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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 192
June 4, 2005

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Star Law Analysis

How does an asylum seeker differ from a refugee?

Barrister Harun ur Rashid

The term "asylum seeker" is to be differentiated from that of "a refugee". Refugee is a person who comes within the definition of a refugee under the 1951 UN Convention Relating to the Status of Refugees. It is the legal "Bible" to which a reference is made as to whether or not, a person falls under the category of a refugee.

The core elements of a refugee under the UN Convention is: (a) the person must be outside the country of his/her nationality, (b) the person is unable to return to his/her home land because of the lack of protection in the country, (c) such inability or unwillingness to return is caused by a well-founded fear of being persecuted and (d) persecution feared is based on race, religion, nationality, membership of a particular social group or political opinion.

In case of doubt whether a person is a refugee or not, countries refer the matter to the UN High Commissioner for Refugees (UNHCR) for a decision and largely the countries of refuge abide by the decision.


Right of Asylum
The term "asylum" has been referred to in many human rights instruments. The 1948 Universal Declaration of Human Rights in its Article 14 states: " everyone has the right to seek and enjoy in other countries asylum". Article 13 states that "everyone has the right to leave any country , including his own and to return to his country".

An asylum seeker may not be considered a refugee because the person does not fall within the definition of the Convention. Although the person concerned may not strictly fall under the term "refugee", the asylum seeker does not wish to go back to his/her country of origin because of harassment or some other concern for security of his/her life. In such circumstance, the person concerned may seek asylum in a foreign country and will, be designated as an asylum seeker.

Definition of Asylum
The definition of asylum was adopted by the Institute of International Law in 1950 and it reads as follows " Asylum is the protection which a state grants on its territory or in some other place under the control of its organs to a person who comes to seek it."

The International Court of Justice in the Asylum case in 1950 observed that in case of asylum the receiving state " withdraws the offender from the jurisdiction of the territorial state and it constitutes an intervention in matters which are exclusively within the competence of the receiving state."

The concept of asylum has further been elaborated by the 1967 Declaration of Territorial Asylum. Under the Declaration, the granting of asylum is considered a humanitarian act and it cannot be regarded as unfriendly to any other state.

In Latin America, the concept of asylum has been reaffirmed in the 1954 Convention on Territorial Asylum. All the Latin American countries agree that it is the sovereign right to grant a person asylum as the receiving state deems it fit and proper. The duty of other states is to respect the right of asylum and not to expel the person who seeks asylum.

In recent times, the President of Ecuador resigned and took asylum in the Embassy of Brazil of the Ecuador's capital city (Quito) because of popular protest against him. Brazil granted asylum to the former President of Ecuador. Ordinarily such case falls under "diplomatic asylum" because the person seeks protection of the Embassy of a foreign country.

photo : tribuneindia.com

The noted case of diplomatic asylum was between Peru and Colombia. Haya de la Torre, after the unsuccessful revolution in Peru, took protection of the Colombian Embassy in Peru. Peru did not agree to grant safe passage of Torre to Colombia. Colombia took the matter to the International Court of Justice and the Court in 1951 ruled that under the 1928 Havana Convention of Asylum, Colombia was not obligated to hand over Torre to Peru. Later they settle the dispute and allowed Torre to leave Peru.

In South Asia former Pakistan's Prime Minister Benazir Bhutto sought asylum in UAE and she is living there since 1999 because she fears that she will be harassed by the Musharraf government. Taslima Nasreen from Bangladesh took asylum in Sweden when she thought that her life was in danger..

Dictator of Ethiopia Col. Mengistu Haile Mariam had to flee because of popular revolt in 1991 and took asylum in Zimbabwe where he now lives. Dictator Idi Amin of Uganda took asylum in Saudi Arabia and died there a few years ago.

By 1998 the number of asylum seekers in Europe stood to 332,800. Approximately 40% of them are applicants from Balkan countries due to ethnic wars in Bosnia, Kosovo and Croatia.

The term "asylum seeker" is much wider than that of a refugee. An asylum seeker could be a refugee if he/she satisfied the criteria laid down by the 1951 Refugee Convention. If not, the person could be categorized as asylum seeker. Asylum consists of (a) to admit a person, to allow that person to remain in a foreign country, (b) not to expel or extradite or prosecute that person and (c) to receive protection of the receiving country as long as the person wishes. Asylum is a fundamental human right and the right protects human dignity.

The author is former Bangladesh Ambassador to the UN, Geneva.


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