Several states across the globe have been granting social, economic, cultural and political protections to individuals and groups of people fleeing persecution, torture and wars. The term asylum and refugee are not unique in contemporary politics (IJRC, 2018). The idea of states granting political asylum began during the Second World War. The Universal Declaration on Human Rights of 1948 granted asylum rights to individuals fleeing their nations due to war, persecution or torture. The first group of individuals granted asylum status were those fleeing the Nazi persecution during the rise and before the fall of the Nazi regime (IJRC, 2018). An asylum seeker is a person who abandons his country and applies for protection in a foreign nation as a refugee. As such, this paper focuses on the rights of asylums, problems faced by asylums and how to improve the status of those seeking sanctuaries in Australia.
The United Nations High Commission for Refugees through its convention and protocol relating to the rights of refugees defines who a refugee is and list the fundamental rights of refugee. Previously, the 1951 Convention had a limited scope as it covered the events before January 1st 1951 and within Europe (UN, 1951). The 1967 Protocol widened the scope of the policy and gave it a worldwide coverage (UN, 1967). According to the convention, a refugee is a person who is outside his/her country and is unwilling or unable to return due to fear of being subjected to persecution because of their race, nationality, religion, membership of a particular social group or political opinion. Consequently, the convention allows such individuals to seek asylum status in other countries for protection of their fundamental human rights (Beyani, 2013). United Nations defines human rights as moral principles that describe specific standards of human behaviour, which are protected as natural and legal rights local, and international law. Human rights are inherent in all people regardless of race, sex, nationality, language, ethnicity or alternative status (UN, 1948). The UN conventions are considered laws and are respected by all members’ countries hence becoming international laws. The laws regulate how nation treat asylums seekers before granting them refugee status.
The Rights of Asylum Seekers
The increasing number of asylum seekers and refugees Europe and America has risen rapidly due to political instability in some parts of Asia and their proximity to the European and American shores. The swelling number of refugees has created some human rights violation. However, Council of Europe Pub (2000) accentuate that the international created a provision for respect of individual rights by countries. Asylum seekers do have rights just like citizens living in their home countries. Human rights belong to each person, whether or not a citizen of that particular country. First, refugees have the right not to be subjected to arbitrary incarceration, cruelty, torture, inhuman treatment or punishment (Talley, 2015). Secondly, the asylum seekers in Australia have the right to repeal obligatory detention policies.
Thirdly, the Australian laws grant asylum seekers the right to challenge in court the legality of their confinement. The Europe Convention on Human Rights (UCHR) allows asylum seekers to have legal representation in courts and challenge any decision to detain or deport them. Fourth, asylum seekers have the right to education, work, mental and physical healthcare. The right to work is consistent with Universal Declaration on Human Rights, which came into force after its adoption in 1948 after the end of the World War 2. The UN coined the policy document to protect the rights of the Europeans and other western citizens who underwent torture and maltreatment. The primary goal of adopting the policy was to create an international legal framework to protect those displaced from their countries. Consequently, the policy granted equal rights to both citizens and non-citizens.
In addition, child asylum seekers are refugees are eligible for special protection. The Australian Human Rights Commission (AHRC) guideline provide that the best interest of a child must be given primary consideration at all times. Children refugees are authorised to get humanitarian assistance and tracing of family members in other countries or continents (IJRC, 2018). Therefore, the detention of a child is highly prohibited, and if done, it should be for the shortest time possible (Talley, 2015). When asylum seekers and refugees are within the Australian jurisdiction, the Australian government have a responsibility to ensure that their rights are protected according to the provisions of the international treaties (UCHR, 2018). Some of the treaties include International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights, the Convention against torture and other cruel, inhuman treatment (CAT) and the Convention on the Rights of the Child (Justice.org, 2018). Based on these conventions, the Australian authorities ensure that asylum seekers who meet the necessary conditions for a refugee are granted sanctuary before they are resettled in countries where they can feel safe and secure. The obligation by states not to return asylum seekers or refugees is called non-refoulement (IJRC, 2018).
Moreover, both domestic and regional courts interpret the rights to life and freedom from torture to include a prohibition against refoulement. For instance, in the case of R (on the application of) ABC (a minor) (Afghanistan) Claimant and Secretary Of State for the Home Department (2011) and Case of M.S.S. v. Belgium and Greece (21st
January 2011) (IJRC, 2018). In first cases, despite the asylum seeker having committed crimes against humanity, which the European Convention on Human Rights prohibits, the High Court Of Justice Queen’s Bench Division Administrative Court upheld the principle of non-refoulement, and the claimant was granted a stay in the UK, and his case reviewed. In the subsequent case, the European Court of Human Rights blocked the repatriation of the applicant to Greece where he was initially registered as a refugee before entering Belgium (IJRC, 2018). The court determined that no country must return a refugee who feels that his return to Greece may pose a threat to his life. The applicant was escaping Taliban oppression (IJRC, 2018). Therefore, the court established that the principle of no-refoulement does not only include the return of individuals but also mass expulsion of refugees. The jury noted that each European Commission member country has the duty not to repatriate individuals who face a real risk of human rights violation under ICCPR, CRC and CAT, and not to send asylum seekers to countries where they would face the real risk of rights violation based on the above instruments (IJRC, 2018).
Furthermore, the African Charter for Human Rights (Banjul Charter) and the American Convention on Human Rights permits people to seek asylum and freedom of movement. The right to seek asylum and freedom of movement relates closely since the inability to return to the home country is a prerequisite qualification for asylum claim while the ability to leave the home country is a basis for claiming refugee status (). Further, the 1951 conventions allow refugees to choose their places of residence and freedom to move freely within those territories unless there is a compelling risk of national security. Therefore, the domestic laws and the international laws are consistent in implementing the refugee’s right to liberty and security by the detention of refugees and asylum seekers at common points. However, despite the existence of an established legal framework for protecting refugees and asylum seekers, there still exist complication and challenges that refugees still.
Human Rights Problems Faced By Asylum Seekers and Refugees in Australia
Since 1990, asylum seekers in the United Kingdom have been faced with increasing human rights restrictions (Talley, 2015). The asylum seekers in the UK are restricted from appealing adverse asylum decisions, heightened procedures with little consideration to repatriation, use of non-suspensive appeals where asylum seekers are returned to their countries as they continue their appeal, detention of asylum seekers for administrative reasons, removal of income support and limited access to medical treatment (Tazreiter, 2010).
The problems that the refugees face are in line with the discontent that Hannah Arendt proposed through his works “The Origin of Totalitarianism ” and “The Right to Have Rights” (Arendt, 1958). Arendt was sceptical about the idea of universal suffrage of human rights by existence. Her worry was the process by which these rights were guaranteed. Hannah being a former refugee running away from the Nazi oppression in Germany, she had traumatising experience in detention and refugee camps despite the existence of the human right laws and bodies enforcing the laws. Hannah concludes in her theory that access to fundamental rights did not only require a person to be an asylum seeker but also a citizen (Arendt, 1958). Although Arendt was granted political asylum in the United States just before the Universal Declaration on Human Rights in 1948, she was not granted citizenship in America Arendt, 1958. She quickly became sceptical and noted that any international approach to protection of human rights still relied on the willingness of the member countries to enforce the conventions (Arendt, 1958). That is, to protect every person rendered unprotected by losing his or her national affiliations (UCHR. (2018). The refugee’s crisis after the Second World War taught Arendt that human beings could exist in stateless societies, physical isolated from the political community hence turned into abstractions (Arendt, 1958). Surprisingly, the Americas attitude change towards immigrants in the recent history many what Arendt referred to as the last hope. The American change in attitude may create a new stage where the ability to demand and claim rights become possible for everyone.
Surprisingly, despite the existence of laws governing rights of refugees, asylum seekers have faced numerous challenges while seeking for sanctuary in Australia. For instance, hundreds of children refugees were held in concentration camps for long periods. One famous example is where a Cambodian boy was detained for five and a half years (Doherty, 2017). Despite the existence of CRC, Australian authorities detained a child for a prolonged period in remotely located detention camps, which adversely affected his mental health and fundamental rights (Beyani, 2013). The detention of children can only be used as a measure of last resort and for the shortest time possible (Tazreiter, 2010). In addition, Australian mandatory detention laws have subjected asylum seekers to prolonged detention and with limited right to appeal such detentions (ACHR, 2018). Besides, Roth (2018) confirms that the authorities transferred some asylum seekers to offshore concentration camps in other nations such as Nauru and Papua New Guinea where they were inaccessible to Australian refugee determination status. Even though these facilities were closed, some refugees are still being processed offshore on Christmas Island.
Likewise, some asylum seekers were issued with temporary permits preventing them from travelling to meet their families or bring their families to Australia. This led to the separation of unaccompanied children from their families, which is against children rights to parental care and love (Humphrey, 2018). Although the separation of families was unfamiliar, the US Non-Zero Tolerance Policy to illegal immigrants has seen children separated from their families (Doherty, 2017). However, such separations have negative social and psychological impacts on children. For instance, in 2002, a 14-year-old boy in immigration detention camps in Woomera attempted suicide four times (AHRC, 2018). It is after such attempts that the psychiatrist pleaded with the authorities to release him and his mother from the detention camps. Two years later, the family obtained refugee status and happily lives with his family in Australia. As such, these problems faced by refugees confirms Arendt fears of the right to have a right is to have rights. The implementation of these policies still depends on the willingness of countries to implement the international convention. Arendt advocates for political autonomy and a universal community where each person has equal rights despite their national affiliation.
The refugee crisis has led to the violation of fundamental human rights. Compulsory detention laws and separation of children from their families has adversely affected children development. As such, it is essential for nations to consider the impacts of laws on human rights, respect human rights when developing laws while providing a series of remedies for asylum seekers and refugees (AHRC, 2018). Although violation of the rights of refugees and asylum seekers still exist, the current convention has led to the betterment of human lives as compared to the refugee crisis during the pre-war years.
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