Common European Asylum System in a Changing World

The 1951 Convention also protects other rights of refugees, such as the rights to education, access to justice, employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties – Article 16 (refugees are to be granted equal access to the courts), Article 17 (refugees are to be afforded the same access to wage-earning employment as foreign nationals), Article 13 (refugees are to be afforded the same rights to moveable and immoveable property as foreign nationals). Claiming asylum In general, the adjudication of asylum claims is reserved for individual States based on the principle of procedural autonomy. Nevertheless, some States, namely Member States of the European Union, have made an effort to adopt a uniform asylum system (CEAS – see below). 4 1.3 Council of Europe The Council of Europe was established in 1949 as a regional integration organization with the aim to bring together the states of Europe to promote the rule of law, democracy, human rights, and social development. For this purpose, it adopted the European Convention on Human Rights (ECHR) in 1950. The European Court for Human Rights (ECtHR) was set up under Article 19 of the ECHR to ensure that the states observed their obligations under the Convention. Regarding the refugee law the ECHR contains few provisions expressly mentioning foreigners or limiting certain rights to nationals or lawful residents (for example, Articles 2, 3, and 4 of Protocol 4 to the ECHR and Article 1 of Protocol 7). Nevertheless, in practice, migration and asylum issues have generated a complex body of ECHR case law. These cases are mostly related to articles 3, 5, 8 and 13 of the ECHR. (See selected cases in Chapter…) Article 1 of the ECHR requires states to secure the ECHR rights to “everyone within their jurisdiction” . A State’s jurisdiction is primarily territorial (with some exceptions), this means that the human rights enshrined in this Convention must be respected by states and their authorities also vis-a-vis foreigners unless they are limited to nationals or lawful residents. 5 Article 3 of the ECHR stipulates: No one shall be subjected to torture or to inhuman or degrading treatment or punishment … Article 3 of the ECHR is relatively general and it does not deal directly with asylum or refugees. Nevertheless, it is the key provision which is used to interpret the scope and limits of international refugee protection. The ECHR is not a special international instrument concerned with the protection of refugees as such nor is Article 3 thereof, but this article 4 In the case of States who host large number of refugees but who are not a party to the 1951 Convention and 1967 Optional Protocol or who do not have laws to address asylum claims, refugee status determinations are carried out by field offices of the United Nations High Commissioner for Refugees (UNHCR). (Some countries in the Middle East and Asia) 5 See The Guide on Article 1 of the Convention – Obligation to respect human rights – Concepts of “jurisdiction” and imputability, Council of Europe/European Court of Human Rights, 2019

12