aspx?MevzuatKod=7.5.11748&MevzuatIliski=0&sourceXmlSearch, archived at

https://perma.cc/N8XR-2L9F). 

14 Id. 
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thereafter it began to introduce a new policies and laws, among them the 2005 National Action 

Plan for Adoption of Acquis on Asylum and Migration, aimed at modernizing the country’s legal 

structure on migration.15 In April 2013, the Law on Foreigners and International Protection 

(LFIP), “the first inclusive and updated act about migration-related issues,” was adopted; it 

became effective in April 2014.16 The purpose of the LFIP is to 

regulate the principles and procedures with regard to foreigners’ entry into, stay in and 

exit from Turkey, and the scope and implementation of the protection to be provided for 

foreigners who seek protection from Turkey, and the establishment, duties, mandate and 

responsibilities of the Directorate General of Migration Management under the Ministry 

of Interior.17

C. Temporary Protection Regulation 

On October 22, 2014, the Temporary Protection Regulation was issued. It pertains to, among 

other matters, 

temporary protection proceedings that may be provided to foreigners, who were forced to 

leave their countries and are unable to return to the countries they left and arrived at or 

crossed our borders in masses to seek urgent and temporary protection and whose 

international protection requests cannot be taken under individual assessment.18

D. Law on Work Permits for Foreigners 

The Law on Work Permits of Foreigners prescribes that the Ministry of Labour and Social 

Security is to make a final decision on a foreigner’s application for a work permit within thirty 

days.19 If the decision is negative, the applicant can appeal it within thirty days to an 

administrative court.20 To access the labor market, the asylum seeker and the prospective 

employer must jointly file the papers for the work permit.21 Restrictions may apply, however, 

 

15 Öner & Genç, supra note 12, at 27. 

16 Id.; Yabancilar ve Uluslararasi Koruma Kanunu [Law on Foreigners and International Protection], Apr. 4, 2013 

(most provisions in force on Apr. 11, 2014), RESMÎ GAZETE [OFFICIAL GAZETTE], No. 28615 (Apr. 11, 2013), 

http://www.mevzuat.gov.tr/MevzuatMetin/1.5.6458.pdf, archived at https://perma.cc/RQ3R-EWCV; Law on 

Foreigners and International Protection (LFIP), Law No. 6458, art. 1(1), Apr. 4, 2013 (REPUBLIC OF TURKEY,

MINISTRY OF INTERIOR, DIRECTORATE GENERAL OF MIGRATION MANAGEMENT, Apr. 2014), http://www.goc.gov.tr/ 

files/files/eng_minikanun_5_son.pdf, archived at https://perma.cc/9VPV-GWYZ (unofficial English translation). 

17 LFIP art. 1(1). 

18 Geçici Koruma Yönetmeliği [Temporary Protection Regulation], Oct. 22, 2014, http://www.goc.gov.tr/files/files/ 

20141022-15-1.pdf, archived at https://perma.cc/H8PQ-QUQL, English translation available at http://www.goc. 

gov.tr/files/files/temptemp.pdf, archived at https://perma.cc/9V29-HQZ5. 

19 Yabancıların Çalışma İzinleri Hakkında Kanun [Law on Work Permits for Foreigners], Law No. 4817, art. 12, 

Feb. 27, 2003, as last amended May 21, 2015, RESMÎ GAZETE, No. 25040 (Mar. 6, 2003), 

http://www.mevzuat.gov.tr/ MevzuatMetin/1.5.4817.pdf, archived at https://perma.cc/VE6F-G386; Law on the 

Work Permits for Foreigners (LWPF), Law No. 4817, Feb. 27, 2003, as amended through Apr. 21, 2015, available 

at http://turkishlaborlaw.com/work-permits-in-turkey/work-permit-law, archived at https://perma.cc/67T3-PKJL. 

20 LWPF art. 17. 

21 DURUKAN ET AL., supra note 11, at 84. 
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for a certain period, “where the situation of the labour market and developments in the working 

life as well as sectoral and economic conditions necessitate,” or to certain sectors or 

administrative/geographic areas.22 The Ministry of Labour and Social Security decides whether 

or not to approve work permit applications on the basis of certain “evaluation criteria,” e.g., “for 

a work place to be eligible for hiring a foreign national, at least five Turkish citizens must be 

employed at the same work place. For every additional foreign national to be hired, the work 

place is obliged to demonstrate another 5 Turkish employees.”23 

E. EU/Turkey 2015 Joint Action Plan 

On November 29, 2015, the European Union and Turkey signed an agreement under which the 

EU will give Turkey €3 billion (about US$3.25 billion) to manage the refugee crisis in the 

country, aimed at the 2.2 million Syrian refugees and 300,000 Iraqis, and to prevent their 

reaching EU countries. Under the Joint Action Plan, “Turkey will be in charge of sea patrols and 

enforce border restrictions to manage the flow of refugees to Europe[,] . . . combat human 

trafficking and passport forgeries, and return refugees to their countries of origin if they do not 

meet refugee requirements” thereby becoming a “ ‘wall of defense’ against the flood 

of refugees.”24 

On February 10, 2016, the European Commission published a report on Turkey’s progress in 

implementing the agreement.25 Among the conclusions and recommendations are that Turkey 

needs to “make significant progress in preventing irregular departures of migrants and refugees 

from its territory”; take urgent action to align their visa policy with that of the EU, “prioritising 

those countries that are a source of irregular migration to the EU”; align its draft law on personal 

data protection with European standards and swiftly adopt it to allow closer operational 

cooperation between Turkey and Europol, Eurojust, and law enforcement agencies of EU 

Member States; step up bilateral cooperation with Greece in border surveillance, anti-migrantsmuggling efforts, and implementation of bilateral readmission obligations; and strengthen 

 

22 Id.; LWPF art. 11. 

23 DURUKAN ET AL., supra note 11, at 84; Yabancıların Çalışma İzinleri Hakkındaki Kanunun Uygulama 

Yönetmeliği [Implementation Regulation of the Law on Work Permits for Foreigners] art. 13, Aug. 29, 2003, as 

amended, 

http://mevzuat.basbakanlik.gov.tr/Metin.Aspx?MevzuatKod=7.5.6244&MevzuatIliski=0&sourceXmlSearch 

=yabanc%C4%B1lar%C4%B1n%20%C3%A7al%C4%B1%C5%9Fma, archived at https://perma.cc/95XS-NR7J. 

24 Repercussions of Euro-Turkey Refugee Deal, THE REGIONAL CENTER FOR STRATEGIC STUDIES, CAIRO (Dec. 10, 

2015), http://www.rcssmideast.org/en/Article/551/Repercussions-of-Euro-Turkey-Refugee-Deal#.VqgNPChyHdk, 

archived at https://perma.cc/CMJ3-PK92; see also Press Release, European Commission, EU-Turkey Cooperation: 

A €3 Billion Refugee Facility for Turkey (Nov. 24, 2015), http://europa.eu/rapid/press-release_IP-15-6162_en.htm, 

archived at https://perma.cc/3Y6L-UD3K; EU-Turkey Joint Action Plant, EUROPEAN COMMISSION, http://europa.eu/ 

rapid/press-release_MEMO-15-5860_en.htm (last updated Oct. 22, 2015), archived at https://perma.cc/FS5DAMB5. 

25 Annex to the Communication from the Commission to the European Parliament and the Council on the State of 

Play of Implementation of the Priority Actions Under the European Agenda on Migration: EU-Turkey Joint Action 

Plan – Implementation Report COM (2016) 85 final (Feb. 10, 2016), http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/european-agenda-migration/proposal-implementation-package/docs/managing_the_refugee_crisis_ 

state_of_play_20160210_annex_01_en.pdf, archived at https://perma.cc/AW37-8TCA. 
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actions against human smuggling in coastal areas.26 For its part, the EU, based on the agreement 

on the Facility for Refugees in Turkey, must begin as soon as possible to deliver assistance and 

address the needs of refugees under the agreement. Moreover, the Commission and Turkey 

should be ready to reprioritize the existing assistance programs to Turkey “to respond rapidly to 

newly emerging needs” in the area of migration.27 

III. Rules for Admission of Refugees and Handling Refugee Claims 

Although Turkey is a signatory to the 1951 Convention Relating to the Status of Refugees and its 

1967 Protocol,28 its instrument of accession stipulates that the Turkish government will maintain 

a geographic limitation pursuant to the Convention’s article 1b, limiting the scope of the 

Convention’s application in Turkey “only to persons who have become refugees as a result of 

events occurring in Europe.”29 Therefore, as one scholar has pointed out, “Turkey can only 

legally accept European asylum seekers as ‘refugees’ stricto sensu,” even though “the majority 

of asylum seekers in Turkey originate from non-European states, notably from Iraq, Iran, 

Afghanistan, Somalia and Sudan.”30 In practice, the geographic limitation is only partially 

implemented because 

. . . Turkey allows the . . . (UNHCR) to operate and conduct refugee status determination 

[RSD] procedures whereby refugee status is jointly granted by the UNHCR and the 

Ministry of Interior with the underlying condition that accepted refugees do not locally 

integrate but instead resettle in a third country. Considering its geographical proximity to 

conflict-ridden states, Turkey’s geographical limitation disqualifies a vast number of 

asylum seekers and refugees seeking permanent protection from the Turkish state.31

 

26 Id. at 10. 

27 Id. The sectors identified as priority sectors for financial assistance to the refugees include “humanitarian aid, 

education, labour market integration, health care and social inclusion, municipal infrastructure and the management 

of refugee flows.” See also Press Release, European Commission, Managing the Refugee Crisis: Commission 

Reports on Implementation of EU-Turkey Joint Action Plan (Feb. 10, 2016), http://europa.eu/rapid/press-release_IP16-268_en.htm, archived at https://perma.cc/9FDP-2CHE. 

28 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, 150, https://treaties.un.org/doc/ 

Publication/UNTS/Volume%20189/v189.pdf, archived at https://perma.cc/3ZQ2-8L3V; Protocol Relating to the 

Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, 268, https://treaties.un.org/doc/Publication/UNTS/Volume 

%20606/v606.pdf, archived at https://perma.cc/MM53-ARP9. Turkey signed the Convention on August 24, 1951, 

and ratified it on March 30, 1962, Status As At: 22-02-2016,Convention Relating to the Status of Refugees, UN

TREATY COLLECTION (UNTC), https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V2&chapter=5&Temp=mtdsg2&lang=en, archived at https://perma.cc/4QH6-E8G4, and acceded to the Protocol on 

July 31, 1968. Status as at 22-02-2016, Protocol Relating to the Status of Refugees, UNTC, https://treaties.un.org/ 

pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-5&chapter=5&lang=en, archived at https://perma.cc/26SR5SLA. 

29 See UNTC status pages, supra note 28, under “Declarations and Reservations.” 

30 Cavidan Soykan, The New Draft Law on Foreigners and International Protection in Turkey, 2:2 OXFORD 

MONITOR OF FORCED MIGRATION 38, 38–39 (Nov. 2012), http://oxmofm.com/wp-content/uploads/2012/11/ 

Cavidan-FINAL.pdf, archived at https://perma.cc/9LLY-96PC. Soykan adds that “only three other states . . . opted 

for this geographical limitation apart from Turkey: Congo, Madagascar and Monaco.” Id. at 38 n.3. 

31 İçduygu, supra note 1, at 7. According to the UNHCR, “refugee status determination” (RSD) is “the legal or 

administrative process by which governments or UNHCR determine whether a person seeking international 

protection is considered a refugee under international, regional or national law.” Refugee Status Determination, 
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In accordance with the LFIP, Turkey grants non-European refugees limited protection under one 

of several types of temporary status—“conditional refugee status, humanitarian residence permit, 

or temporary protection” (see also “Definition of Refugees” discussion, below)—allowing them 

to stay in the country until a long-term place of settlement outside Turkey is found for them.32 

Thus, in general, asylum-seekers apply to the Directorate General for Migration Management for 

protection, but “[d]epending on their circumstances and country of origin, they may be eligible to 

apply to the UNHCR” to attain refugee status.33

More recently, Syrians have been placed as a group under temporary protection status, while 

non-Syrian, non-European applicants may apply to the UNHCR for RSD procedures to be 

carried out. If an applicant is deemed to be a refugee according to the UNHCR’s mandate, the 

UNHCR will attempt to resettle the person or family in a third country; the process may take 

years, however, because the UNHCR is not equipped to handle the current numbers of asylumseekers in Turkey.34 

A. Definition of Refugees 

A refugee is defined under the LFIP as follows: 

A person who as a result of events occurring in European countries and owing to wellfounded 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 citizenship and 

is unable or, owing to such fear, is unwilling to avail himself or herself of the protection 

of that country; or who, not having a nationality and being outside the country of his 

former residence as a result of such events, is unable or, owing to such fear, is unwilling 

to return to it, shall be granted refugee status upon completion of the refugee status 

determination process.35

The LFIP also provides international protection to “conditional refugees”—persons who are 

unable or unwilling to return to the country of their former residence based on the same grounds 

as refugees but as a result of events occurring outside European countries. Conditional refugee 

status is granted upon completion of the refugee status determination process, and those granted 

such status are permitted to reside in Turkey temporarily until they are resettled in a 

third country.36

Finally, subsidiary protection is granted, upon completion of status determination procedures, to 

a foreigner or stateless person who cannot qualify as either a refugee or a conditional refugee, if 

 UNHCR, http://www.unhcr.org/pages/4a16b1d06.html (last visited Jan. 27, 2016), archived at https://perma.cc/ 

BH7E-A3ML. 

32 Refugees & Asylum in Turkey, REFUGEE SOLIDARITY NETWORK, http://www.refugeesolidaritynetwork.org/learnmore/turkey-asylum-basics (last visited Jan. 27, 2016), archived at https://perma.cc/PL5L-FHCE. 

33 Id. 

34 Id. 

35 Id. art. 61(1). 

36 Id. art. 62(1). 
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return to the country of origin or country of former habitual residence would have certain dire 

consequences, such as imposition of the death penalty, torture, or a serious threat of 

indiscriminate violence due to armed conflict.37

Designating an individual as being under subsidiary protection “represents a shift away from 

prior policy, which classified those who did not qualify for refugee status simply as guests—the 

designation [that] early flows of Syrians received.”38 Now, most Syrians classified as refugees 

by the UNHCR fall under the subsidiary protection status created in the LFIP.39 The relevant 

provision, article 91, states as follows: 

(1) Temporary protection may be provided for foreigners who have been forced to leave 

their country, cannot return to the country that they have left, and have arrived at or 

crossed the borders of Turkey in a mass influx situation seeking immediate and 

temporary protection. 

(2) The actions to be carried out for the reception of such foreigners into Turkey; their 

stay in Turkey and rights and obligations; their exit from Turkey; measures to be 

taken to prevent mass influxes; cooperation and coordination among national and 

international institutions and organisations; determination of the duties and mandate 

of the central and provincial institutions and organisations shall be stipulated in a 

Directive to be issued by the Council of Ministers.40

B. Administration of the Law Related to Foreigners and Refugees 

With the entry into force of the LFIP in April 2014, the Directorate General of Migration 

Management (DGMM) under the Ministry of Interior “has become the sole institution 

responsible for asylum matters. While Turkey still maintains the geographical limitation to the 

1951 Convention, the law provides protection and assistance for asylum-seekers and refugees, 

regardless of their country of origin.”41 It was not until May 18, 2015, that the DGMM took over 

provincial migration management duties in all eighty-one provinces from the Turkish National 

Police.42 Before the adoption of the LFIP, all matters related to foreigners, including the 

processes for determining the status of asylum applications, were handled by these police, who 

are under the Department of Foreigners, Borders and Asylum under the Directorate of General 

 

37 Id. art. 63(1). 

38 Rebecca Kilberg, Turkey’s Evolving Migration Identity, MIGRATION POLICY INSTITUTE (July 24, 2014), 

http://www.migrationpolicy.org/article/turkeys-evolving-migration-identity, archived at https://perma.cc/8G7G9LL8. 

39 Id. 

40 LFIP art. 91. 

41 UNHCR, supra note 4. 

42 Provincial Directorates of Migration Management Has [sic] Become Operational, ADANA BTU, http://iso.adana 

btu.edu.tr/eng/HaberDetay.Aspx?id=30041 (last visited Feb. 22, 2016), archived at https://perma.cc/XU8T-DYZG; 

Elif Nur Çakır & Nuri Bodur, New Resident Permit Application Process in Turkey, 28(3) GLOBAL EMPLOYER:

GLOBAL IMMIGR. & MOBILITY Q. UPDATE (Baker & McKenzie, Sept. 2015), http://bakerxchange.com/rv/ff0023 

b9fd7f1759f4025bb7eb428b3828da0e9b, archived at https://perma.cc/E3KB-RT5X. 
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Security of the Ministry of Interior.43 Particulars of the DGMM are covered under Part Five 

of the LFIP. 

C. Adjustments to Refugee Handling Procedure Due to Refugee Crisis 

As a result of the limitation clause in Turkey’s instrument of accession to the UN Convention on 

Refugees, Syrian migrants in Turkey cannot register with the Turkish government as refugees, 

nor are they being registered and given the option to go through a UNHCR RSD process “due to 

the enormity of the caseload.”44 Before the implementation of the LFIP, protection afforded to 

Syrians fleeing to Turkey “was in the form of an ad hoc solution.”45 With the Law’s entry into 

force, Syrian nationals apply to the Turkish government for temporary protection and, “[b]ased 

on vulnerabilities and other criteria, Syrians may be referred by the government for resettlement 

to a third country.”46 The Temporary Protection Regulation was issued on October 22, 2014, in 

conformity with article 91 of the LFIP. It does not specifically mention refugees from Syria or 

Iraq; rather it pertains to, among other matters, 

temporary protection proceedings that may be provided to foreigners, who were forced to 

leave their countries and are unable to return to the countries they left and arrived at or 

crossed our borders in masses to seek urgent and temporary protection and whose 

international protection requests cannot be taken under individual assessment . . . .47

IV. Border Processing of Refugees 

The provisions of the LFIP apply to foreigners’ activities and actions and to (1) the international 

protection to be afforded them in cases of individual protection claims made at borders, 

designated border crossing points (“border gates”), or within Turkey; (2) “the immediate 

temporary protection to be provided to foreigners in cases when there is a large influx into 

Turkey and where they cannot return back to the country they were forced to leave”; and (3) “the 

structure, duties, mandate and responsibilities of the Directorate General of Migration 

Management.”48 At the same time, the Law states that it will “be implemented without prejudice 

to provisions of international agreements to which Turkey is party to and specific laws.”49 

In general, entry into and exit from Turkey is through the border gates, and foreigners must 

submit a valid passport or travel document to the border officials at the time of entry or exit.50 

Border-crossing document checks can also be carried out on vehicles en route to Turkey or in 

 

43 Öner & Genç, supra note 12, at 28. 

44 İçduygu, supra note 1, at 7. 

45 Öner & Genç, supra note 12, at 35. 

46 REFUGEE SOLIDARITY NETWORK, supra note 32. 

47 Temporary Protection Regulation art. 1(1). 

48 LFIP art. 2(1). 

49 Id. art. 2(2). 

50 Id. arts. 5(1) & 6(1). 
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transit areas at airports.51 Checks will be conducted at the time of entry to determine whether or 

not the foreigner falls within the scope of persons who are to be refused entry.52 Such persons 

include those who do not hold a passport, travel document, visa, or residence or work permit or 

whose documents or permits have been obtained deceptively or are false.53

If a comprehensive check of a foreigner is required, the person may only be held for a maximum 

of four hours, during which time he or she may either return to his/her country at any time or 

wait for the completion of the admission process (which is not limited to the four-hour period). 

The principles and procedures governing comprehensive checks are to be set forth in a 

Directive.54 The LFIP states, however, that the abovementioned conditions “shall not be 

construed and implemented to prevent the international protection claim.”55 

V. Steps Taken to Determine Entitlement to Refugee Status/Protection 

A. Filing 

Applicants for international protection must file an application in person with the relevant 

governorate (provincial administration), which carries out the actions related to the application; 

if an application is lodged with law enforcement units at the border gates or within the country, it 

will immediately be reported to the governorate.56 While every foreigner or stateless person has 

the right to apply on his/her own behalf, an applicant may also apply on behalf of accompanying 

family members seeking protection on the same grounds.57 

In the case of international protection claims lodged by unaccompanied children, the best interest 

of the child will be the primary consideration in all actions related to such children, and as of the 

date the application is received, the provisions of Turkey’s Child Protection Law will apply.58

Person with special needs are to be given priority with respect to the rights and actions set forth 

in the LFIP regarding international protection.59

 

 

51 Id. art. 6(2) & (3). 

52 Id. art. 6(4). 

53 Id. art. 7(1)(a). 

54 Id. art. 6(5). 

55 Id. art. 8(1). 

56 Id. art. 65(1) & 2. 

57 Id. art. 65(3). The consent of adult family members is required in cases where an application is made on 

their behalf. 

58 Id. art. 66(1)(a). Juvenile Protection Law, Law No. 5395, July 3, 2005, available at http://www.lawsturkey.com/ 

law/juvenile-protection-law-5395 (unofficial English translation), archived at https://perma.cc/76CF-98M9; Çocuk 

Koruma Kanunu [Child Protection Law], July 3, 2005 (most provisions in force on July 15, 2005), http://www. 

mevzuat.gov.tr/MevzuatMetin/1.5.5395.pdf, archived at https://perma.cc/P3BD-NDZK. 

59 LFIP art. 67(1). 
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The LFIP also states that applicants for international protection “shall not be subject to 

administrative detention solely for lodging an international protection claim,”60 and that 

imposition of administrative detention “is an exceptional action.61

B. Registration and Control 

On May 18, 2015, the DGMM launched its registration database, GOC-NET, “a platform for 

streamlining all refugees and asylum-seekers into a national database system.”62 As of October 

1, 2015, Turkey had registered 2,072,290 Syrian refugees.63

The governorates must register all international protection applications.64 The applicant has the 

obligation to report identity information truthfully; the applicant should also submit 

identification and travel documents to the competent authorities at the time of registration if such 

documents are available. To that end, a search may be conducted of the applicant and his/her 

belongings.65 If at the time of registration there is no documentation on the applicant’s identity, 

the determination of identity will be made based on information obtained from the comparison of 

personal data and from investigation.66 

At the time of registration, the authorities are also to take information about applicants’ reasons 

for leaving their country of origin/former habitual residence; their post-departure experiences 

and events that led to their filing the application; and “their way, means of transportation and 

routes of entering Turkey.”67 If applicants previously applied for or are beneficiaries of 

international protection in another country, information and documentation regarding their 

application or protection status will also be taken.68 

 

 

60 Id. art. 68(1). 

61 Id. art. 68(2). Under LFIP, administrative detention may be applied to determine the person’s identity or 

nationality if “there is serious doubt as to the accuracy of the information provided”; to bar entry if the terms of 

entry at the border gates have been breached; if the elements of the grounds for the application cannot be identified 

unless the person is subject to the detention; or if the person poses a serious threat to public order or security. Id. art. 

68(2)(a)–(ç). 

62 Moreover, “3RP partners provided extensive financial and technical support to strengthen the registration capacity 

of the Government.” REGIONAL REFUGEE & RESILIENCE PLAN 2016-2017 IN RESPONSE TO THE SYRIA CRISIS:

TURKEY, at 6, http://www.3rpsyriacrisis.org/wp-content/uploads/2015/12/Turkey-2016-Regional-RefugeeResilience-Plan.pdf, archived at https://perma.cc/RVY4-K449. “The 2016–2017 3RP brings together more than 200 

partners in a coordinated region-wide response to the Syria crisis.” 3RP: A Strategic Shift, REGIONAL REFUGEE &

RESILIENCE PLAN 2016-17, http://www.3rpsyriacrisis.org/the-3rp (last visited Jan. 29, 2016), archived at

https://perma.cc/Q7SD-BD5H. 

63 REGIONAL REFUGEE & RESILIENCE PLAN 2016-2017 IN RESPONSE TO THE SYRIA CRISIS: TURKEY, supra note 62, 

at 6. 

64 LFIP art. 69(1). 

65 Id. art. 69(2). 

66 Id. art. 69(3). 

67 Id. art. 69(4). 

68 Id. 
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Applicants are informed at the time of registration of the time and place of their interview for 

determining their status.69 If an applicant has been assessed as posing a public health threat, he 

or she will undergo medical screening.70 Applicants are also to be given information about the 

application procedures that will be followed; about applicant rights and obligations and how to 

comply with them, and the possible consequences of failure to comply or to cooperate with the 

authorities; and about appeal procedures and time limits.71

Upon registration, applicants are issued, without paying a fee, a registration document valid for 

thirty days that contains identity information and indicates that the holder has applied for 

international protection. If necessary, the document can be extended by additional thirty-day 

validity periods. The registration document enables the holder to stay in Turkey.72

C. Grounds for Exclusion from International Protection

An applicant will be excluded from international protection if he or she is “receiving protection 

from organs or agencies of the United Nations” other than the UNHCR; if he or she is 

recognized by the former country of residence as having the rights and obligations attached to 

that country’s nationals; or if “there is strong evidence to believe that they are guilty of offenses” 

set forth in article 1F of the Convention Relating to the Status of Refugees.73 Those offenses 

include “a crime against peace, a war crime, or a crime against humanity . . . ; a serious nonpolitical crime outside the country of refuge prior to his admission to that country as a refugee; 

. . . [and] acts contrary to the purposes and principles of the United Nations.”74

D. Inadmissible Applications and Withdrawal of Applications 

The LFIP sets forth three types of grounds on which applications for international protection may 

be deemed inadmissible, including if the applicant repeats the same application without 

providing a different reason, separately makes an application without a well-founded reason, or 

has arrived in Turkey from a country that was the applicant’s first country of asylum or a safe 

third country for the applicant.75 Upon any of these circumstances becoming known during any 

stage of assessment of the application, the assessment will be terminated, and the party 

concerned or his/her lawyer or legal representative will be notified of the decision on the 

inadmissibility of the application.76

 

 

69 Id. art. 69(5). 

70 Id. art. 69(6). 

71 Id. art. 70(1). 

72 Id. art. 69(7). 

73 Id. art. 65(1)(a–c). 

74 Convention Relating to the Status of Refugees, supra note 28, art. 1F. 

75 LFIP art. 72(1). 

76 Id. art. 72(2) & (3). 
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E. Interview 

Applicants are given in-person interviews “within thirty days from the date of registration, with a 

view to reach[ing] an effective and fair decision.”77 The applicant must cooperate in providing 

the officials with all information and documents that support the protection application.78 After 

each interview, an interview report is to be drafted and a copy is to be given to the interviewee.79

F. Identity Document 

Upon completion of the interview, the authorities issue the applicant and any accompanying 

family members an International Protection Applicant Identity Document. Valid for six months, 

it indicates the international protection application and bears the holder’s alien identification 

number. The period of validity of the identity documents for applicants whose application 

assessment could not be finalized will be extended for an additional six months.80 The identity 

document serves as a substitute for a residence permit and is not subject to a fee.81 

G. Decision 

The assessment of an application is to be finalized within six months of the date of its 

registration by the Directorate General; the applicant will be informed if a decision cannot be 

reached within that period.82 Decisions are made on an individual basis; however, an application 

lodged on behalf of a family will be evaluated as a single application, with the decision 

applicable to the whole family, with the proviso that exclusion of the applicant from international 

protection will not require the exclusion of the family members as long as none of the reasons for 

exclusion applies to them.83 

In making the decision, the authorities take into consideration “the personal circumstances of the 

applicant and current general conditions in the country of origin . . . or former . . . residence.”84 

A decision may be made that the applicant does not need international protection if he or she can 

be given protection “against the threat of persecution or serious harm in a certain region of the 

country of citizenship or former residence, and if the applicant is in a condition to safely travel to 

and settle in that region of the country,”85 but the emergence of such circumstances will not 

prevent the application from being fully assessed.86 

 

77 Id. art. 75(1). 

78 Id. art. 75(2). 

79 Id. art. 75(6). 

80 Id. art. 76(1). 

81 Id. art. 76(4). 

82 Id. art. 78(1). 

83 Id. arts. 78(2) & 64(6). 

84 Id. art. 78(3). 

85 Id. art. 78(4). 

86 Id. art. 78(5). 
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H. Accelerated Procedure for Possible Disqualification 

The LFIP lists a number of cases in which an application will be evaluated under an accelerated 

procedure because the applicant has taken certain actions that may negatively affect the 

application—namely, where the applicant 

a) has never mentioned elements that would require international protection when 

presenting reasons while lodging the application; 

b) misled the authorities by presenting untrue or misguiding information or documents 

or, by withholding information or documents that might negatively impact 

the decision; 

c) has destroyed or disposed of identity or travel documents in bad faith in order to 

make determination of identity or citizenship difficult; 

ç) has been placed under administrative detention pending removal; 

d) has applied solely to postpone or prevent the implementation of a decision that would 

lead to his/her removal from Turkey; 

e) pose[sic] a public order or public security threat or, has previously been removed 

from Turkey on such grounds; [or] 

f) repeats the application after the [initial] application is considered to have 

been withdrawn.87

An applicant undergoing the evaluation of his/her application under an accelerated procedure is 

to be interviewed “no later than three days as of the date of application,” and the application 

assessment is to be completed “no later than five days after the interview.”88 If a longer period is 

required to assess the application, it may be taken out of the accelerated procedure.89 The 

accelerated procedure is not used to evaluate applications lodged by unaccompanied children.90

I. Review and Appeal 

The LFIP provides for administrative review and judicial appeal of asylum decisions.91 

Applicants and beneficiaries of international protection may be represented by a lawyer for 

activities and actions related to international protection, if they pay for such representation; if the 

applicant/beneficiary cannot afford the attorney fees for judicial appeals, legal assistance will be 

provided pursuant to Turkey’s law on lawyers.92

 

 

87 Id. art. 79(1). 

88 Id. art. 79(2). 

89 Id. art. 79(3). 

90 Id. art. 79(4). 

91 Id. art. 80(1). 

92 Id. art. 81(1) & (2). 
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VI. Accommodations and Assistance for Refugees 

A. Basic Needs 

Social assistance services and benefits are to be provided to applicants and international 

protection beneficiaries in need.93 As of March 2015, the Turkish Disaster and Emergency 

Management Authority of Turkey’s Prime Ministry, along with the Turkish Red Crescent, had 

established twenty-five Syrian refugee camps. These camps reportedly have markets, reliable 

heating, religious services, communications infrastructure, firefighting services, interpreters, 

psychosocial support, banking services, and cleaning services.”94 Camp residents are given three 

meals a day and also electronic cards that provide some money for personal needs.”95 An 

applicant for asylum who is found to be in need may also be provided an allowance.96

The relevant Turkish laws on social security and medical insurance97 apply to those applicants 

and international protection beneficiaries who are not covered by medical insurance and who do 

not have the means to afford medical services. To pay the premiums for medical insurance, 

funds are allocated to the DGMM budget, but those who receive coverage are asked to contribute 

in full or in part, in proportion to their financial means.98

The Ministry for Family and Social Policies places unaccompanied minors “in suitable 

accommodation facilities, in the care of their adult relatives or, a foster family, taking the opinion 

of the unaccompanied child into account.”99 If suitable conditions are available, minors over 

sixteen years of age may be placed in reception and accommodation centers.100 To the extent 

possible, siblings are to be placed together.101 “Victims of torture, sexual assault or, other 

serious psychological, physical or sexual violence” are to be given “adequate treatment. . . in 

order to eliminate the damage caused by such actions.”102 

 

 

93 Id. art. 89(2). 

94 Tülin Canbay, Public Services for Asylum Seekers in Turkey Within the Perspective of New Migratory 

Movements, in TURKISH MIGRATION CONFERENCE 2015 SELECTED PROCEEDINGS, supra note 12, at 2–3. 

95 Id. at 3. 

96 LFIP art. 89(5). Allowances are given with Ministry of Finance approval. Exceptions are applicants whose 

applications are deemed inadmissible or fall under the accelerated procedure (under articles 72 and 79). 

97 Social Insurance and Universal Health Insurance Law, Law No. 5510, May 31, 2006, as amended Apr. 17, 2008, 

available at http://turkishlaborlaw.com/images/turkish-social-security-law/social-security-law-5510.pdf, archived at

https://perma.cc/GAJ5-KQJ3, Turkish text as last amended effective Apr. 1, 2015 available at http://www.mevzuat. 

gov.tr/MevzuatMetin/1.5.5510.pdf, archived at https://perma.cc/5BA4-EG9B. 

98 LFIP art. 89(3)(a). The insurance is terminated for and reimbursement expected from persons found at a later date 

to have already had medical insurance coverage or the financial means for it or to have applied for asylum solely on 

the basis of obtaining it. Id. art. 89(3)(b). 

99 Id. art. 66(1)(b). 

100 Id. art. 66(1)(c). 

101 Id. art. 66(1)(ç). 

102 Id. art. 67(2). 
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B. Translation Services 

Upon request, applicants are provided with translation and/or interpretation services at each stage 

of the application process.103

C. ID Cards 

Persons granted refugee status are issued an identity document, valid for three years at a time, 

that bears their alien identification number.104 For persons granted conditional refugee or 

subsidiary protection status, the identity document issued has a one-year validity period.105 The 

identity documents of refugees and conditional refugees/subsidiary protection beneficiaries, 

which are issued without charge, substitute for a residence permit. The DGMM determines the 

format and content of these documents.106

D. Travel Documents 

In conformity with the Convention on Refugees, the Turkish governorates issue refugees a travel 

document.107 Requests for travel documents made by conditional refugees and subsidiary 

protection beneficiaries are evaluated within the scope of article 18 of the Passport Law, which 

addresses passports bearing the stamp “Exclusively for foreigners” (yabancılara mahsus).108

E. Education 

The LFIP provides that applicants and international protection beneficiaries and their family 

members are to have access to primary and secondary education.109 In September 2014 the 

Circular on Foreigners’ Access to Education (No. 2014/21) was adopted.110 The Circular and the 

 

103 Id. art. 70(2). 

104 Id. art. 83(1). 

105 Id. art. 83(2). 

106 Id. art. 83(3). 

107 Id. art. 84(1); Convention Relating to the Status of Refugees art. 28. Article 28(1) of the Convention states 

as follows: 

The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the 

purpose of travel outside their territory, unless compelling reasons of national security or public order 

otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such 

documents. The Contracting States may issue such a travel document to any other refugee in their territory; 

they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in 

their territory who are unable to obtain a travel document from the country of their lawful residence. 

108 LFIP art. 84(2); Passport Law, Law No. 5682, July 15, 1950, http://www.legislationline.org/documents/id/8984, 

archived at https://perma.cc/M5U4-NWJ6, Turkish text as last amended Sept. 11, 2014 available at http://www. 

mevzuat.gov.tr/MevzuatMetin/1.3.5682.pdf, archived at https://perma.cc/EED9-XY8H. A number of provisions 

were repealed in 2013. A clause of article 18 was amended on August 1, 2010. 

109 LFIP art. 89(1). 

110 Öner & Genç, supra note 12, at 34; General Directorate of Basic Education, Ministry of National Education, 

Genelge 2014/21 [Circular 2014/21], Sept. 23, 2014, available on the Antalya Provincial Directorate of National 
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Temporary Protection Regulation make registration with the Turkish authorities a prerequisite 

for access to education. Syrian refugee children must also provide “a residence permit, 

temporary protection identification or the Foreigners’ Identification Card” to enroll in a school; 

without such a document, the children may enroll as “guests.”111 

F. Work 

The LFIP provides that an applicant for asylum or a conditional refugee may apply for a work 

permit six months from the date of lodging a claim for international protection.112 Upon being 

granted the status of refugee or beneficiary of subsidiary protection, the individual “may work 

independently or be employed, without prejudice to the provisions stipulated in other legislation 

restricting foreigners to engage in certain jobs and professions”; the ID issued to the individual 

serves as his/her work permit and contains a written statement to that effect.113

The applicant or subsidiary protection beneficiary may have his access to the labor market 

restricted for a given period, if circumstances in the labor market or sectoral and economic 

conditions necessitate it. Such restrictions do not apply, however, to refugees and subsidiary 

protection beneficiaries “who have been residing in Turkey for three years; are married to 

Turkish citizens; or, have children with Turkish citizenship.”114

On January 16, 2015, the Regulation on Work Permits of Refugees Under Temporary Protection 

was published in Turkey’s Official Gazette, providing for such refugees, referred to in article 91 

of the LFIP and article 7 of the Regulation on Temporary Protection, to be granted work permits 

under certain conditions and with certain restrictions.115 The Regulation disallows foreigners 

under temporary protection from working independently or being employed without a legally 

issued work permit and establishes penalties in the form of administrative fines prescribed under 

the Law on Work Permits for Foreigners, the law on the basis of which the Regulation was 

issued, for violation of this rule.116 Foreigners under temporary protection can apply to the 

Ministry of Labour and Social Security for a work permit six months from the date on which 

they registered as being under temporary protection status. At the workplace for which the work 

permit is requested, the number of temporary protection workers cannot exceed 10% of the 

 Education website, at http://antalya.meb.gov.tr/meb_iys_dosyalar/2014_10/02015212_yabanc.pdf (in Turkish), 

archived at https://perma.cc/7RD4-67KL. 

111 Öner & Genç, supra note 12, at 34. The authors point out, however, that “there are several problems in schooling 

of the Syrian children in Turkey. The main one is the language barrier.” Id. at 34. 

112 LFIP art. 89(4)(a). 

113 Id. art. 89(4)(b). 

114 Id. art. 89(4)(c). 

115 Turkey Grants Work Permit for Syrian Refugees, TURKISH LABOR LAW (Jan. 19, 2016), http://turkishlaborlaw. 

com/news/legal-news/362-turkey-grants-work-permit-for-syrian-refugees, archived at https://perma.cc/Y5U3-

6CRV; Geçici Koruma Sağlanan Yabancıların Çalışma İzinlerine dair Yönetmelik [Regulation on Work Permits of 

Refugees Under Temporary Protection] (Foreign Work Permit Regulation), RESMÎ GAZETE, No. 29594 (Jan. 15, 

2016) (Council of Ministers Decision No. 2016/8375 of Jan. 11, 2016), http://www.mevzuat.gov.tr/Mevzuat 

Metin/3.5.20168375.pdf, archived at https://perma.cc/G5B2-ECJ2. 

116 TURKISH LABOR LAW, supra note 115; Law on Work Permits for Foreigners art. 21. 
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Turkish citizens employed, but if the employer proves that there is no qualified Turkish citizen in 

the province who can perform the job being done by the foreign worker, the employment quota 

may not be applied.117 Foreigners under temporary protection cannot be paid less than the 

minimum wage.118 

The Ministry’s General Director of Labor, Nurcan Önder, in discussing new regulations for work 

permits in the country, noted that most of the refugees “do not have an identity card. When we 

have a look at their professions, we see that 80 percent of these people’s professions are 

unknown. We have therefore accepted them [as] ‘unqualified.’ Only 3 percent of Syrian 

refugees in Turkey are part of the ‘qualified’ labor force . . . .”119

VII. Path to Naturalization for Entitled Refugees 

The Turkish Citizenship Law provides that an alien “can acquire Turkish citizenship by a 

decision of the competent authority provided that he/she fulfils the conditions laid down in this 

Law. However, fulfilment of the stipulated conditions does not grant that person an absolute 

right in the acquisition of citizenship.”120 Acquisition of Turkish citizenship by a decision of the 

competent authority can be carried out by several means, including naturalization or possession 

of exceptional status.121 The Law includes, in the category of acquisition based on exceptional 

status, persons recognized as immigrants.122 All individuals who are eligible for exceptional 

acquisition of citizenship can be naturalized without being subject to the five-year residency 

requirement; their applications will be accepted upon the proposal of the Ministry of Interior and 

the decision of the Council of Ministers.123 

VIII. Monitoring of Refugees 

The Turkish authorities may impose administrative obligations upon applicants for protection—

for example, insist that they “reside in the designated reception and accommodation centres, a 

specific location or a province” and that they “report to the authorities in the form and intervals 

 

117 TURKISH LABOR LAW, supra note 115; Foreign Work Permit Regulation art. 8. 

118 TURKISH LABOR LAW, supra note 115; Foreign Work Permit Regulation art. 10. 

119 Bülent Sarıoğlu, Only 3 Pct of Syrian Refugees in Turkey “Qualified” Labor: Ministry, HÜRRIYET DAILY NEWS

(Feb. 3, 2016), http://www.hurriyetdailynews.com/only-3-pct-of-syrian-refugees-in-turkey-qualified-labor-ministry. 

aspx?pageID=238&nID=94718&NewsCatID=347, archived at https://perma.cc/X8EZ-PFHJ. 

120 Türk Vatandaşliği Kanunu [Turkish Citizenship Law], No. 5901, May 29, 2009, as last amended May 18, 2012, 

art. 10, RESMÎ GAZETE, No. 27256 (June 12, 2009), http://www.nvi.gov.tr/Files/File/Mevzuat/Nufus_Mevzuati/ 

Kanun/pdf/turk_vatandasligi_kanunu.pdf, archived at http://perma.cc/HLB7-TA9V, English translation available at 

http://eudo-citizenship.eu/NationalDB/docs/TUR%20Turkish%20citizenship%20law%202009%20%28English%29. 

pdf, archived at https://perma.cc/PPS4 -BM3B. It seems that only article 28, on rights accorded to persons who lost 

Turkish citizenship through renunciation of it, was affected by the 2012 amendment, although article 28 was greatly 

expanded, from one clause to ten. 

121 Id. art. 12(1)(a). 

122 Id. art. 12(1)(b)–(c). 

123 Id. art. 12; ZEYNEP KADIRBEYOGLU, EUDO CITIZENSHIP OBSERVATORY: COUNTRY REPORT: TURKEY 13 (Nov. 

2012), http://eudo-citizenship.eu/docs/CountryReports/Turkey.pdf, archived at https://perma.cc/2GZH-623Y. 
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as requested.”124 Applicants must register with the address-based registration system, as was 

noted above, and report the address of their domicile to the governorate.125

The DGMM, for reasons of public security and public order, may also require conditional 

refugees and beneficiaries of subsidiary protection “to reside at a given province and report to 

authorities in accordance with determined procedures and periods,”126 and these persons, too, 

must register their address in the system and report the address to the governorate.127

IX. Termination or Cancellation of International Protection Status 

International protection status will be terminated if the beneficiaries 

a) voluntarily re-avail themselves of the protection in their country of citizenship; 

b) voluntarily regain the citizenship that they have been deprived of; 

c) acquired a new nationality, and enjoy the protection of the country of their 

new nationality; 

ç) voluntarily returned to the country from which they have fled or stayed outside of 

due to fear of persecution.128

In cases of voluntary return, the Turkish authorities provide material and financial support to the 

applicants and international protection beneficiaries, and the repatriation is carried out by the 

DGMM “in cooperation with international organisations, public institutions and agencies, and 

civil society organisations.”129 Subsidiary protection status is also terminated if the 

circumstances upon which it had been granted are no longer applicable “or have changed to an 

extent that the protection is no longer needed.”130 Termination of international protection status 

or subsidiary protection status may be reassessed, and the person concerned may be given the 

opportunity to present the reasons supporting its continuation.131 

International protection status may also be cancelled in cases where the beneficiaries presented 

false documents or used fraud, deceit, or withholding of facts to obtain the status, or where it is 

later determined that the beneficiaries should have been excluded on those grounds for exclusion 

cited above.132 

 

124 LFIP art. 71(1). 

125 Id. art. 71(2). 

126 Id. art. 82(1). 

127 Id. art. 82(2). 

128 Id. art. 85(1). 

129 Id. art. 87. 

130 Id. art. 85(3); see also art. 85(2). 

131 Id. art. 85(4). 

132 Id. art. 86(1). 
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United Kingdom 

Clare Feikert-Ahalt 

Senior Foreign Law Specialist

SUMMARY The UK has extensive provisions in place to provide protection to persons seeking asylum 

while protecting the public from individuals who may exploit the asylum system. The 

application process for asylum seekers starts at the border. A fast-track process has been 

developed to help reduce the extensive caseload of asylum cases, which allows certain 

applications to be rejected upon receipt if the individual is from a country deemed safe by 

the UK. For all other applicants, a decision is made on the well-established criteria of 

whether the individual has a well-founded fear of persecution or other harm. A new 

program has been introduced in response to the Syrian crisis, which accepts selected 

refugees from the Syrian region. 

I. Introduction 

The United Kingdom of Great Britain and Northern Ireland, consisting of England, Wales, 

Scotland, and Northern Ireland, has recently undergone a period of devolution with the creation 

of a Scottish Parliament, a Welsh Assembly, and a Northern Ireland Assembly (currently 

suspended) that can legislate in certain areas. Citizenship and nationality are not devolved areas, 

however, and thus remain the responsibility of the Parliament.1

 The Secretary of State for the 

Home Department (a member of the British executive branch) and his department, commonly 

referred to as the Home Office, has responsibility for almost all matters relating to immigration, 

including asylum, nationality, and border control laws.

Since 1891, the common law of the UK has provided that “no alien has any right to enter this 

country except by leave of the Crown.”2 The Aliens Restriction Act 1914,3 the Aliens 

Restriction (Amending) Act 1919,4

 and the Rules and Orders made under these Acts5 gave the 

common law rule a statutory basis and formed the restrictions on immigration. 

 

1

 “Nationality” refers to the status of those individuals who are British citizens, British subjects with the right of 

abode in the United Kingdom and thus outside the scope of the United Kingdom’s immigration control, and citizens 

of British Overseas Territories. In this report, the term “citizenship” is used to include nationality. These terms are 

commonly interchanged. Nationality has been defined as a person’s international identity that demonstrates they 

belong to a state, as evidenced by a passport. Citizenship has been considered to be more “a matter of law 

determined by the facts of a person’s date and place of birth, those of their parents and the application of the 

provisions of the relevant legislation,” and is concerned with the rights, duties, and opportunities that a person has 

within a state, such as voting rights, military service, and access to healthcare. LAURIE FRANSMAN, FRANSMAN’S 

BRITISH NATIONALITY LAW 12 (2d ed. 1998). 

2

 Musgrove v. Chun Teeong Toy, [1891] A.C. 272, followed in Schmidt v. Home Office, [1969] 2 Ch. 149. 

3

 Aliens Restriction Act 1914, 4 & 5 Geo. 5, c. 12. 

4

 Aliens Restriction (Amendment) Act 1919, c. 92, http://www.legislation.gov.uk/ukpga/1919/92/pdfs/ukpga_ 

19190092_en.pdf, archived at https://perma.cc/4G8L-2SXH. 

5

 Aliens Order (1920) Stat R. & O. 448, as amended. 
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The statutory regime governing immigration in the UK is currently contained in the Immigration 

Act 19716

 and the Immigration Rules7 made under it. The Immigration Rules are a fluid set of 

rules that change frequently. To change them, a Statement of Changes to the Immigration Rules 

is laid before Parliament; these changes enter into law within forty days unless Parliament 

objects to them.8

 The law requires individuals who are not British or Commonwealth citizens 

with the right of abode in the UK or members of the European Economic Area9 to obtain leave to 

enter the UK from an immigration officer upon their arrival.10 

The early 2000s saw record numbers of individuals seeking asylum in the UK, peaking at 84,132 

in 2002.11 These numbers led to significant public discontent, so the government introduced a 

number of measures that sought to limit the number of applicants entering the country, which 

included making it more difficult to obtain asylum and decreasing the benefits that asylum 

applicants could receive.12 As a result the number of asylum seekers dropped to a low of 17,916 

in 2010.13 In 2014, the numbers rose again to 25,033, with asylum seekers forming 4.1% of 

immigrants entering the UK during that year.14 In 2014, most asylum seekers were nationals of 

African countries (35%), Asian countries (32%), and Middle Eastern nations (20%). Ten percent 

of applicants were from Europe.15 As of August 2015, 9,756 applications for asylum from 2014 

had been granted, amounting to approximately 50% of those with known outcomes. 8,634 

applications had been refused or withdrawn, or 44.3%.16 Appeals were lodged in 74.3% of the 

2014 cases in which asylum was initially refused, and of those for which the outcome was 

known, 30.1% of the appeals were approved.17 

Due to the number of asylum seekers entering the UK over the past few years and the nature of 

the system for considering applications and appeals, a considerable backlog of cases has built up, 

 

6

 Immigration Act 1971, c. 77, as amended, http://www.legislation.gov.uk/ukpga/1971/77/pdfs/ukpga_19710077_ 

en.pdf, archived at https://perma.cc/4KSN-42ZB. 

7

 Immigration Rules, H.C. 395 (1994), ¶ 7, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part1-leave-to-enter-or-stay-in-the-uk#pt1stay, archived at https://perma.cc/V7Q9-8CR9. 

8

 Immigration Act, 1971, c. 77, § 3(2). 

9

 The European Economic Area consists of the Members of the European Union plus Norway, Iceland, 

and Liechtenstein. 

10 Immigration Act, 1971, c. 77, § 3; Immigration Rules, supra note 7, ¶ 7. 

11 House of Commons Library Briefing Paper, Asylum Statistics, SN014003, Dec. 15, 2015, at 6, 

http://researchbriefings.files.parliament.uk/documents/SN01403/SN01403.pdf, archived at https://perma.cc/7SRJ2C8L. 

12 See, e.g., Borders, Citizenship and Immigration Act 2009, c. 11, http://www.legislation.gov.uk/ukpga/2009/11, 

archived at https://perma.cc/5879-RQ7R; Nationality, Immigration and Asylum Act, 2002, c. 41, 

http://www.legislation.gov.uk/ukpga/2002/41, archived at https://perma.cc/PQ3W-8JJ3; Asylum and Immigration 

(Treatment of Claimants, etc.) Act 2004, c. 19. 

13 House of Commons Library Briefing Paper, Asylum Statistics, supra note 11, at 6.

14 Id.

15 Id. ¶ 2.4.

16 Id. ¶ 2.2.

17 Id. table 3. 
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causing substantial delays.18 The number of pending asylum cases at the end of 2015 

was 24,236.19 

II. Government Departments Responsible for Asylum 

The Home Office is the government department with primary responsibility for almost all 

aspects relating to immigration, including asylum, nationality and border control laws. There are 

various directorates within the Home Office that handle specific items relating to these areas 

of responsibility.20

UK Visas and Immigration, acting on behalf of the Home Secretary and Minister for 

Immigration, is responsible for processing asylum applications.21 Immigration Enforcement 

ensures that immigration laws are complied with, such as the prohibition on working without 

proper authorization. Immigration Enforcement also works to remove individuals that do not 

have permission to remain in the UK. The Border Force is responsible for immigration and 

customs controls at UK ports and airports and has recently been given the duty of conducting 

exit checks. HM Passport Office is responsible for processing applications for British passports, 

both overseas and in country.22

III. Asylum Laws and Policy 

Asylum is the term given to the protection offered to individuals who are fleeing persecution in 

their own country.23 As a general rule, asylum seekers may apply for asylum only after entering 

the UK. Asylum applicants who meet the application criteria receive refugee status. Applicants 

who do not receive refugee status may still be granted leave to remain in the UK for 

humanitarian or other reasons if there is a real risk that they would suffer serious harm after 

returning to their country of origin. The nature of this harm is not specified in the UN 

Convention and Protocol Relating to the Status of Refugees.24 Refugee status and humanitarian 

protection provide the individual with permission to reside in the UK for an initial period of five 

 

18 Id. ¶ 2.5. 

19 Id. 

20 Home Office, GOV.UK, https://www.gov.uk/government/organisations/home-office, archived at 

https://perma.cc/A99D-FU9F. 

21 House of Commons Library Briefing Paper, Asylum Statistics, supra note 11, at 4.

22 Id. at 4. 

23 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, 

SN03186, May 13, 2015, at 6, http://researchbriefings.files.parliament.uk/documents/SN03186/SN03186.pdf, 

archived at https://perma.cc/E9DJ-BN8P. 

24 Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 

(Refugees Convention) & Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (Protocol), 

http://www.unhcr.org/3b66c2aa10.html, archived at http://perma.cc/V86S-GU6S; Home Office, Asylum Policy 

Instructions, Version 9.0, Jan. 6, 2015, ¶ 6.2, available at https://www.gov.uk/government/uploads/system/uploads/ 

attachment_data/file/397778/ASSESSING_CREDIBILITY_AND_REFUGEE_STATUS_V9_0.pdf, archived at 

https://perma.cc/9BPM-Q8JU. 
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years, with the right to work and access welfare benefits.25 Lawful residence in the UK for a 

continuous period of five years generally qualifies an individual to apply for UK citizenship.26

If a person does not qualify for refugee status or humanitarian protection but removal would 

breach the UK’s human rights obligations, a situation that typically arises when a person has 

strong private and family ties to the UK, he/she may be granted temporary permission to remain 

in the UK. This leave will typically be subject to conditions.27

The UK offers very limited refugee resettlement programs whereby selected refugees are able to 

come and settle in the UK without having to go through the asylum process described above. 

Currently, there is a program for vulnerable Syrian refugees (see Part XII, below).28

Biometric information must be provided upon entry to the UK, and since April 2015 the UK has 

also been applying a system of exit checks, whereby travel data is recorded from people leaving 

the UK and reconciled against other immigration databases. Applicants for asylum are 

fingerprinted and their information checked against databases to help prevent those with a known 

criminal background from entering the UK.29 The data are also cross-referenced against the 

Immigration Asylum Fingerprint system to ensure there are no duplicate applications. In 

addition, the fingerprints are checked against the Eurodac database to ascertain whether the 

applicants have an outstanding application with another member state of the European Union.30 

These procedures also help identify fraudulent visa applications.31 

A. Statutory Regime 

The policy surrounding, and law governing, immigration and asylum is highly complex. The 

government attempts to balance the needs of those seeking genuine protection and prevent the 

entrance of those wishing to come to the UK for undesirable purposes. The statutory regime 

governing immigration and asylum in the UK is primarily contained in the Immigration Act 

197132 and the Immigration Rules.33 The 1971 Act makes it an offense for aliens to enter the UK 

 

25 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, supra

note 23, at 6. 

26 British Nationality Act 1981, c. 61, http://www.legislation.gov.uk/ukpga/1981/61, archived at 

https://perma.cc/AZU6-Y6SS.

27 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, supra

note 23, at 6. 

28 Id. at 7. 

29 Asylum and Immigration Appeals Act 1993, c. 23, § 3, http://www.legislation.gov.uk/ukpga/1993/23/section/3, 

archived at https://perma.cc/SA4S-49D2. 

30 HOUSE OF COMMONS HOME AFFAIRS COMMITTEE, THE WORK OF THE UK BORDER AGENCY: GOVERNMENT 

RESPONSE TO THE COMMITTEE’S SECOND REPORT OF SESSION 2009–10, 2009-10, HC 320, at 2, available at

http://www.publications.parliament.uk/pa/cm200910/cmselect/cmhaff/370/370.pdf, archived at

https://perma.cc/Y9D9-VTJ7. 

31 Id. 

32 Immigration Act 1971, c. 77. 

33 Immigration Rules, supra note 7. 
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without obtaining leave to enter.34 Officials have authority to attach conditions to such leave, 

and failing to observe these conditions is also a prosecutable offense.35

The UK’s national laws are subject to the European Convention on Human Rights36 and the UN 

Refugee Convention.37 Unlike the Human Rights Convention, the Refugee Convention has not 

been directly incorporated into UK domestic law, but its provisions influence the formulation of 

immigration rules, and practices contrary to the Convention are not permitted.38 

B. Process Taken to Determine Whether to Grant an Asylum Application 

Decisions for asylum and humanitarian protection claims are considered on an individual, 

objective, and impartial basis.39 Immigration officers take no part in determining asylum 

applications but pass them on to UK Visas and Immigration, which makes a decision on behalf 

of the Secretary of State for the Home Department.40 Personnel examining applications for 

asylum act on behalf of the Secretary of State and must have knowledge of the “relevant 

standards applicable in the field of asylum and refugee law.”41 The Asylum Policy Instructions 

issued by the Secretary of State provide guidance to caseworkers making decisions as to whether 

to grant or deny a claim of asylum.42 

The determining factor for receiving asylum is whether the individual meets the criteria 

contained in article 1 of the Refugee Convention and Protocol. This article defines a refugee as a 

person who, 

owing to 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 to or, owing to such fear, is unwilling to avail himself of the 

protection of that country.43

 

34 Immigration Act 1971, c. 77, § 24. 

35 Id. § 24(1)(ii)(b). 

36 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 

U.N.T.S. 222, http://www.echr.coe.int/Documents/Convention_ENG.pdf, archived at https://perma.cc/TE86-JJDK. 

The European Convention on Human Rights was incorporated into the national legislation of the United Kingdom 

by the Human Rights Act 1998, c. 42, http://www.legislation.gov.uk/ukpga/1998/42, archived at 

https://perma.cc/6N4J-4EWK. 

37 Refugees Convention, supra note 24. 

38 Id.; Asylum and Immigration Appeals Act 1993, c. 23, § 2, http://www.legislation.gov.uk/ukpga/1993/23, 

archived at https://perma.cc/6N4J-4EWK. 

39 Immigration Rules, supra note 7, ¶ 339J. 

40 FARID RAYMOND ANTHONY, QUESTIONS AND ANSWERS ON IMMIGRATION TO BRITAIN (2013), Q.264. 

41 Immigration Rules, supra note 7, ¶ 339HA. 

42 Home Office, Asylum Policy Instructions, supra note 24. 

43 Refugees Convention, supra note 24, art. 1. E NUMBER}. 
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The UK further implements a number of additional criteria when determining whether to grant 

refugee status. The Secretary of State grants an application for asylum if he/she is satisfied that: 

(i) [the asylum seeker] is in the United Kingdom or has arrived at a port of entry in the 

United Kingdom; 

(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of 

International Protection (Qualification) Regulations 2006; 

(iii) there are no reasonable grounds for regarding him as a danger to the security of the 

United Kingdom; 

(iv) having been convicted by a final judgment of a particularly serious crime, he does 

not constitute danger to the community of the United Kingdom; and 

(v) refusing his application would result in him being required to go (whether 

immediately or after the time limited by any existing leave to enter or remain) in breach 

of the Geneva Convention, to a country in which his life or freedom would threatened on 

account of his race, religion, nationality, political opinion or membership of a particular 

social group.44

If the individual meets the criteria, the UK will grant asylum to the applicant.45 If the application 

does not meet any of the above criteria it will be refused. The decision on his/her application is 

provided in writing and includes the reasons for the application’s rejection and details on how to 

challenge the decision.46 A person who has been notified that he/she has been refused asylum 

may be liable to removal as an illegal entrant, removal under the powers provided for in section 

10 of the Immigration and Asylum Act 1999, or deportation.47 

An individual’s refugee status may be subsequently revoked if the Secretary of State is satisfied 

that the provisions of the Refugee Convention cease to apply because 

(i) [the refugee] has voluntarily re-availed himself of the protection of the country 

of nationality; 

(ii) having lost his nationality, he has voluntarily re-acquired it; 

(iii) he has acquired a new nationality, and enjoys the protection of the country of his 

new nationality; 

(iv) he has voluntarily re-established himself in the country which he left or outside 

which he remained owing to a fear of persecution; 

(v) he can no longer, because the circumstances in connection with which he has been 

recognised as a refugee have ceased to exist, continue to refuse to avail himself of the 

protection of the country of nationality; or 

 

44 Immigration Rules, supra note 7, ¶ 334. 

45 Id. ¶ 328. 

46 Id. ¶ 336. 

47 Id. ¶ 338. 
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(vi) being a stateless person with no nationality, he is able, because the circumstances in 

connection with which he has been recognised a refugee have ceased to exist, to return to 

the country of former habitual residence.48 

C. Substantiating a Claim for Asylum 

When considering any asylum, humanitarian protection, or human rights claim, all material 

factors to substantiate the claim, including a statement of the reason for the claim and any 

documentation relating to identity, nationality, and other countries the individual has resided in 

must be submitted to the Secretary of State.49 For asylum applications, no information can be 

disclosed, nor obtained, from the alleged persecutor, that would “jeopardise the physical integrity 

of the applicant and his dependents, or the liberty and security of his family members still living 

in the country of origin.”50 Caseworkers reviewing an asylum application on behalf of the 

Secretary of State consider a number of factors to determine whether the applicant has been, or 

may be, subject to persecution or serious harm, including 

 the facts relating to the country of origin, including its laws and regulations; 

 statements and documents from the applicant; 

 the applicant’s position, background, and personal circumstances; 

 whether the applicant’s activities since leaving the country of origin were undertaken for the 

purposes of creating an asylum or humanitarian protection claim; and 

 whether the applicant should have reasonably been able to obtain protection in another 

country or other state of citizenship.51

In cases where the applicant’s statements are not supported by documentary or other evidence, 

proof of these facts will not be necessary if the person has made a genuine effort to substantiate 

his/her claim and a satisfactory explanation regarding the lack of materials has been made, the 

claimant’s statements are coherent and plausible and do not contradict information relevant the 

person’s case, the claim was made at the earliest possible time, and the claimant has been able to 

establish his/her general credibility.52 

An application for asylum is rejected if the claim has not been adequately substantiated, or if the 

applicant has not established him/herself as eligible for asylum or humanitarian protection. The 

applicant’s claim may also be rejected if he/she fails to disclose facts that are material to the case 

or otherwise assist the Secretary of State in establishing the facts of the case.53 Failing to report 

to a designated place to be fingerprinted or to complete a questionnaire, or failing to comply with 

a condition to report to an immigration officer for examination, are all grounds for the Secretary 

 

48 Id. ¶¶ 339A, 339B. 

49 Id. ¶ 339I. 

50 Id. ¶ 339IA. 

51 Id. ¶ 339J. 

52 Id. ¶ 339L. 

53 Home Office, Asylum Policy Instructions, supra note 24, at 39. 
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of State to reject an asylum application. If the applicant leaves the UK without proper 

authorization at any time during the application process or fails to complete any steps of the 

process, the application is considered as withdrawn.54 

Any individual that has a pending asylum application may not be subject to action to remove the 

applicant or his or her dependents from the UK.55 Decisions on asylum applications are provided 

for in writing56 and must be made as soon as possible. If the decision cannot be made within six 

months of the date of application, the Secretary of State must inform the applicant of the delay. 

In cases where the applicant has requested in writing information regarding when the decision 

should be expected, the Secretary of State must provide this information.57

D. Humanitarian Leave 

In cases where the asylum applicant is not eligible for asylum, he/she may be entitled to stay in 

the UK on humanitarian grounds if he/she is in the UK, or has arrived at a port of entry in the 

UK, and does not qualify as a refugee under regulation 2 of the Refugee or Person in Need of 

International Protection (Qualification) Regulations 2006.58 The key criterion to a grant of 

humanitarian leave is the existence of substantial grounds for believing that if the applicant 

returned to the country of origin he/she would face a “real risk of suffering serious harm” and the 

applicant is therefore unable to return to that country.”59 He/she must also not fall within a 

category of persons who are to be excluded from humanitarian protection.60 When a claim for 

humanitarian protection is presented, the Secretary of State considers the individual’s statements 

that detail his or her reasons for making the claim; documentation of his/her identity, nationality, 

 

54 Immigration Rules, supra note 7, ¶ 333C. 

55 Id. ¶ 329. 

56 Id. ¶ 333. 

57 Id. ¶¶ 333, 333A. 

58 Id. ¶ 339C. 

59 Id. ¶¶ 339C, 339I. Serious harm in this instance is defined as: “(i) the death penalty or execution;(ii) unlawful 

killing;(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or(iv) 

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of 

international or internal armed conflict.” Id. ¶ 339C. 

60 Id. ¶ 339D, which provides that a person will be excluded from humanitarian protection if 

the Secretary of State is satisfied that: (i) there are serious reasons for considering that he has 

committed a crime against peace, a war crime, a crime against humanity, or any other serious 

crime or instigated or otherwise participated in such crimes;(ii) there are serious reasons for 

considering that he is guilty of acts contrary to the purposes and principles of the United Nations 

or has committed, prepared or instigated such acts or encouraged or induced others to commit, 

prepare or instigate instigated such acts;(iii) there are serious reasons for considering that he 

constitutes a danger to the community or to the security of the United Kingdom; or(iv) prior to his 

admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) 

that would be punishable by imprisonment were it committed in the United Kingdom and the 

person left his country of origin solely in order to avoid sanctions resulting from the crime. 
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countries of previous residence, travel history, etc.; and fact sheets relating to the country of 

origin or return that may verify the applicant’s statements.61

E. Individuals Prohibited from Obtaining Refugee Status 

As noted above, the UK must balance the needs of people in genuine need of asylum against 

those that wish to enter the UK for undesirable purposes. These “undesirable purposes” are 

rather broad and individuals may be refused entry into the UK if the Secretary of State personally 

directs that “the exclusion of that person from the United Kingdom is conducive to the public 

good”,62 or the Immigration Officer has information that it 

seems right to refuse leave to enter on the ground that exclusion from the United 

Kingdom is conducive to the public good; if, for example, in the light of the character, 

conduct or associations of the person seeking leave to enter it is undesirable to give him 

leave to enter.63

The Secretary of State may exclude individuals from the protection of the Refugee Convention if 

they should be excluded in accordance with regulation 7 of the Refugee or Person in Need of 

International Protection (Qualification) Regulations 2006.64 The burden of proof is on the 

Secretary of State to show that the applicant falls within the criteria of regulation 7. 

F. Restricted Leave 

There are some instances where asylum applicants are not eligible for refugee, humanitarian, 

discretionary, or other protected status in the UK in accordance with article 1F of the 

Convention, but may not be returned to their home country as it would breach the UK’s 

obligations under the European Convention on Human Rights.65 In these instances, the 

individual may obtain restricted leave to remain.66 This leave is typically granted in cases where 

there are serious reasons to consider that the asylum seeker has 

committed war crimes, crimes against humanity, serious non-political crimes outside the 

country or refuge or acts contrary to the purposes and principles of the United Nations, or 

[is] a danger to national security or [is] otherwise non-conducive to the public good.67

 

61 Id. ¶ 339I. 

62 Id. ¶¶ 320(6), 321A(4). 

63 Id. ¶ 320(19). 

64 Immigration Rules, supra note 7, ¶ 339AA. 

65 Asylum Instruction Exclusion: Article 1F of the Refugee Convention ¶ 2.1, https://www.gov.uk/government/ 

uploads/system/uploads/attachment_data/file/257429/exclusion.pdf, archived at https://perma.cc/S6S4-YWDX. 

66 Home Office, Asylum Policy Instruction: Restricted Leave, Jan. 23, 2015, https://www.gov.uk/government/ 

uploads/system/uploads/attachment_data/file/397502/API_Restricted_Leave_Article_1F.pdf, archived at 

https://perma.cc/659P-SFKL. 

67 Asylum Instruction Exclusion, supra note 65, ¶ 2.1. 
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The above criteria includes those who espouse extremist views. The rationale behind restricted 

leave is to preserve the public interest, protect the public, and at the same time uphold the rule 

of law.68 

Cases where restricted leave are granted are regularly reviewed with the intention of removing 

the individual from the UK at the earliest available opportunity. Government policy provides 

that only in exceptional circumstances will individuals in the UK on restricted leave become 

eligible for settlement or citizenship, and that it anticipates such circumstances will be rare.69 

Typically, restricted leave is granted for a maximum period of six months, which may be less if 

it appears likely that the individual will be removed prior to this date, or the risk the individual 

poses dictates that the period should be reviewed more frequently.70 It is the individual’s 

responsibility to apply for additional leave to remain; however, the case must also be reviewed 

by the authorities to assess whether the individual can be lawfully removed to his or her home 

country.71 If it is determined that removal is permitted, the individual has a right of appeal and, 

once any appeals have been exhausted, the individual will be removed from the UK.72 

Individuals that are subject to restricted leave are not allowed recourse to public funds unless 

they are destitute, and the burden of proof is on the individual to prove this fact.73

There are a number of conditions that may be imposed on individuals who are in the UK on 

restricted leave. It is presumed that such individuals will have a condition attached to their leave 

that requires them to regularly report to the Secretary of State.74 Individuals on restricted leave 

may have restrictions imposed on any employment. Specifically, there could be a requirement to 

notify the Secretary of State of any employment or volunteer roles, a prohibition on engaging in 

certain occupations or professions, or a complete ban on employment.75 Guidance notes that a 

complete ban on employment should only be used in exceptional cases where the individual 

poses a high risk to the public and requires such cases to be referred to the local police to be 

handled under the regime for potentially dangerous people.76 Restrictions on employment are 

noted in the immigration status document or biometric residence permit, which will include a 

remark that notes the individual’s immigration status.77 Guidance also notes that individuals on 

 

68 Home Office, Asylum Policy Instruction Restricted Leave, supra note 66, ¶ 1.3.1. 

69 Id. ¶ 1.2.5. 

70 Id. ¶ 4.1.2. 

71 Id. ¶ 4.10.1. 

72 Id. ¶ 4.10.2. 

73 Id. ¶ 4.3.1. The following document provides the criteria that the Home Office uses to assess whether an 

individual is destitute: Home Office, Assessing Destitution, 2014, https://www.gov.uk/government/uploads/system/ 

uploads/attachment_data/file/326774/Assessing_Destitution_Instruction.pdf, archived at https://perma.cc/2MUZF2LJ. 

74 Id. ¶ 4.6.1. 

75 Home Office, Asylum Policy Instruction Restricted Leave, supra note 66, ¶ 4.4.1. 

76 Id.. 

77 Id. 
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restricted leave should generally be restricted from receiving education, either online or 

in person.78

Residence restrictions may also be imposed on the individual, and may subject the applicant to 

conditions such as not spending more than three consecutive nights away from the address 

without prior written consent of the Secretary of State or not spending more than ten nights away 

from the address in any six-month period.79 Any conditions should be specified and explained in 

the notice attached to the leave to enter.80 

Each case of restricted leave is considered on its facts. Issues considered in determining where 

to accommodate the individual include whether there is a significant community from the 

applicant’s country of origin, as the government does not want to cause either risk to the 

individual from that community or risk to the community from the individual.81 If it is suspected 

that the person is not complying with the conditions, the Immigration, Compliance and 

Engagement Team may commission an investigation.82 

All cases that involve exclusion and restricted leave are handled by the Special Cases Unit.83

G. Revoking Refugee Status 

The Secretary of State may revoke a person’s refugee status if the individual has misrepresented 

or omitted facts, or used false documents, which were decisive in the grant of refugee status. If 

information becomes available after asylum is granted that there are reasonable grounds that the 

individual is a danger to the security of the UK, or the community if they have been convicted of 

a serious crime, refugee or humanitarian protection status can be cancelled or revoked in 

accordance with article 1F of the Convention.84 Leave to enter or remain should typically be 

refused if it is undesirable to allow the person to remain in the UK due to his or her conduct, 

character, or associations, or because the person represents a threat to the national security of the 

UK.85 Individuals who are refused asylum because of the above grounds are prioritized for 

enforcement action and removal.86 

When the Secretary of State uses these provisions to revoke a person’s refugee status the person 

in question must be notified in writing that his or her qualification for refugee status is being 

reconsidered along with the reasons for the reconsideration. The person has the opportunity to 

 

78 Id. ¶ 4.7. 

79 Id. ¶ 4.5.5. 

80 Id. ¶ 4.5.5. 

81 Id. ¶ 4.5.6. 

82 Id. ¶ 4.5.13. 

83 Id. ¶ 4.1.1. 

84 Immigration Rules, supra note 7, ¶¶ 339A, 339G. 

85 Id. ¶ 322(5). 

86 Home Office, Asylum Policy Instruction Restricted Leave, supra note 66, ¶ 3.1.2. 
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submit either a written statement or undergo an in-person interview stating why his or her 

refugee status should not be revoked.87

IV. Accommodation and Benefits for Asylum Seekers 

In an attempt to remove the perception that the United Kingdom is a “soft touch” for asylum 

seekers and the public perception that asylum seekers are taking away money from benefits that 

citizens of Britain are entitled to, the early 2000s saw the government introduce a number of 

controversial new laws. These laws provide that asylum seekers are not permitted to work, allow 

for administrative detention, limit the benefits provided, and enable benefits to be withdrawn if it 

is believed the applicant did not make a claim for asylum within a reasonably practicable time.88 

Asylum seekers from countries that are deemed “safe” and those whose claims are “clearly 

unfounded” are detained and can be removed from the UK while they appeal the decision to 

deny them asylum.89 

In all cases where children are involved, section 55 of the Borders, Citizenship and Immigration 

Act 2009 requires the Home Office to safeguard and promote the welfare of children in the UK 

when it discharges its functions.90

Section 95 of the Immigration and Asylum Act 1999 provides that the Home Office has a duty to 

provide support to asylum seekers.91 Section 116 of this Act provides that it is the responsibility 

of the Home Office to provide accommodation and support to asylum seekers92 who would 

otherwise be destitute.93 Registered social landlords are not required to provide housing to the 

Home Office; however, local authorities may be compelled by the Home Office to provide 

accommodation.94 Support is provided to asylum seekers through furnished accommodation 

including utilities, a weekly cash allowance to cover essential living needs, and free access to 

healthcare and schooling.95 

 

87 Immigration Rules, supra note 7, ¶ 339BA. 

88 Nationality, Immigration and Asylum Act, 2002, c. 41, http://www.legislation.gov.uk/ukpga/2002/41, archived at 

https://perma.cc/PQ3W-8JJ3; Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, c. 19. 

89 HOME OFFICE, CONTROLLING OUR BORDERS: MAKING MIGRATION WORK IN BRITAIN, FIVE YEAR STRATEGY FOR 

ASYLUM AND IMMIGRATION, 2005, Cm. 6472, Annex C; Nationality, Immigration and Asylum Act, 2002, c. 41. 

90 Borders, Citizenship and Immigration Act 2009, c. 11, http://www.legislation.gov.uk/ukpga/2009/11, archived at

https://perma.cc/5879-RQ7R. 

91 Immigration and Asylum Act 1999, c. 33, § 95, http://www.legislation.gov.uk/ukpga/1999/33, archived at

https://perma.cc/ZPF5-XP2G. 

92 Id.§ 116 (amending section 21 of the National Assistance Act 1948, 11 & 12 Geo. 6, c. 29, 

http://www.legislation.gov.uk/ukpga/Geo6/11-12/29, archived at https://perma.cc/YAC4-FQUH. 

93 Home Office, Duty to Offer Support, Family Unity, Vulnerable Persons, Withdrawing Support, Policy Bulletin 83, 

¶ 1.3, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326157/pb83.pdf (last updated 

July 2014), archived at https://perma.cc/DRT7-KLF3. 

94 Immigration and Asylum Act 1999, c. 33 §§ 100–101. 

95 Home Office, Reforming Support for Failed Asylum Seekers and Other Illegal Migrants: Response to 

Consultation, Nov. 2015, ¶ 1.1, 
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Asylum seekers do not have a choice as to where they will be accommodated while they are 

waiting for a decision, and they are generally accommodated outside of London and the 

southeast in accordance with a “dispersal policy.”96 Section 97 of the Immigration and Asylum 

Act 1999 provides that caseworkers should provide accommodation to asylum seekers in areas 

where there is a ready supply.97 When deciding where to accommodate asylum seekers, 

caseworkers are required to give regard to a number of factors, including the applicants’ ethnic 

group, family ties, and religion.98 Having family in a certain area of the UK does not guarantee 

that the applicant will be accommodated in that area. Guidance provides that “[t]he person’s 

individual circumstances and the nature of the relationship with that relative or friend should 

always be carefully taken into account. But in the absence of exceptional circumstances, 

dispersal will generally be appropriate.”99 

The government has reported that as of March 2015 approximately 20,400 asylum seekers 

awaiting a final determination were being provided with support under section 95 of the Asylum 

Act. In the calendar year 2014–15 the cost of this support was estimated at £100 million 

(approximately US$165 million).100 Support is also being provided to failed asylum seekers in 

accordance with section 94(5) of the Asylum Act, which provides that support should continue if 

the failed asylum seeker has dependent children with him or her. As of March 31, 2015, this 

provision covered 2,900 families (approximately 10,100 people), costing an estimated £45 

million (approximately US$75 million) for the year 2014–15.101 

The government is able to recover payments provided to asylum seekers if it later becomes 

apparent that the asylum seeker receiving support has assets of any kind in the UK or overseas 

that are capable of being used.102 These monies may also be recovered from deductions taken 

from any continued asylum support payments.103

 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/473284/Response_to_Consultation.p

df, archived at https://perma.cc/TY48-EHN2. 

96 Immigration and Asylum Act 1999, c. 33 § 97; House of Commons Library Briefing Paper, ‘Asylum Support’: 

Accommodation and Financial Support for Asylum Seekers, No. 1909, Oct. 14, 2015, at 4, http://research 

briefings.files.parliament.uk/documents/SN01909/SN01909.pdf, archived at https://perma.cc/5MA5-3XVN. 

97 UK Visas and Immigration, Dispersal – Accommodation Requests Policy, v.2.0, ¶ 1.1, https://www.gov.uk/ 

government/uploads/system/uploads/attachment_data/file/425305/Accommodation_Requests_PUBLIC_v2.0.pdf

(last updated Apr. 30, 2015), archived at https://perma.cc/6EYH-UP78. 

98 House of Commons Library Briefing Paper, ‘Asylum Support’: Accommodation and Financial Support for Asylum 

Seekers, supra note 96, ¶ 2.1. 

99 Id. ¶ 2.4. 

100 Id. ¶ 1.1. 

101 Id. ¶ 1.2. 

102 Asylum Support Regulations 2000, SI 2000/704, ¶ 17, http://www.legislation.gov.uk/uksi/2000/704/regulation/ 

17/made, archived at https://perma.cc/E22F-GPX6.

103 Id. ¶ 18. 
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Asylum support will not be provided if the individual did not submit an application for asylum as 

soon as reasonably practicable after they arrived in the UK.104 Support may be suspended or 

stopped if an asylum seeker, or the asylum seeker’s dependent, breaches certain criteria, such as 

committing an offense, abandoning the address of accommodation, failing to comply with 

requests for information regarding the asylum claim, or failing to comply with a requirement to 

report or with a condition of the application.105 If support is discontinued, the asylum seeker has 

a right of appeal to the Tribunal Service.106 

V. Support for Failed Asylum Seekers 

Failed asylum seekers who are taking all reasonable steps to leave the UK but are unable to do so 

for reasons beyond their control may also continue to receive support under section 4 of the 

Immigration Act 1999 if they will otherwise become destitute within a fourteen-day period.107 

This support is known as section 4 support108 and, as of March 31, 2015, approximately 4,900 

failed asylum seekers were receiving support under this section at an estimated cost of £28 

million (approximately US$45 million).109 

The government has noted that the large amounts of money spent supporting failed asylum 

seekers “is wrong in principle and sends entirely the wrong message to those migrants who do 

not require our protection but who may seek to exploit the system. It also undermines public 

confidence in our asylum system.”110 It is seeking to reform the system of support for failed 

asylum seekers and has introduced an immigration bill that would repeal the requirement to 

provide support to failed asylum seekers, with certain exceptions.111

 

 

104 Nationality, Immigration and Asylum Act 2002, c. 41, § 55. 

105 Asylum Support Regulations 2000, supra note 102, ¶ 20. 

106 Immigration and Asylum Act 1999, c. 33, § 103(2). 

107 The test for destitution for section 4 applicants is the same as provided in section 95(3) of the Immigration and 

Asylum Act 1999, which provides: “a person is destitute if: a. he does not have adequate accommodation or any 

means of obtaining it (whether or not his other essential living needs are met); or b. he has adequate accommodation 

or the means of obtaining it, but cannot meet his other essential living needs.” Further information on the test used 

to determine destitution is available at UK Visas & Immigration, Asylum Support, Section 4 Policy and Process, 

Version 6.0 (last updated Dec. 21, 2015), ¶1.7, https://www.gov.uk/government/uploads/system/uploads/ 

attachment_data/file/487381/Asylum_Support_Section_4_Policy_and_Process_PUBLIC_v6.pdf, archived at 

https://perma.cc/DC3T-2WLL, and Asylum Support Regulations 2000, supra note 102, ¶¶ 5–7. 

108 Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005, SI 

2005/930, ¶ 3(2), http://www.legislation.gov.uk/uksi/2005/930/made, archived at https://perma.cc/7D8C-DUE8.

109 House of Commons Library Briefing Paper, ‘Asylum Support’: Accommodation and Financial Support for 

Asylum Seekers, supra note 96, ¶ 1.2. 

110 Home Office, Reforming Support for Failed Asylum Seekers and Other Illegal Migrants: Response to 

Consultation, supra note 95, ¶ 1.3. 

111 Id. ¶ 1.3. 
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VI. Appeals Against the Refusal to Grant Asylum 

Appeals against the refusal to grant asylum are processed by Her Majesty’s Courts and Tribunals 

Service. The Tribunals Service (Immigration and Asylum Chambers) hears asylum and 

immigration appeals, operating a two-tier system, with a first-tier and then an upper tribunal. 

Additional appeals from this tribunal are permitted and heard by the Court of Appeal.112 The 

First-tier Tribunal’s Asylum Support Chamber is responsible for hearing appeals against 

decisions that refuse, terminate, or withdraw accommodation or financial support to an 

asylum seeker.113 

A. Appeals Process

A significant issue faced by the UK in processing asylum cases has been not only the sheer 

number of cases seen each year, but the appeals process that subsequently followed many first 

decisions. Asylum seekers’ rights of appeal have been significantly reduced since the early 

2000s, most recently by a series of measures contained in the Immigration Act 2014.114 Many 

application categories have removed the right of appeal in cases of decisions by UK Visas and 

Immigration that refuse their asylum application. Instead, for some categories, the refused 

applicant may have the refusal “reconsidered” or subject to an administrative review, which are 

more limited in both scope and focus than court appeals.115 There are limited time frames in 

which any appeals or administrative reviews may be requested. 

Fifty-nine percent of all applications for asylum are refused at the initial decision.116 Around 

three-quarters of those refused applicants appeal the decision, and around one-quarter of these 

appeals are allowed.117

B. Special Immigration Appeals Commission

Cases that involve sensitive information, such as those taken on national security or public 

interest grounds, are heard by the Special Immigration Appeals Commission (SIAC),118 which 

was established in 1997.119 It is a superior court of record and currently hears appeals against 

decisions made by the Home Office to “deport, or exclude, someone from the UK on national 

 

112 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, 

supra note 23, at 4. 

113 Id. 

114 Immigration Act 2014, c. 22, http://www.legislation.gov.uk/ukpga/2014/22, archived at https://perma.cc/5KC6-

YVU8. 

115 Id. at 4; House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and 

Nationality, supra note 23, at 4. 

116 House of Commons Library Briefing Paper, Asylum Statistics, supra note 11, at ¶ 1.3, 

117 Id. at 2.

118 Id. at 5. 

119 Special Immigration Appeals Commission Act 1997, c. 68, http://www.legislation.gov.uk/ukpga/1997/68, 

archived at https://perma.cc/L3V4-7FHF. 
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security grounds, or for other public interest reasons,” and “appeals against decisions to deprive 

persons of citizenship status.”120 As the SIAC is not a court of law, it considers “evidence in 

documentary, or any other form, and evidence that would not be admissible in a court of law,”121

and it may rely upon witnesses that the appellant cannot cross examine and “sources of 

all kinds.”122

One part of the procedure of the SIAC that has been criticized are the closed sessions that it 

conducts if the evidence before it is considered to be sensitive, such as certain types of 

intelligence materials where the disclosure could damage the public interest. In these cases, the 

appellant and his or her lawyer may not sit in the session. The government inserted a safeguard 

to ensure that appellants receive adequate representation during these closed hearings by having 

their interests represented by a Special Advocate, a lawyer with special security clearances.123 

Nonetheless, the result of these closed hearings is that individuals can be deported if they are 

considered to be a risk to national security, which can be determined according to evidence heard 

in a closed hearing alone. 

The standard of proof used by the SIAC in arriving at its decisions is the civil standard of the 

“balance of probabilities.” From the open judgments and evidence available, the conclusions 

drawn by the SIAC indicate that it relies upon the totality of evidence, and considers the 

cumulative effect of evidence against a person when making a decision as to whether they are a 

threat to the national security of the UK. Thus, it appears that it does not require a high standard 

of evidence of concrete acts to show that an individual presents a danger; the SIAC looks at the 

total evidence against the person, including, but not limited to, associations with and membership 

in terrorist organizations, to determine whether an individual is a threat to national security.124 

VII. Removal 

Individuals who are not lawfully present in the UK may be removed and could be subject to a 

ban on re-entry for a period of up to ten years.125 The statutory regime for deportation from the 

UK is contained in the Immigration Act 1971. This Act provides that a person can be deported 

from the UK by a deportation order if he or she is not a British citizen, and 

 

120 Special Immigration Appeals Commission, https://www.gov.uk/government/uploads/system/uploads/attachment_ 

data/file/421503/Consolidated_text_of_SIAC_Rules_2003.pdf, (last updated Apr. 10, 2015), archived at

https://perma.cc/L7CN-RXXD. 

121 PP v. Sec’y of State for the Home Department, SC/54/2006, ¶ 4 (Nov. 23, 2007), http://www.siac.tribunals. 

gov.uk/Documents/outcomes/PP.pdf, archived at https://perma.cc/A62V-46UZ. This rule is contained in the 

Special Immigration Appeals Commission (Procedure) Rule 2003, SI 2003/1034, ¶ 44(2)–(3), 

http://www.legislation.gov.uk/uksi/2003/1034/made, archived at https://perma.cc/Y2RM-U7RN. 

122 Per Lord Hope, A et al. v. SSHD, 2005 UKHL 71, cited in PP v. Sec’y of State for the Home Department, 

SC/54/2006, ¶ 4. 

123 Special Immigration Appeals Commission Act 1997, c. 68, § 6, http://www.legislation.gov.uk/ukpga/1997/68 , 

archived at https://perma.cc/2ASQ-R89Z. The role of the Special Advocate in these closed sessions is dictated by 

the Special Immigration Appeals Commission (Procedure) Rules 2003, SI 2003/1034, ¶ 35. 

124 MATTHEW LEWANS, ADMINISTRATIVE LAW AND JUDICIAL DEFERENCE 81 (2016). 

125 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, 

supra note 23, at 6. 
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 the Secretary of State has deemed that the person’s deportation is conducive to the 

public good; 

 the person is the spouse, civil partner, or child under eighteen of someone ordered to be 

deported; or 

 the court has recommended deportation in the case of a person over the age of seventeen 

convicted of an offense punishable with imprisonment.126 

More recent legislation has defined the phrase “conducive to the public good” to include 

instances where the person has been convicted of a “serious offense”127 (notably terrorist 

offenses), or a cumulative number of minor offenses in which the court did not recommend 

deportation, or where the person obtained indefinite leave to remain by deception. The 

deportation order is revocable by a further order from the Secretary of State, or if the person 

becomes a British citizen.128

Persons awaiting deportation can be detained but have a right to bail unless there is a substantial 

likelihood, on the balance of probabilities, that the individual 

 will commit an offense punishable with imprisonment, 

 will be a serious threat to the maintenance of public order, or 

 has knowingly entered the United Kingdom with others in breach of immigration law.129 

 

 

126 Immigration Act, 1971, c. 77, § 3(5); see also Immigration Rules, supra note 7, ¶ 363. 

127 “Serious Crime” is defined as follows by section 72(2) of the Nationality, Immigration and Asylum Act, 2002, 

c. 41: 

A person shall be presumed to have been convicted by a final judgment of a particularly serious 

crime and to constitute a danger to the community of the United Kingdom if he is – (a) convicted 

in the United Kingdom of an offence, and (b) sentenced to a period of imprisonment of at least 

two years.” Section 72(3) provides: “A person shall be presumed to have been convicted by a 

final judgment of a particularly serious crime and to constitute a danger to the community of the 

United Kingdom if – (a) he is convicted outside the United Kingdom of an offence, (b) he is 

sentenced to a period of imprisonment of at least two years, and (c) he could have been sentenced 

to a period of imprisonment of at least two years had his conviction been a conviction in the 

United Kingdom of a similar offence. 

Section 72(4) states as follows: 

A person shall be presumed to have been convicted by a final judgment of a particularly serious 

crime and to constitute a danger to the community of the United Kingdom if – (a) he is convicted 

of an offence specified by order of the Secretary of State, or (b) he is convicted outside the United 

Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar 

to an offence specified by order under paragraph (a). 

128 Immigration Act, 1971, c. 77, § 5. 

129 Id. § 5 & sched. 3; see also Immigration Rules, supra note 7, ¶ 362. 
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An individual in the circumstances above may also be detained if 

 directions are in force for his or her removal from the United Kingdom, 

 it is in the interest of national security, 

 it is conducive to the public good, or 

 another person to whose family he or she belongs is or has been ordered to be deported.130 

When an order for deportation is made against an individual for reasons of national security or 

because it is conducive to the public good, a statement of the reasons for the decision should 

be made.131

If all applications for asylum are refused and the individual has exhausted all rights of appeal the 

asylum seeker must leave the UK. If he or she does not do so voluntarily, the Home Office will 

arrange for the individual to be removed.132 The Border Force is responsible for removing 

individuals from the UK who are not lawfully present there.133 When a decision has been made 

to deport a person from the United Kingdom, notice is given to that person, and the Secretary of 

State may authorize the person’s detention or issue an order restricting his/her residence, 

employment, or occupation, and may also impose additional requirements for reporting to 

the police.134 

Other than in certain limited circumstances, the government bears the costs for the removal of 

individuals subject to deportation orders. The person subject to the deportation order is informed 

of the flight details, but no reference is included in the case working instructions as to the times 

of the flights to which individuals may be assigned.135

Deportees are typically sent to their country of citizenship or to a country where they are a 

national; in certain circumstances, however, they may be deported to a third country, provided 

their entrance is acceptable there.136

An individual with a pending asylum application and his/her dependents are not subject to 

removal from the UK.137 

 

130 Id. § 3(6). 

131 Id. § 5, sched. 3. 

132 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, 

supra note 23, at 7. 

133 Id. at 4. 

134 Immigration Rules, supra note 7, pt. 13 (Deportation). 

135 UK Visas and Immigration, Enforcement Instructions and Guidance, ch. 47, https://www.gov.uk/government/ 

uploads/system/uploads/attachment_data/file/270022/chapter47.pdf (last updated Nov. 27, 2013), archived at 

https://perma.cc/7YVQ-HMJQ. 

136 Id. 

137 Id. ¶ 329. 
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VIII. Deportation on National Security Grounds 

As noted above, an individual can be deported from the UK for reasons of national security. The 

term “national security” has not been defined in legislation in the UK, and case law indicates that 

no judicial definition has been provided, “even in those cases where the Courts have considered 

the extent of their powers to review executive decisions of that kind.”138 Indeed, the case law 

shows that great deference has been given to the executive to determine what is in the interest of 

national security, as the judiciary considers that the executive is in a better position to assess the 

threat posed to the national security of the country.139

The British government uses this tool of deportation as part of its counterterrorism strategy. 

Prosecution is the UK’s preferred approach to addressing suspected terrorists, but it considers 

that deportation on national security grounds is another means of disrupting terrorist activity.140 

MI5 has specified that 

[w]here the person concerned is a foreign national, and is a threat to the UK, deportation 

will usually be an appropriate means of disrupting terrorist activity. This is important in 

terms of ensuring public safety, as well as sending a strong signal that foreign nationals 

who threaten our national security cannot expect to be allowed to remain in the UK. 

Those who are outside the UK will normally be excluded.141

The Immigration, Asylum and Nationality Act 2006 provided a number of additional measures 

that made it easier for the government to deport individuals for reasons of national security.142 It 

limited the grounds of appeal in cases of national security to those solely based on human 

rights concerns.143 

IX. Path to Naturalization 

Individuals lawfully present in the UK for specified periods of time, including those granted 

refugee status, may be eligible for naturalization if they meet additional criteria. Legislation 

regarding citizenship is contained primarily in the British Nationality Act 1981, as amended.144 

Refugees may be able to obtain British citizenship through naturalization.145 Citizenship is not 

 

138 Hilton v. Sec’y of State for Foreign and Commonwealth Affairs, Information Tribunal (National Security 

Appeals Panel) ¶ 47, http://www.informationtribunal.gov.uk/Documents/nsap/hilton.pdf, archived at

https://perma.cc/D7MB-7HXS. 

139 A et al. v. Sec’y of State for the Home Department, [2004] UKHL 56, ¶ 37. 

140 HM GOVERNMENT, COUNTERING INTERNATIONAL TERRORISM: THE UNITED KINGDOM’S STRATEGY, 2006, 

(2005-6) Cm. 6888, ¶ 69, available at https://www.gov.uk/government/uploads/system/uploads/attachment_ 

data/file/272320/6888.pdf, archived at https://perma.cc/NB5N-TDVE. 

141 Id. ¶ 73. 

142 Immigration, Asylum and Nationality Act 2006, c. 13, http://www.legislation.gov.uk/ukpga/2006/13, archived at

https://perma.cc/B3KC-N3MW. 

143 Id. § 7. 

144 British Nationality Act 1981, c. 61, http://www.legislation.gov.uk/ukpga/1981/61. 

145 Id. §§ 3–5. 
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granted automatically to individuals who have legally resided in the United Kingdom for any 

period of time, nor is it granted automatically to individuals who marry British citizens or babies 

born in the UK. Such individuals must meet specific criteria contained within the British 

Nationality Act 1981 and apply for citizenship. 

A. Naturalization and Residence 

Citizenship through naturalization is not an entitlement or right. Certain legal requirements must 

be met and the Home Secretary must “see fit” to grant citizenship.146 These requirements 

include the ability to communicate in English, Welsh, or Scottish Gaelic; being of sound mind; 

and having a good character.147 

B. Family Reunification 

Individuals who obtain permanent leave to remain or citizenship are entitled to bring their 

immediate family members, defined as their spouse and any children under the age of 

eighteen.148 Parents and grandparents of settled persons or citizens are permitted to join their 

children or grandchildren in the United Kingdom but only if they are over the age of sixty-five 

and have no other relatives to support them in their home country.149 Other close relatives, such 

as aunts, uncles, brothers, and sisters may be eligible “if living alone outside the United 

Kingdom in the most exceptional compassionate circumstance.”150 There are financial 

requirements that the British citizen or UK resident must meet in order to ensure their family 

migrant does not require recourse to public funds. These financial requirements were challenged 

in the courts, but were upheld by the Court of Appeal.151 

X. Immigration Detention 

A controversial aspect of the UK’s asylum policy has been that of detaining immigrants.152 

Home Office officials have the authority to detain asylum seekers and other migrants who enter 

the UK without proper authorization. This detention is for administrative purposes and generally 

used to establish the applicant’s identity, determine the basis of their claim, and ensure that an 

individual can be removed from the UK, or where there are any reasons to cause officials to 

believe that the individual will not comply with any conditions attached to a grant of leave to 

enter. There is no maximum time period for which individuals may be detained, nor is there any 

 

146 Become a British Citizenship, GOV.UK, http://www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/ 

naturalisation/standardrequirements/ (last visited Jan. 26, 2016), archived at https://perma.cc/K9CM-G2KN.

147 British Nationality Act 1981, c. 61, sch. 1. 

148 Immigration Rules, supra note 7, pt. 8. 

149 Id.

150 Id. ¶ 317(i)(f). 

151 MM et al. v. Secretary of State for the Home Department, [2014] EWCA Civ. 985, http://www.bailii. 

org/ew/cases/EWCA/Civ/2014/985.html, archived at https://perma.cc/V6DT-Y3SL. 

152 House of Commons Library Briefing Paper, Immigration Detention in the UK: An Overview, No. 7294, Sept. 7, 

2015, at 3, http://researchbriefings.files.parliament.uk/documents/CBP-7294/CBP-7294.pdf, archived at

https://perma.cc/KL2Z-6B77. 
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automatic judicial oversight of detention decisions. Home Office policy states that detention 

should not be used routinely and, when used, should be for the shortest period necessary.153 

There are ten detention centers (known as immigration removal centers) across the UK.154 There 

are other forms of secure accommodation that are used for families prior to their removal from 

the UK, as well as other residential and nonresidential short-term holding facilities.155 The rules 

that the detention centers operate under are provided for in the Detention Centre Rules 2001. 

These rules detail the admission and discharge of detained individuals, as well as basic welfare 

and privileges that detained individuals may have within the centers, including access to 

healthcare and education, access to individuals in these centers by visitors, and restrictions on 

the use of alcohol.156

Detention centers are frequently used, but primarily to house male immigrants. For a one-year 

period from June 2014–June 2015 there were a total of 32,053 individuals detained in these 

centers. The total cost for asylum detention in the 2013/14 people was £164.4 million 

(approximately US$270 million). Inappropriate use of immigration detention has cost the 

government additional sums as a result of compensation to individuals that have been unlawfully 

detained. In the period 2013–14 these compensation payments amounted to a total of £4.8 

million (approximately US$8 million).157

XI. Oversight 

There are a number of different facets to ensure that asylum laws and policy are properly 

implemented. The Home Secretary and her Ministers are responsible for the work of the Home 

Office’s immigration directorates. The Independent Chief Inspector of Borders and Immigration 

keeps under review the effectiveness and efficiency of the border and immigration functions. 

Immigration removal centers and short-term holding facilities are overseen by Her Majesty’s 

Inspectorate of Prisons and Independent Monitoring Boards.158 

Members of Parliament may also hear complaints from constituents about poor services or other 

issues by the immigration directorates and either bring them before Parliament or refer them to 

the Parliamentary and Health Services Ombudsman for investigation. The Ombudsman will 

only hear complaints from Members of Parliament, and requires the individual to attempt to 

resolve any issues with the appropriate organization directly before it will take any action.159

 

153 Id. 

154 Id. at 4. 

155 Id. 

156 Detention Centre Rules 2001, SI 2001/238, http://www.legislation.gov.uk/uksi/2001/238/made, archived at

https://perma.cc/5DWU-X94M. 

157 House of Commons Library Briefing Paper, Immigration Detention in the UK: An Overview, supra note 152, 

at 6. 

158 House of Commons Library Briefing Paper, Constituency Casework: Asylum, Immigration and Nationality, 

supra note 23, at 5. 

159 Id.; Information For MP’s, PARLIAMENTARY AND HEALTH SERVICES OMBUDSMAN, 

http://www.ombudsman.org.uk/make-a-complaint/information-for-mps (last visited Jan. 13, 2016). 
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XII. Adjustments to Process Due to Syrian Refugee Crisis 

The Syrian crisis has resulted in millions of refugees, most of whom have sought asylum in 

countries neighboring its region. The response of the UK government to the refugee crisis has 

been largely criticized as inadequate.160 While the UK accepted asylum applications from Syrian 

refugees until January 29, 2014, when the UK established the Syrian Vulnerable Person 

Resettlement Program, it did not participate in any resettlement programs and the policy was to 

provide humanitarian aid to Syria’s neighbors rather than accept recognized Syrian refugees for 

resettlement in the UK.161 At the end of 2015 the UK was the second largest bilateral donor, 

committing £1.1 billion (approximately US$1.85 billion) in aid to help refugees in Syria and 

the region.162 

As the crisis continued to develop and worsen, the government created the Syrian Vulnerable 

Persons Refugee Scheme to allow selected Syrian refugees to come to the UK. Reports from 

December 2015 state that the Syrian Vulnerable Persons Refugee Scheme has resettled 252 

Syrian nationals in the UK.163 The government aimed to resettle 1,000 Syrians under this 

program by the end of 2015,164 but figures are not yet available to show whether this target was 

met. The program targets vulnerable Syrians, prioritizing victims of sexual violence and torture, 

the elderly, and the disabled.165 The program was criticized for the limited number of people that 

it helped and on September 7, 2015, the Prime Minister announced that the program would be 

extended and up to 20,000 refugees would be resettled in the UK over the next five years. This 

program does not include refugees who are already in Europe, and the UK does not intend to 

participate in refugee relocation programs that are under development by the European Union. 

Its aim is to take the most vulnerable refugees directly from the region of Syria and the 

government is working on the logistics of doing so with local authorities and the voluntary 

sector.166 The resettled refugees will be provided with five years of humanitarian protection 

status and allowed to work as well as access public funds.167 The criteria under the program will 

be expanded to include children, particularly orphaned children if the UNHCR recommends their 

resettlement.168 Given the vast increase in costs, the international aid budget will fund the first 

year of resettlement to “ease pressure on local authorities.”169 The program selects cases from 

 

160 Refugee Crisis: Call from the Legal Community for Urgent Action, LAWYERS REFUGEE INITIATIVE, 

http://www.lawyersrefugeeinitiative.org/ (last visited Dec. 28, 2015), archived at https://perma.cc/CQB6-28H3. 

161 House of Commons Library Briefing Paper, The Syrian Refugee Crisis, SN06805, Dec. 06, 2015, at 6, 

http://researchbriefings.files.parliament.uk/documents/SN06805/SN06805.pdf, archived at https://perma.cc/G2LJBSDG. 

162 Id. at 8. 

163 House of Commons Library Briefing Paper, Asylum Statistics, supra note 11, at 3.

164 Oct. 19, 2015, PARL. DEB. (H.C.) (6th ser.) 661. 

165 House of Commons Library Briefing Paper, The Syrian Refugee Crisis, supra note 161, at 3. 

166 Id. at 3. 

167 Id. 

168 Id. at 4. 

169 Id. 
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the UNHCR’s case of registered refugees that are living in host communities in the region. 

During registration with the UNHCR the refugees may indicate that they are interested in 

resettlement under the Syrian Vulnerable Persons Refugee Scheme (VPR). The UNHCR 

identifies cases that are suitable for resettlement in the UK and refers them to the Home Office. 

The Home Office then conducts checks on the eligibility of the individual and seeks to match 

them with a place with a local authority.170

While the Syrian Vulnerable Persons Refugee Scheme has created a new method of entry for 

recognized Syrian refugees, Syrian nationals who arrive in the UK outside of this program may 

still claim asylum upon arrival. 

Syrian nationals were the fourth largest group claiming asylum in the UK in 2015, with 2,204 

applicants. The UK granted 5,457 Syrian nationals asylum at the first point of their applicant 

process between January 2012 and September 2015, and in 2015 87% of initial asylum decisions 

in Syrian cases granted permission for the applicant to remain in the UK.171 

 

170 Id. at 10. 

171 Id. at 3. 
Refugee Law and Policy: United Kingdom 

The Law Library of Congress 298

Claim at 

port of 

entry

Claim at 

designated place 

in country

Immigration Officer refers 

application to Secretary of State 

Temporary admission 

with conditions

Detained 

UKVI 

Considers 

Application 

Fast Track Process 

Suitability List 

Substance of claim 

Applicant detained 

until claim processed

Well 

Founded 

Fear of 

Persecution 

Grant humanitarian protection 

or discretionary leave 

Applicant passed 

through safe third 

country en route 

Substantive 

Claim 

Applicant faces serious risk to their 

life from torture, death penalty; 

unlawful killing; inhuman or 

degrading treatment or punishment 

Grant 

Application

Decline 

Application 

Credibility of applicant 

Prompt disclosure of facts 

Asylum Process in the 

United Kingdom 

UKVI 

Interview

If present in UK lawfully 

leave to enter automatically 

renewed until decision made 

Screened and 

fingerprinted to 

ascertain identity

Inducted and 

provided Alien 

Registration Card 

Clearly 

Unfounded 

Secretary of State 

certifies claim is 

clearly unfounded 

Removed 
The Law Library of Congress 299

Bibliography 

Constance A. Johnson 

Senior Legal Research Analyst

SUMMARY This bibliography comprises selected, English-language works on refugee and asylum law 

that were published in the last two years. The list is divided into a section on general 

works and sections focusing on Africa, the Americas, Asia and the Pacific, and Europe. 

Articles comparing two jurisdictions are listed on the basis of the firstmentioned jurisdiction.

I. General Works 

Abass, Ademola & Francesca Ippolito. Conclusions: The Future of the Regional Protection of 

Asylum Seekers, in REGIONAL APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS:

AN INTERNATIONAL LEGAL PERSPECTIVE 377–80. Ademola Abass & Francesca Ippolito 

eds. Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014 

Abass, Ademola & Francesca Ippolito. Introduction – Regional Approaches to the Protection of 

Asylum Seekers: An International Legal Perspective, in REGIONAL APPROACHES TO THE 

PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 1–18. 

Ademola Abass & Francesca Ippolito eds. Burlington, VT: Ashgate Publishing, 2014. 

 K3230.R45 2014 

Betts, Alexander. From Persecution to Deprivation: How Refugee Norms Adapt at 

Implementation, in IMPLEMENTATION AND WORLD POLITICS: HOW INTERNATIONAL 

NORMS CHANGE PRACTICE 29–49. Alexander Betts & Phil Orchard eds. Oxford: Oxford 

University Press, 2014. JZ1242.I537 2014 

BHABHA, JACQUELINE. CHILD MIGRATION & HUMAN RIGHTS IN A GLOBAL AGE. 374 pp. 

Princeton: Princeton University Press, 2014. JV6344.B43 2014 

Chetail, Vincent. Are Refugee Rights Human Rights? An Unorthodox Questioning of the 

Relations Between Refugee Law and Human Rights Law, in HUMAN RIGHTS AND 

IMMIGRATION 19–72. Ruth Rubio-Marín ed. Oxford: Oxford University Press, 2014. 

 K3275.H86 2014 

Chetail, Vincent. Armed Conflict and Forced Migration: A Systematic Approach to 

International Humanitarian Law, Refugee Law, and International Human Rights Law, in

THE OXFORD HANDBOOK OF INTERNATIONAL LAW IN ARMED CONFLICT 700–34. Andrew 

Clapham & Paola Gaeta eds. Oxford: Oxford University Press, 2014. 

 KZ6385.O94 2014 

 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 300

Dutton, Yvonne M. The Potential for Asylum Seeking by Convicted Pirates, in PROSECUTING 

MARITIME PIRACY: DOMESTIC SOLUTIONS TO INTERNATIONAL CRIMES 320–49. Michael 

P. Scharf, Michael A. Newton & Milena Sterio eds. New York: Cambridge University 

Press, 2015. KZ7212.P76 2015 

Edwards, Alice. International Refugee Law, in INTERNATIONAL HUMAN RIGHTS LAW 513–27. 

Daniel Moeckli, Sangeeta Shah, & Sandesh Sivakumaran eds. 2d ed. Oxford: Oxford 

University Press, 2014. K3240.I5789 2014 

GALLAGHER, ANNE T. & DAVID FIONA. THE INTERNATIONAL LAW OF MIGRANT SMUGGLING. 

783 pp. New York: Cambridge University Press, 2014. KZ7155.G357 2014 

Goodwin-Gill, Guy S. Current Challenges in Refugee Law, in EXPLORING THE BOUNDARIES OF 

REFUGEE LAW: CURRENT PROTECTION CHALLENGES 9–28. Jean-Pierre Gauci, 

Mariaguilia Giuffré & Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. 

 K3230.R45E97 2015 

Giuffré, Mariaguilia. Access to Protection: Negotiating Rights and Diplomatic Assurances 

Under Memoranda of Understanding, in EXPLORING THE BOUNDARIES OF REFUGEE LAW:

CURRENT PROTECTION CHALLENGES 50–89. Jean-Pierre Gauci, Mariaguilia Giuffré & 

Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. K3230.R45E97 2015 

Guild, Geoff. Terrorism and International Refugee Law, in RESEARCH HANDBOOK ON 

INTERNATIONAL LAW AND TERRORISM 470–85. Ben Saul ed. Northampton, MA: 

Edward Elgar, 2014. KZ7220.R47 2014 

HATHAWAY, JAMES C. & MICHELLE FOSTER, THE LAW OF REFUGEE STATUS. 693 pp. 2d ed. 

Cambridge, UK: Cambridge University Press, 2014. KZ6530.H38 2014 

Ineli-Ciger, Meltem. Revisiting Temporary Protection as a Protection Option to Respond to 

Mass Influx Situations, in EXPLORING THE BOUNDARIES OF REFUGEE LAW: CURRENT 

PROTECTION CHALLENGES 197–217. Jean-Pierre Gauci, Mariaguilia Giuffré & Evangelia 

(Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. K3230.R45E97 2015 

JANMYR, MAJA. PROTECTING CIVILIANS IN REFUGEE CAMPS: UNABLE AND UNWILLING STATES,

UNHCR AND INTERNATIONAL RESPONSIBILITY. 400 pp. Boston: Martinus Nijhoff, 2014. 

 KZ6530.J36 2014 

Jaquemet, Stéphane. Expanding Refugee Protection Through International Humanitarian Law: 

Driving on a Highway or Walking Near the Edge of the Abyss?, in REFUGE FROM 

INHUMANITY? WAR REFUGEES AND INTERNATIONAL HUMANITARIAN LAW 79–98. David 

James Cantor & Jean-François Durieux eds. Leiden: Koninklijke Brill, 2014. 

 KZ6530.R43 2014 

 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 301

KEENAN, SARAH. SUBVERSIVE PROPERTY: LAW AND THE PRODUCTION OF SPACES OF BELONGING. 

Your Lesbian Property Please: Refugee Law and the Production of Homonormative 

Landscapes 128–49. New York: Routledge, 2015. K487.G45K44 2014 

Kneebone, Susan. Human Trafficking and Refugee Women, in GENDER IN REFUGEE LAW: FROM 

THE MARGINS TO THE CENTRE 197–219. Efrat Arbel, Catherine Dauvergne & Jenni 

Millbank eds. New York: Routledge, 2014. K3230.R45G46 2014 

Maley, William. Humanitarian Law, Refugee Protection and the Responsibility to Protect, in 

THEORISING THE RESPONSIBILITY TO PROTECT 249–65. Ramesh Thakur & William 

Maley eds. New York: Cambridge University Press, 2015. JZ6369.T47 2015 

Mullally, Siobhán. Migration, Gender, and the Limits of Rights, in HUMAN RIGHTS AND 

IMMIGRATION 145–76. Ruth Rubio-Marín ed. Oxford: Oxford University Press, 2014. 

 K3275.H86 2014 

Orchard, Phil. Implementing a Global Internally Displaced Persons Protection Regime, in

IMPLEMENTATION AND WORLD POLITICS: HOW INTERNATIONAL NORMS CHANGE 

PRACTICE 105–23. Alexanver Betts & Phil Orchard eds. Oxford: Oxford University 

Press, 2014. JZ1242.I537 2014 

O’Sullivan, Maria. Identifying Asylum Seekers as Potential Refugees: Transfers and “Acquired 

Rights” Under the Refugee Convention, in REFUGEE PROTECTION AND THE ROLE OF LAW:

CONFLICTING IDENTITIES 122–48. Susan Kneebone, Dallal Stevens & Loretta Baldassar 

eds. New York: Routledge, 2014. KZ6530.R439 2014 

RAJARAM, PREM KUMAR. RULING THE MARGINS: COLONIAL POWER AND ADMINISTRATIVE RULE. 

164 pp. New York: Routledge, 2015. JV412.R35 2015 OVERFLOWJ34 

Schmidt, Anna. Status Determination and Recognition, in IMPLEMENTATION AND WORLD 

POLITICS: HOW INTERNATIONAL NORMS CHANGE PRACTICE 248–68. Alexander Betts & 

Phil Orchard eds. Oxford: Oxford University Press, 2014. JZ1242.I537 2014 

Scovazzi, Tullio. Human Rights and Imigration at Sea, in HUMAN RIGHTS AND IMMIGRATION

212–60. Ruth Rubio-Marín ed. Oxford: Oxford University Press, 2014. 

 K3275.H86 2014 

Scovazzi, Tullio. The Particular Problems of Migrants and Asylum Seekers Arriving by Sea, in

TOWARDS A REGUEE ORIENTED RIGHT OF ASYLUM 177–229. Laura Westra, Satvinder 

Juss & Tillio Scovassi eds. Burlington, VT: Ashgate, 2015. K3268.3.T69 2015 

SLINGENBERG, LIENEKE. THE RECEPTION OF ASYLUM SEEKERS UNDER INTERNATIONAL LAW:

BETWEEN SOVEREIGNTY AND EQUALITY. 408 pp. Portland: Hart Publishing, 2014. 

 KJE5202.S55 2014 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 302

Westra, Laura. After the Flight: International Law and the Rights of Asylum Seekers Today, in

TOWARDS A REGUEE ORIENTED RIGHT OF ASYLUM 131–75. Laura Westra, Satvinder Juss 

& Tillio Scovassi eds. Burlington, VT: Ashgate, 2015. K3268.3.T69 2015 

Westra, Laura. The Case for Asylum Seekers: Reverting to Human Rights, in TOWARDS A 

REGUEE ORIENTED RIGHT OF ASYLUM 233–69. Laura Westra, Satvinder Juss & Tillio 

Scovassi eds. Burlington, VT: Ashgate, 2015. K3268.3.T69 2015 

Westra, Laura. The Limitations of the Present International Instruments for the Protection of 

Refugees, in TOWARDS A REGUEE ORIENTED RIGHT OF ASYLUM 13–42. Laura Westra, 

Satvinder Juss & Tillio Scovassi eds. Burlington, VT: Ashgate, 2015. 

 K3268.3.T69 2015 

II. Africa 

Abass, Ademola & Dominique Mystris. The African Union Legal Framework for Protecting 

Asylum Seekers, in REGIONAL APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS:

AN INTERNATIONAL LEGAL PERSPECTIVE 19–44. Ademola Abass & Francesca Ippolito 

eds. Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014 

Berger, Iris et. al. eds. AFRICAN ASYLUM AT A CROSSROADS: ACTIVISM, EXPERT TESTIMONY,

AND REFUGEE RIGHTS. 272 pp. Athens, OH: Ohio University Press, 2015. 

 KQC567.A347 2015 

Betts, Alexander. Survival Migration: Conflicting Refugee Identites in Africa, in REFUGEE 

PROTECTION AND THE ROLE OF LAW: CONFLICTING IDENTITIES. pp. 174–202. Susan 

Kneebone, Dallal Stevens & Loretta Baldassar eds. New York: Routledge, 2014. 

 KZ6530.R439 2014 

CAMPBELL, JOHN R. NATIONALSM, LAW AND STATELESSNESS: GRAND ILLUSIONS IN THE HORN 

OF AFRICA. 220 pp. Abingdon, UK: Routledge, 2014. KQC567.C655 2014 

D’ORSI, CRISTIANO. ASYLUM-SEEKER AND REFUGEE PROTECTION IN SUB-SAHARAN AFRICA: THE 

PEREGRINATION OF A PERSECUTED HUMAN BEING IN SEARCH OF A SAFE HAVEN. 328 pp. 

New York: Routledge, 2016. KQC567.D67 2016 

Ebobrah, Solomon T. Sub-regional Frameworks for the Protection of Asylum Seekers and 

Refugees in Africa: Bringing Relief Closer to Trouble Zones, in REGIONAL APPROACHES 

TO THE PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 67–

85. Ademola Abass & Francesca Ippolito eds. Burlington, VT: Ashgate 

Publishing, 2014. K3230.R45 2014 

Khan, Fatima & Tal Schreier eds. REFUGEE LAW IN SOUTH AFRICA. 278 pp. Cape Town: Juta 

& Co., 2014. KTL2450.R43R44 2014 

 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 303

Naldi, Gino J. & Cristiano d’Orsi. The Role of the African Human Rights System with Reference 

to Asylum Seekers, in REGIONAL APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS:

AN INTERNATIONAL LEGAL PERSPECTIVE 45–65. Ademola Abass & Francesca Ippolito 

eds. Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014 

Rikhof, Joseph. International Criminal Law and Refugee Law: Lessons Learned, in PROMOTING 

ACCOUNTABILITY UNDER INTERNATIONAL LAW FOR GROSS HUMAN RIGHTS VIOLATIONS 

IN AFRICA: ESSAYS IN HONOUR OF PROSECUTOR HASSAN BUBACAR JALLOW. Charles 

Chernor Jalloh & Alhagi B.M. Marong eds. Leiden; Boston: Brill Nijhoff, 2015. 

 KQC982.I57 P755 2015 

SALAH, HANAN. PRIORITIES FOR LEGISLATIVE REFORM: A HUMAN RIGHTS ROADMAP FOR A NEW 

LIBYA. 63 pp. New York: Human Rights Watch, 2014. KSP2460.S25 2014 

Steinerte, Elina. The African National Human Rights Institutions and the Protection of Asylum 

Seekers: Existing Practices and Opportunities Through the Optional Protocol to the UN 

Convention Against Torture, in REGIONAL APPROACHES TO THE PROTECTION OF ASYLUM 

SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 87–112. Ademola Abass & 

Francesca Ippolito eds. Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014 

Wallace, Rebecca. The Protection of Asylum Seekers with Particular Reference to African 

Women: The Contribution to the Contemporary Jurisprudence, in REGIONAL 

APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL 

PERSPECTIVE 213–43. Ademola Abass & Francesca Ippolito eds. Burlington, VT: 

Ashgate Publishing, 2014. K3230.R45 2014 

Wood, Tamara. The African War Refugee: Using IHL to Interpret the 1969 African Refugee 

Convention’s Expanded Refugee Definition, in REFUGE FROM INHUMANITY? WAR 

REFUGEES AND INTERNATIONAL HUMANITARIAN LAW 179–203. David James Cantor & 

Jean-François Durieux eds. Leiden: Koninklijke Brill, 2014. KZ6530.R43 2014 

III. Americas

Anker, Deborah E. Legal Change from the Bottom Up: The Development of Gender Asylum 

Jurisprudence in the United States, in GENDER IN REFUGEE LAW: FROM THE MARGINS TO 

THE CENTRE 46–72. Efrat Arbel, Catherine Dauvergne & Jenni Millbank eds. New 

York: Routledge, 2014. K3230.R45G46 2014 

Arbel, Efrat. Gendered Border Crossings, in GENDER IN REFUGEE LAW: FROM THE MARGINS TO 

THE CENTRE 243–63. Efrat Arbel, Catherine Dauvergne & Jenni Millbank eds. New 

York: Routledge, 2014. K3230.R45G46 2014 

Barichello, Stefania. The Evolving System of Refugees’ Protection in Latin America, in

EXPLORING THE BOUNDARIES OF REFUGEE LAW: CURRENT PROTECTION CHALLENGES

149–71. Jean-Pierre Gauci, Mariaguilia Giuffré & Evangelia (Lilian) Tsourdi eds. 

Boston: Brill Nijhoff, 2015. K3230.R45E97 2015 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 304

BELLISSIMO, MARIO D. A PRACTICAL GUIDE TO CANADIAN CITIZENSHIP AND INADMISSIBILITY. 

Refugee law ed. 1 v., various pagings. Toronto: Carswell, 2015. KE4345.B45 2015 

Cantor, David James & Diana Trimiño Mora. A Simple Solution to War Refugees? The Latin 

American Expanded Definition and Its Relationship to IHL, in REFUGE FROM 

INHUMANITY? WAR REFUGEES AND INTERNATIONAL HUMANITARIAN LAW 204–24. 

David James Cantor & Jean-François Durieux eds. Leiden: Koninklijke Brill, 2014. 

 KZ6530.R43 2014 

Cantor, David James & Stefania Barichello. Protection of Asylum Seekers Under the InterAmerican Human Rights System, in REGIONAL APPROACHES TO THE PROTECTION OF 

ASYLUM SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 267–94. Ademola Abass & 

Francesca Ippolito eds. Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014 

CASABLANCA, ISABEL & GLORIA ROA BODIN. IMMIGRATION LAW FOR PARALEGALS. 4th ed. 483 

pp. Durham, NC: Carolina Academic Press, 2015. KF4819.85.C375 2015 

Churgin, Michael J. The Asylum/Convention Reugee Process in the United States and Canada, 

in HUMAN RIGHTS AND IMMIGRATION 261–77. Ruth Rubio-Marín ed. Oxford: Oxford 

University Press, 2014. K3275.H86 2014 

Freier, Luisa Feline. A Liberal Paradign Shift? A Critical Appraisal of Recent Trends in Latin 

American Asylum Legislation, in EXPLORING THE BOUNDARIES OF REFUGEE LAW:

CURRENT PROTECTION CHALLENGES 118–45. Jean-Pierre Gauci, Mariaguilia Giuffré & 

Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. K3230.R45E97 2015 

Galloway, Donald. Rights and the Re-Identified Refugee: An Analysis of Recent Shifts in 

Canadian Law, in REFUGEE PROTECTION AND THE ROLE OF LAW: CONFLICTING 

IDENTITIES 36–55. Susan Kneebone, Dallal Stevens & Loretta Baldassar eds. New York: 

Routledge, 2014. KZ6530.R439 2014 

Ghezelbash, Daniel. Lessons in Exclusion: Interdiction and Extraterritorial Processing of 

Asylum Seekers in the United States and Australia, in EXPLORING THE BOUNDARIES OF 

REFUGEE LAW: CURRENT PROTECTION CHALLENGES 90–117. Jean-Pierre Gauci, 

Mariaguilia Giuffré & Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. 

 K3230.R45E97 2015 

HAMLIN, REBECCA. LET ME BE A REFUGEE: ADMINSTRATIVE JUSTICE AND THE POLITICS OF 

ASYLUM IN THE UNITED STATES, CANADA, AND AUSTRALIA. 229 pp. New York: Oxford 

University Press, 2014. K3268.3.H36 2014 

MILLER, BANKS, LINDA CAMP KEITH & JENNIFER S. HOLMES. IMMIGRATION JUDGES AND U.S.

ASYLUM POLICY. 238 pp. Philadelphia: University of Pennsylvania Press, 2015. 

 KF4819.M55 2015 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 305

Jubilut, Liliana Lyra. Fora and Programmes for Refugees in Latin America, in REGIONAL 

APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL 

PERSPECTIVE 245–66. Ademola Abass & Francesca Ippolito eds. Burlington, VT: 

Ashgate Publishing, 2014. K3230.R45 2014 

Labman, Shauna & Catherine Dauvergne. Evaluating Canada’s Approach to Gender-Related 

Persecution: Revisiting and Re-Embracing “Refugee Women and the Imperative of 

Categories,” in GENDER IN REFUGEE LAW: FROM THE MARGINS TO THE CENTRE 264–87. 

Efrat Arbel, Catherine Dauvergne & Jenni Millbank eds. New York: Routledge, 2014. 

 K3230.R45G46 2014 

LONG, CLARA. “YOU DON’T HAVE RIGHTS HERE”: US BORDER SCREENING AND RETURNS OF 

CENTRAL AMERICANS TO RISK OF SERIOUS HARM. 44 pp. New York: Human Rights 

Watch, 2014. JV6483.L65 2014 

Musalo, Karen. A Tale of Two Women: The Claims for Asylum of Fauziya Kassindja, Who Fled 

FGC, and Rody Alvarado, a Survivor of Partner (Domestic) Violence, in GENDER IN 

REFUGEE LAW: FROM THE MARGINS TO THE CENTRE 73–97. Efrat Arbel, Catherine 

Dauvergne & Jenni Millbank eds. New York: Routledge, 2014. K3230.R45G46 2014 

Pacifico, Andrea Pacheco & Érika Pires Ramos. Humanitarian Asylum for Forced Migrants: 

The Case of Haitians’ Arrival in Brazil, in EXPLORING THE BOUNDARIES OF REFUGEE 

LAW: CURRENT PROTECTION CHALLENGES 218–39. Jean-Pierre Gauci, Mariaguilia 

Giuffré & Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. 

 K3230.R45E97 2015 

SCHOENHOLTZ, PHILP G. SCHRAG & JAYA RAMJI-NOGALES. LIVES IN THE BALANCE: ASYLUM 

ADJUDICATION BY THE DEPARTMENT OF HOMELAND SECURITY. 271 pp. New York: New 

York University Press, 2014. KF4836.S36 2014 

IV. Asia and the Pacific 

Darling, Emily. Australia’s Refugee and Humanitarian Family Reunion Programme: A 

Comparative Study with the European Union, in EXPLORING THE BOUNDARIES OF 

REFUGEE LAW: CURRENT PROTECTION CHALLENGES 323–46. Jean-Pierre Gauci, 

Mariaguilia Giuffré & Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. 

 K3230.R45E97 2015 

Davies, Sara E. The 1989 Comprehensive Plan of Action (CPA) and Refugee Policy in Southeast 

Asia: Twenty Years Forward What Has Changed?, in REGIONAL APPROACHES TO THE 

PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 325–46. 

Ademola Abass & Francesca Ippolito eds. Burlington, VT: Ashgate Publishing, 2014. 

 K3230.R45 2014 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 306

HUMAN RIGHTS WATCH STAFF. PERSECUTING “EVIL WAY” RELIGION: ABUSES AGAINST 

MONTAGNARDS IN VIETNAM. 33 pp. New York: Human Rights Watch, 2015. 

https://www.hrw.org/report/2015/06/26/persecuting-evil-way-religion/abuses-againstmontagnards-vietnam 

Jones, Martin. Moving Beyond Protection Space: Developing a Law of Asylum in South-East 

Asia, in REFUGEE PROTECTION AND THE ROLE OF LAW: CONFLICTING IDENTITIES 251–70. 

Susan Kneebone, Dallal Stevens & Loretta Baldassar eds. New York: Routledge, 2014. 

 KZ6530.R439 2014. 

Kneebone, Susan. ASEAN and the Conceptualization of Refugee Protection in Southeastern 

Asian States, in REGIONAL APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS: AN 

INTERNATIONAL LEGAL PERSPECTIVE 295–323. Ademola Abass & Francesca Ippolito 

eds. Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014 

Loper, Kelley. The Protection of Asylum Seekers in East Asian State Parties to the 1951 

Convention Relating to the Status of Refugees and Its 1967 Protocol, in REGIONAL 

APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL 

PERSPECTIVE 347–76. Ademola Abass & Francesca Ippolito eds. Burlington, VT: 

Ashgate Publishing, 2014. K3230.R45 2014 

MCCONNACHIE, KIRSTEN. GOVERNING REFUGEES: JUSTICE, ORDER, AND LEGAL PLURALISM. 

200 pp. New York: Routledge, 2014. KPT485.R43M33 2014 

Nah, Alice M. Seeking Refuge in Kuala Lumpur: Self-Help Startegies to Reduce Vulnerability 

Amongst Refugees, in THE OTHER KUALA LUMPUR: LIVING IN THE SHADOWS OF A 

GLOBALISING SOUTHEAST ASIAN CITY 146–67. Yeoh Seng Guan ed. New York: 

Routledge, 2014. HN700.6.K78O86 2014 OVERFLOWA5S 

SIMPSON, GERRY. MAKE THEIR LIVES MISERABLE: ISRAEL’S COERCION OF ERITREAN AND 

SUDANESE ASYLUM SEEKERS TO LEAVE ISRAEL. 83 pp. New York: Human Rights 

Watch, 2014. HV640.4.I75S56 2014 

V. Europe 

Ambrosini, Maurizio. Better Than Our Fears? Refugees in Italy: Between Rhetorics of 

Exclsuion and Local Projects of Inclusion, in REFUGEE PROTECTION AND THE ROLE OF 

LAW: CONFLICTING IDENTITIES 235–50. Susan Kneebone, Dallal Stevens & Loretta 

Baldassar eds. New York: Routledge, 2014. KZ6530.R439 2014 

Bauloz, Céline. The (Mis)Use of International Humanitarian Law Under Article 15(C) of the 

EU Qualification Directive, in REFUGE FROM INHUMANITY? WAR REFUGEES AND 

INTERNATIONAL HUMANITARIAN LAW 247–69. David James Cantor & Jean-François 

Durieux eds. Leiden: Koninklijke Brill, 2014. KZ6530.R43 2014 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 307

Bauloz, Céline et. al. eds. SEEKING ASYLUM IN THE EUROPEAN UNION: SELECTED PROTECTION 

ISSUES RAISED BY THE SECOND PHASE OF THE COMMON EUROPEAN ASYLUM SYSTEM. 

297 pp. Boston: Brill Nijhoff, 2015. KJE5202.S44 2015 

Bennett, Claire. Lesbians and United Kingdom Asylum Law: Evidence and Existence, in

GENDER IN REFUGEE LAW: FROM THE MARGINS TO THE CENTRE 138–56. Efrat Arbel, 

Catherine Dauvergne & Jenni Millbank eds. New York: Routledge, 2014. 

 K3230.R45G46 2014 

Björnberg, Ulla. Ambivalent Policies, Uncertain Identities: Asylum-Seeking Familes in Sweden,

in REFUGEE PROTECTION AND THE ROLE OF LAW: CONFLICTING IDENTITIES. 217–34. 

Susan Kneebone, Dallal Stevens & Loretta Baldassar eds. New York: Routledge, 2014. 

 KZ6530.R439 2014 

BOELES, PIETER et. al. EUROPEAN MIGRATION LAW. 455 pp. Portland, OR: Intersentia, 2014. 

 KJE6044.E953 2014 

Borland, Emma. Unmerited Restrictions on Access to Justice for Asylum Seekers, in EXPLORING 

THE BOUNDARIES OF REFUGEE LAW: CURRENT PROTECTION CHALLENGES 275–97. JeanPierre Gauci, Mariaguilia Giuffré & Evangelia (Lilian) Tsourdi eds. Boston: Brill 

Nijhoff, 2015. K3230.R45E97 2015 

BALDINGER, DANA. VERTICAL JUDICIAL DIALOGUES IN ASYLUM CASES: STANDARDS ON 

JUDICIAL SCRUTINY AND EVIDENCE IN INTERNATIONAL AND EUROPEAN ASYLUM LAW. 

547 pp. Boston: Brill Nijhoff, 2015. KJE5202.B35 2015 

CABOT, HEATH. ON THE DOORSTEP OF EUROPE: ASYLUM AND CITIZENSHIP IN GREECE. 257 pp. 

Philadelphia: University of Pennsylvania Press, 2014. JV8118.C33 2014 

Carrera, Sergio. Integration of Immigrants in EU Law and Policy: Challenges to Rule of Law, 

Exceptions to Inclusion, in EU MIGRATION LAW: LEGAL COMPLEXITIES AND POLITICAL 

RATIONALES 149–87. Loïc Azoulai & Karin De Vries eds. Oxford: Oxford University 

Press, 2014. KJE6044.E985 2014 

CHERUBINI, FRANCESCO. ASYLUM LAW IN THE EUROPEAN UNION. 290 pp. New York: 

Routledge, 2015. KJE5202.C476 2015 

Clayton, Gina. “The Right to Have Rights”: The European Convention on Human Rights and 

the Procedural Rights of Asylum Seekers, in REGIONAL APPROACHES TO THE PROTECTION 

OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 191–211. Ademola 

Abass & Francesca Ippolito eds. Burlington, VT: Ashgate Publishing, 2014. 

 K3230.R45 2014 

DEMBOUR, MARIE-BÉNÉDICTE. WHEN HUMANS BECOME MIGRANTS: STUDY OF THE EUROPEAN 

COURT OF HUMAN RIGHTS WITH AN INTER-AMERICAN COUNTERPOINT. 540 pp. Oxford: 

Oxford University Press, 2014. K3275.D46 2015 
Refugee Law and Policy: Bibliography 

The Law Library of Congress 308

DE HERTOG, LEONHARD. THE RULE OF LAW IN THE EXTERNAL DIMENSION OF EU MIGRATION 

AND ASYLUM POLICY: ORGANISATIONAL DYNAMICS BETWEEN LEGITIMATION AND 

CONSTRAINT. 287 pp. Oisterwijk, the Netherlands: Wolf Legal Publishers, 2014. 

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Di Pascale, Alessia. Italy and Unauthorized Migration: Between State Sovereignty and Human 

Rights Obligations, in HUMAN RIGHTS AND IMMIGRATION 278–310. Ruth Rubio-Marín 

ed. Oxford: Oxford University Press, 2014. K3275.H86 2014 

EISELE, KATHARINA. THE EXTERNAL DIMENION OF THE EU’S MIGRATION POLICY: DIFFERENT 

LEGAL POSITIONS OF THIRD-COUNTRY NATIONALS IN THE EU: A COMPARATIVE 

PERSPECTIVE. 540 pp. Boston: Brill, 2014. KJE6044.E37 2014 

Gozdecka, Dorota A. & Magdalena Kmak eds. EUROPE AT THE EDGE OF PLURALISM. 209 pp. 

Cambridge, UK: Intersentia, 2015. KJC5144.M56E967 2015 

Harvey, Colin. The International Protection of Refugees and Asylum Seekers: The Role of 

Article 3 of the European Convention on Human Rights, in REGIONAL APPROACHES TO 

THE PROTECTION OF ASYLUM SEEKERS: AN INTERNATIONAL LEGAL PERSPECTIVE 171–90. 

Ademola Abass & Francesca Ippolito eds. Burlington, VT: Ashgate Publishing, 2014. 

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Hennessy, Maria. Training and Strategic Litigation: Tools for Enhanced Protection of GenderRelated Asylum Applicants in Europe, in GENDER IN REFUGEE LAW: FROM THE MARGINS 

TO THE CENTRE 175–96. Efrat Arbel, Catherine Dauvergne & Jenni Millbank eds. New 

York: Routledge, 2014. K3230.R45G46 2014 

Ippolito, Francesca & Samantha Velluti. The Relationship Between the CJEU and the ECtHR: 

The Case of Asylum, in HUMAN RIGHTS LAW IN EUROPE: THE INFLUENCE, OVERLAPS AND 

CONTRADICTIONS OF THE EU AND THE ECHR 156–87. Konstantsin Dzehtsiarou et. al. 

eds. New York: Routledge, 2014. KJC5132.H8636 2014 

Kobelinsky, Carolina. Emotions as Evidence: Hearings in the French Asylum Court, in OF 

DOUBT AND PROOF: RITUAL AND LEGAL PRACTICS OF JUDGMENT 163–182. Daniela Berti, 

Anthony Good & Gilles Tarabout eds. Burlington, VT: Ashgate Publishing, 2015. 

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KRŪMA, KRISTĪNE. EU CITIZENSHIP, NATIONALITY AND MIGRANT STATUS: AN ONGOING 

CHALLENGE. 498 pp. Leiden, the Netherlands: Martinus Nijhoff Pubishers, 2014. 

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Martenczuk, Bernd. Migration Policy and EU External Relations, in EU MIGRATION LAW:

LEGAL COMPLEXITIES AND POLITICAL RATIONALES 69–105. Loïc Azoulai & Karin De 

Vries eds. Oxford: Oxford University Press, 2014. KJE6044.E985 2014 
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Morano-Foadi, Sonia. Migration and Human Rights: The European Approach, in

FUNDAMENTAL RIGHTS IN THE EU: A MATTER FOR TWO COURTS 115–37. Sonia MoranoFoadi & Lucy Vickers eds. Oxford: Hart Publishing, 2015. KJE5132.F89 2015 

Moreno-Lax, Violeta. Life After Lisbon: EU Asylum Policy as a Factor of Migration Control, in

EU SECURITY AND JUSTICE LAW AFTER LISBON AND STOCKHOLM 146–67. Diego Acosta 

Arcarazo & Cian C. Murphy eds. Portland, OR: Hart Publishing, 2014. 

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Moreno-Lax, Violeta. Of Autonomy, Autarky, Purposiveness and Fragmentation: The 

Relationship Between EU Asylum Law and International Humanitarian Law, in REFUGE 

FROM INHUMANITY? WAR REFUGEES AND INTERNATIONAL HUMANITARIAN LAW 295–

341. David James Cantor & Jean-François Durieux eds. Leiden: Koninklijke Brill, 2014. 

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NETTELFIELD, LARA J. & SARAH WAGNER. SREBENICA IN THE AFTERMATH OF GENOCIDE. 418 

pp. New York: Cambridge University Press, 2014. DR1313.7.A85N47 2014 

Querton, Christel. Women Fleeing Armed Conflict: Seeking International Protection in the 

United Kingdom, in GENDER IN REFUGEE LAW: FROM THE MARGINS TO THE CENTRE 220–

42. Efrat Arbel, Catherine Dauvergne & Jenni Millbank eds. New York: 

Routledge, 2014. K3230.R45G46 2014 

Phelan, Margaret & James Gillespie eds. IMMIGRATION LAW HANDBOOK. 1912 pp. Oxford: 

Oxford University Press, 2015. KD4134.A3 2015 

Psychogiopoulou, Evangelia. European Courts and the Rights of Migrants and Asylum Seekers 

in Greece, in RIGHTS AND COURTS IN PURSUIT OF SOCIAL CHANGE: LEGAL MOBILISATION 

IN THE MULTI-LEVEL EUROPEAN SYSTEM 129–53. Dia Anagnostou ed. Portland, OR: 

Hart Publishing, 2014. KJC5138.R54 2014 

SCHOLTEN, SOPHIE. THE PRIVATISATION OF IMMIGRATION CONTROL THROUGH CARRIER 

SANCTIONS: THE ROLE OF PRIVATE TRANSPORT COMPANIES IN DUTCH AND BRITISH 

IMMIGRATION CONTROL. 312 pp. Boston: Brill Nijhoff, 2015. KJC6050.S36 2015 

Schultz, Jessica. The European Court of Human Rights and Internal Relocation: An Unduly 

Harsh Standard?, in EXPLORING THE BOUNDARIES OF REFUGEE LAW: CURRENT 

PROTECTION CHALLENGES 31–49. Jean-Pierre Gauci, Mariaguilia Giuffré & Evangelia 

(Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. K3230.R45E97 2015 

Servent, Ariadna Ripoll & Florian Trauner. Asylum: Limited Policy Change Due to New Norms 

of Institutional Behaviour, in POLICY CHANGE IN THE AREA OF FREEDOM, SECUITY AND 

JUSTICE: HOW EU INSTITUTIONS MATTER 35–52. Florian Trauner & Ariadna Ripoll 

Servent eds. New York: Routledge, 2015. JN30.P627 2014 

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The Law Library of Congress 310

Singer, Debora. Falling at Each Hurdle: Assessing the Credibility of Women’s Asylum Claims in 

Europe, in GENDER IN REFUGEE LAW: FROM THE MARGINS TO THE CENTRE 98–115. Efrat 

Arbel, Catherine Dauvergne & Jenni Millbank eds. New York: Routledge, 2014. 

 K3230.R45G46 2014 

SMYTH, CIARA. EUROPEAN ASYLUM LAW AND THE RIGHTS OF THE CHILD. 250 pp. New York: 

Routledge, 2014. KJE5202.S668 2014 

Spijkerboer, Thomas. Analysing European Case-Law on Migration: Options for Critical 

Lawyers, in EU MIGRATION LAW: LEGAL COMPLEXITIES AND POLITICAL RATIONALES

188–218. Loïc Azoulai & Karin De Vries eds. Oxford: Oxford University Press, 2014. 

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Stevens, Dallal. Shifting Conceptions of Refugee Identity and Protection: European and Middle 

Eastern Approaches, in REFUGEE PROTECTION AND THE ROLE OF LAW: CONFLICTING 

IDENTITIES 73–97. Susan Kneebone, Dallal Stevens & Loretta Baldassar eds. New York: 

Routledge, 2014. KZ6530.R439 2014 

Toner, Helen. The Lisbon Treaty and the Future of European Immigration and Asylum Law, in

EU MIGRATION LAW: LEGAL COMPLEXITIES AND POLITICAL RATIONALES 14–40. Loïc 

Azoulai & Karin De Vries eds. Oxford: Oxford University Press, 2014. 

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Tsoudi, Evangelia (Lilian). Qualifying for International Protection in the EU: New 

Understandings of the 1951 Convention and Beyond, in EXPLORING THE BOUNDARIES OF 

REFUGEE LAW: CURRENT PROTECTION CHALLENGES 240–71. Jean-Pierre Gauci, 

Mariaguilia Giuffré & Evangelia (Lilian) Tsourdi eds. Boston: Brill Nijhoff, 2015. 

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Velluti, Samantha. External Aspects of EU Asylum Law and Policy – “New” Ways to Address 

“Old” Woes, in REGIONAL APPROACHES TO THE PROTECTION OF ASYLUM SEEKERS: AN 

INTERNATIONAL LEGAL PERSPECTIVE 145–70. Ademola Abass & Francesca Ippolito eds. 

Burlington, VT: Ashgate Publishing, 2014. K3230.R45 2014