Challenges arise from the understanding that a host State should, by virtue of the refugee status, accord refugees and asylum seekers favourable opportunities to earn a living through work. Although favourable treatment is not defined by the Refugee Convention, favourable employment opportunities are crucial and essential for refugee livelihood because the right to work: i is a fundamental human right that derives "from the inherent dignity of the human person"; ii includes the right of everyone to the opportunity to gain his or her good living by work; 30 and iii is a component of social justice which is based on the right to life, equality, and dignity.
Seen from this standpoint, a State cannot deny refugees or asylum seekers a right to work since it forms part of an array of basic human rights and liberties.
Asylum Policies - International Relations - Oxford Bibliographies
Chapman and others argue that fundamental human rights must, at all times, be enjoyed by "all people in all places"; 32 that is, entitlement may not categorically be restricted to citizens. Place of birth or origin cannot, at all, be given priority as far as human rights are concerned. As Wacks puts it, "the concept of human rights makes little sense unless it is understood as fundamental and inalienable".
Still, some rights can be restricted so as to protect national interests and development. In South Africa, rights that can be limited, including labour rights. They are, first, restricted in terms of section 22 of the Constitution and, secondly, are restricted in terms of "the limitation clause".
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The practice of a trade, occupation or profession may be regulated by law. On several occasions, South African courts the Constitutional Court the CC , in particular, and the Supreme Court of Appeal the SCA , in general had the opportunity to review the constitutionality of this provision as it pertains to the restriction of refugees' rights in respect of accessing the labour market.
The CC reasoned that any restrictive measures imposed on refugees and asylum seekers for the protection of national security or the broad public interest must be rational, reasonable and justifiable in terms of the limitation clause 36 or should not have "potential to impair the essential content of dignity".
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It is against this background that this article, within the context of the protection of human dignity, raises a number of issues related to the existence of legal and procedural barriers, essentially emanating from positive measures taken to protect and advance South African citizens whose social vulnerabilities are consequences of the apartheid policies. This article will illustrate that the positive measures are applied in all their severity to the rights of refugees. The article, therefore, will turn to discuss these barriers in detail after illuminating the legal position of a refugee, an asylum seeker and a migrant in South African society insofar as the right to work is concerned.
Generally, the term "refugee" is often understood to imply a person who was forced to leave his or her country of origin or habitual residence because of war or armed conflict and, due to such war or armed conflict, is unable to return. Evidently, there are two key elements on which the refugee definition is centred.
They are a well-founded fear of persecution and an absence of the protection of a country of origin. These two elements are essential as they distinguish refugees from other persons who are forced or obliged to flee due to other events, such as, fear of poverty, famine, economic crisis, and environmental degradation or natural disaster, 39 as will be discussed later when dealing with economic migrants.
Notwithstanding the refugee definition, the vulnerable situation of a refugee is further described by Mokgoro and O'Regan JJ as follows:. Refugees had to flee their homes, and leave their livelihoods and often their families and possessions either because of a well-founded fear of persecution on the grounds of their religion, nationality, race or political opinion or because public order in their home countries has been so disrupted by war or other events that they can no longer remain there.
In an effort to guard against these social vulnerabilities, the granting of asylum to a bona fide asylum seeker is imperative. A decision to grant asylum to an asylum seeker has the legal impact of entitling that person to "full legal protection". He explains that "adequate means of subsistence" does not only mean meeting the basic needs of refugees and asylum seekers, but includes their "flexibility to move, change employment, and invest in ways that can lead to a dignified life; or, at least, a life of comparable dignity to those around [them]".
With respect to employment, Landau explicitly refers to changing employment; hence a refugee is morally and legally entitled to the right to be employed and work. Though refugees are entitled to the right to work, this right is, as explained above, not subject to the freedom to choose any type of employment. This is, in practice, limited by law which explicitly indicate that a non-citizen cannot take up a particular employment 44 or may reserve employment to permanent residents only. As alluded to earlier, a restriction imposed on refugees in respect of employment is, in most cases, not absolute.
Indeed, a legislative restriction should be flexible for such restriction to be exempted from if "good cause" is shown. Flexibility would protect against a violation of the right to equality at the threshold. Indeed, by virtue of the refugee status, a refugee enjoys a wide range of civil, social and economic rights contained in the Bill of Rights, which should apply to them on a more favourable basis. As discussed further below, an asylum seeker, who is not yet formally granted asylum, enjoys fewer rights compared to a refugee.
However, no matter how fewer they are, they include the right to earn a living. An asylum-seeker is "a person whose request or application for asylum has not been finally decided on by a prospective country of refuge".
The fact that a person has officially made a request for asylum has the legal implication of legalising the asylum-seeker's sojourn as "lawfully staying" in South Africa, of differentiating him or her from other types of non-citizens in the context of applying the asylum rules to them, and of allowing him or her to access certain socio-economic rights. Given that asylum seekers are not yet recognised as refugees, their legal position is uncertain and such uncertainty places them in a far more precarious situation. It is especially important to note that asylum seekers are normally in a particularly vulnerable situation.
They are not simply physically present in the country; they are neither just visiting South Africa nor seeking greener pastures; they are within South Africa to seek a safe haven from persecutions and massive human rights violations. That said, an asylum seeker is protected by the non-refoulement principle.
For that reason, they cannot be returned or expelled unless it has been established that their applications are "clearly abusive". Should they be afforded socio-economic protection, including the right to work? To begin with, the precarious plight of asylum seekers regarding their protection is recognised under international protection, which is an intervention offered by a host State in co-operation with the UNHCR to ensure that refugee rights, notably, civil, social and economic rights, are recognised and safeguarded.
In South Africa, asylum seekers' admission to the country is regulated by the immigration framework and, once admitted, the conditions concerning their sojourn are spelled out in the refugee framework. Prior to the amendment to the Refugees Act, their sojourn was, pending the outcome of their claims, subject to conditions determined by the Standing Committee for Refugee Affairs the SCRA. In , the Refugees Act was radically revised so as to respond to the gap in the refugee framework, by prescribing the conditions of asylum seekers' sojourn and by introducing the rights that flow from that status.
On this basis, some scholars still argue that asylum seekers are, in principle, merely granted the right to stay in South Africa and not to work and study while they are awaiting to be recognised as refugees. Asylum seekers are jurisprudentially and statutorily allowed to work. The jurisprudential dimension is viewed as a major landmark in the protection of the wellbeing of asylum seekers, as elaborated on below.
It was not till the decision in the Watchenuka case , decided on 23 November , that the prohibition on asylum seekers undertaking employment and obtaining education was judicially reviewed. In its analysis, the SCA took into consideration the precarious plight of asylum seekers, particularly the fact that South Africa did not offer any humanitarian assistance to them. Accordingly, the SCA ruled that such general prohibition was unlawful and fundamentally violated the right to human dignity simply because "where an employment is the only means for the person's support" and where education offers an opportunity for human fulfilment at a critical period, the right to dignity is implicated.
As a consequence, the denial would aggravate and perpetuate their destitution and have the effect of objectifying and debasing asylum seekers in the context of compelling them to resort to crime, or to begging, or to foraging. It is essential for this article to state the facts of the Watchenuka case and, particularly, the reasoning of the decision, as the decision brought about a dramatic change in the legal treatment of asylum seekers in respect of access to the labour market and to education.
In this case, the respondent was a Congolese widow who entered South Africa from Zimbabwe with her "disabled" twenty-year-old son and who was trained and qualified as a pharmacy technician. Shortly after applying for asylum she secured a place for her son to study at a Cape Town college and she needed employment in order to support herself and her son because her savings had been depleted. She and her son were prohibited, respectively, from undertaking employment and from studying in terms of regulation 7 1 a of the Refugee Regulations Forms and Procedures of read together with the form prescribed by Annexure 3 that contained various conditions to be adhered to by an asylum seeker.
The respondent applied to the Cape High Court for an order declaring the prohibition in Annexure 3 to the regulation to be contrary to the Constitution and directing the Minister of Home Affairs to permit her and her son to be employed and to study, respectively, whilst awaiting the decision on her application for asylum.
The order was granted by the Cape High Court, not on the basis of constitutional principles but on an administrative procedural basis. The Cape High Court found that conditions relating to work and study were determined by the Minister while they could have been determined by the SCRA in terms of section 11 h of the Refugees Act. Accordingly, the Court concluded that the Minister went beyond the powers expressly conferred on him in terms of section 38 e of the Refugees Act, vis, to make regulations relating to the conditions for sojourn in South Africa.
On appeal, the SCA agreed with the court a quo that the Minister had no authority to impose the prohibition to work or study, but, nevertheless, upheld the appeal on the ground that the Court would, in granting the relief sought by respondent, have usurped the executive power.
It however ordered the SCRA to determine whether asylum seekers should be allowed to work and study pending the finalisation of an application for asylum. In affirming the prohibition in Annexure 3 to the Refugee Regulations to be indeed contrary to the Constitution, the SCA stated that "general prohibition of employment and study for the first days after a permit to sojourn in South Africa has been issued is in conflict with the Bill of Rights".
It went on to state that self-esteem and the sense of self-worth - the fulfilment of what it is to be human - is the most bound up with being accepted as socially useful. The protection of the right to dignity was found to be vital because it is an acknowledgment of the intrinsic worth of human beings and an inspiration for the recognition of other specific fundamental rights that might be threatened or violated. Pursuant to the decision in the Watchenuka case, the SCRA changed its position and allowed asylum seekers to undertake employment and education.
For example, it is reflected, to a certain degree, in the CC judgement in the Union of Refugee Women case , in which the Court dealt with the constitutionality of the prohibition of refugees rendering a security service as security service providers unless they have obtained permanent residence status.
It was fair discrimination and did not materially invade their dignity because the private security industry framework offered a reasonable measure of flexibility, allowing refugees to engage in the security service industry, on good cause shown. With reference to Articles 17 2 and 17 3 of the Refugee Convention, read together with section 27 f of the Refugees Act, the Court held that the refugee framework "grants refugees exemption from restrictive measures under certain circumstance" and demands a host State to "give sympathetic consideration to assimilating the rights of all refugees with regard to wage earning employment to those of nationals", respectively.
Plainly, these judicial opinions are illustrative. An asylum seeker is not barred from undertaking employment or engaging in self-employment and any legal restriction is to be challenged unless reasonably and rationally justified. Put differently, any limitation on the right to work, like any other right in the Bill of Rights, must be rational and justifiable, based on the values of equality, human dignity and freedom.
Navsa J pointed out that it was not rational to deny asylum seekers an opportunity to work, based on the legitimate State concern that the permission to work would be to the advantage of bogus asylum seekers. Navsa J was convinced that bogus asylum claims can be avoided only if applications for asylum are expedited. More attention will be paid to the tendency to treat refugees or asylum seekers as economic migrants.
More often refugees and asylum seekers are confused with economic migrants and the distinction between these two groups is progressively blurred by politicians. The term "migrant" encompasses a range of categories of persons, including refugees and asylum seekers. Logically, refugees and migrants are distinguished for the purpose of effectively responding to their different needs. By virtue of their non-citizen status, the State is, as an expression of the principle of being a sovereign nation, obliged to determine the conditions and terms of their sojourn.
The distinction between these groups of people is recognised in South Africa and the conditions of the migrants' stay including access to the labour market are provided for under the Immigration Act, as amended. Interestingly, the immigration framework does not make reference to either the term "migrants" or the term "economic migrants". Instead, it makes reference to "foreigners" and "illegal foreigners". While a foreigner means "an individual who is neither a citizen nor a resident, but not an illegal foreigner"; an illegal foreigner means "a foreigner who is on South African territory in the contravention of the Immigration Act".
The UNHCR distinguishes a migrant from a refugee or an asylum seeker as 'a person who, for reasons other than those contained in the legal definition of refugee, voluntarily leaves his or her country of origin in order to take up residence elsewhere.
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The reason for leaving his or her country may be the desire for change or adventure, or for joining family or other reasons of a personal nature. However, if a person leaves his or her country exclusively for economic considerations, they are economic migrants and neither refugees nor asylum seekers.
Although, in recent years, there has been an increase in the number of people who escape from environmental degradation, natural disaster and poverty or destitution, these people are defined as economic migrants and are therefore governed by the immigration policy but not the refugee policy. As a result of their economic migrant status, they are not entitled to "the full legal protection" provided in terms of the Refugees Act; rather, they are entitled to "the diplomatic protection" of their countries and cannot benefit from international protection as refugees and asylum seekers do.
This is known as the principle of reciprocity. It is from this principle that the claim of the most favourable treatment as accorded to foreign nationals derives. As previously stated, the term "migrant" covers a range of categories of all non-citizens, inter alia diplomats, investors, migrants, refugees and asylum seekers. The comprehensive definition of the term "migrant worker", incorporated in the International Convention on the Protection of the Rights of All Migrant Workers the Migrant Workers Convention , is "a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national".
Whereas foreign and national professionals alike are required to register with professional councils, only migrant workers including economic migrants are additionally and exceptionally required by the Immigration Act to apply for a work permit before engaging in any self-employment activities or wage earning employment. The rationale behind the non-applicability of these conditions is the adoption and ratification of the Refugee Convention, which has the effect of removing those restrictive measures. Regardless of this approach, employers and professional councils in South Africa extend the restrictive measures to refugees and asylum seekers.
In addition, most employers, according to CorMSA and Lanzi Mazzocchini, discriminate against refugees and asylum seekers - mainly because they are not sensitised to refugee rights. The sanction which is stipulated by section 49 3 of the Immigration Act for a first offender is a fine which the Court may deem just or imprisonment not exceeding one year. The reality is that if refugees or asylum seekers are employed, employers cannot be criminally sanctioned. It is apparent that there is a confusion regarding the applicability of the Immigration Act and the Refugees Act and employers are unable to draw a clear distinction between those two policies.
Central to this confusion is the different role players' tendency of regarding refugees and asylum seekers as economic migrants who bogusly claim to be refugees. The major problem lies in making a distinction between bogus and genuine asylum seekers before finalisation of their claims. The politicisation of the issue of refugees as economic refugees led many South Africans to erroneously view the employment of refugees and asylum seekers as taking their job opportunities away from them and being a drain on national economic resources.
The article has illuminated the difference between migrants and refugees or asylum seekers, and now turns to examine and elaborate on the accessibility of employment to refugees and asylum seekers and the legal barriers stemming from remedial -substantive equality - measures. The distinction between refugees or asylum seekers and citizens will be developed to clarify the ambivalent attitudes of the State towards the protection of these two groups' distinct but overlapping interests.
Under the apartheid system, South Africa was a deeply divided society in terms of socioeconomic settings. In redressing this, the post-apartheid Constitution vests equality of rights, privileges and benefits in citizens and implicitly grants socio-economic rights to citizens and non-citizens alike. Conversely, through an equality framework, a constitutional commitment is made to redress the socio-economic needs of citizens, with a particular focus on a section of society that has historically been severely disadvantaged by the ravages of apartheid.
Of fundamental concern is the fact that certain socioeconomic laws, policies and strategies explicitly restrict socio-economic benefits and advantages to "vulnerable people" with citizen or permanent resident status to exclusion of the refugees and asylum seekers. Although the moral commitment exists to protect humanity, it is crucial to note that a sovereign nation enjoys the prerogative power to determine the manner in which it will safeguard and preserve its resources, materials and opportunities, and the conditions under which it will distribute them with a view to protecting the humanity of foreign nationals who temporarily or permanently reside within its geographical borders.
In this respect, non-citizens are admitted into South Africa subject to conditions and terms rules mainly contained in the immigration policy, which relate to socio-economic exclusion and self-sufficiency. In the context of the exclusionary and self-sufficiency rule, the immigration policy clearly bars foreign nationals who cannot fend for themselves while staying in South Africa from admission, and authorises the deportation and expulsion of those whose financial support has depleted to such an extent that they are likely to "become a public charge".
As regards livelihood opportunities, further strict immigration rules were established regulating recruitment of foreign nationals in the labour market: foreign nationals are offered opportunities to be employed provided that, first, they are in possession of a work permit, and secondly, no suitably qualified citizen is, despite diligent search, available to fill the position. With regard to providing social welfare, the exclusionary and self-sufficiency rule undoubtedly suggest that South Africa distances itself from responding to the social vulnerabilities of destitute non-citizens, and that it is the responsibility of their countries to ensure the wellbeing of their citizens when staying in South Africa.
The pertinent question is: whether or not the exclusionary and self-sufficiency rule should apply to refugees and asylum seekers. If the matter is conceptually analysed within the limits of immigration policy theory, one would conclude that refugees and asylum seekers should also be excluded from the socio-economic domain on the basis of their foreign national status.
However, in terms of refugee policy theory, they are not. First, the Refugees Act exempts them from the said rule through mechanisms that accord to them basic rights contained in the Bill of Rights, including socio-economic rights. Secondly, the Refugees Act, it is argued, is an urban asylum policy that encourages a group of refugees and asylum seekers mostly poor and vulnerable to self-settle and integrate into South African society.
Work, whether gainful employment or self-employment, becomes imperative, as without work social integration is impossible. Work is essentially necessary for the restoration of hope in a country where the State does not offer financial support for the promotion of initial integration of refugees. The integration of refugees at State expense was rejected by South Africa, with the tabling of the Green Paper on International Migration in relation to the Refugees Act. It should be borne in mind that the post South African society bases its legal and political morality on the notion that the restoration of dignity, advancement of equality in rights, and promotion of social, sustainable development would be achieved only if the distribution of wealth and advantages is re-engineered and re-arranged to benefit the poor and the most desperate citizens.
Thus, the closing socio-economic gap between the previously advantaged and the historically disadvantaged came to be at the forefront of South Africa's efforts and is constitutionally sound. Positive State measures to remove the legacy of apartheid are the State's core mandate. The mandate is drawn from the substantive equality clause, which reads as follows: "Equality includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. Legislative measures that were taken to respond to inequalities or disparities in employment, occupation and income within the national labour market include the EEA and the Public Service Act of the PSA. These labour laws were enacted to protect persons or categories of persons disadvantaged by unfair discrimination or apartheid policies.
A disadvantaged person is described by the African National Congress ANC , in its Reconstruction Development Programme the RDP as a person who was confronted by serious social and economic problems; who "struggled against the apartheid system over decades, to improve his or her life, to restore peace", and to contribute to the realisation of a more just society; and who suffers from poverty "as direct result of the apartheid policies and their collapse". Because all sectors of socio-economic development were affected by apartheid, social redress cut across all sectors of the economy in order to advance and protect the previous disadvantaged communities, in particular, and to ensure equal opportunity to all, in general.
An absence of integrating refugees in essential socio-economic distributive laws fundamentally affects refugees and asylum seekers as regards accessing various social opportunities offered by both the private and public labour markets. This is true, because the preferential treatment accorded to disadvantaged groups is, in the private labour market, protected by the EEA, and, in the public labour market, by the PSA. These employment affirmative measures are essential for nation building and re-engineering South Africa's economy so as to offer all citizens the opportunity to contribute to it productively.
Contextually, the term "designated group" refers to Black people, women and people with disabilities and the term "Black people" is a generic term which means "Africans, Coloureds and Indians". It follows that refugees and asylum seekers would, perhaps, enjoy the same treatment accorded to previous advantaged group in the private labour market. Whereas the EEA gives first priority to designated groups, the PSA restricts eligibility to access the public labour market to citizens and permanent residents.
Refugees and asylum-seekers are not permanent, but rather temporary, residents. It follows that they are not eligible to work in the public sector. The article accordingly has illustrated the measures taken in the spirit of redressing the past iniquities within the labour dominion; it highlighted the legal and political feelings towards non-citizens, including the dilemma faced by South Africa; and it has finally demonstrated how positive measures are prejudicial to refugee rights.
The article now turns to illuminate the distinction between formal equality and substantive equality and to illustrate that refugees and asylum seekers are predominantly protected in terms of the former. Although all human being are equally entitled to the fundamental rights and freedoms entrenched in the UDHR, ICCPR and ICECR as well as the South African Constitution, rights and benefits are, at national level, distributed either within the formal equality framework or the substantive equality framework or both.
These frameworks of equality are entrenched in the South African Constitution. They are easy to distinguish in theory but hard to distinguish in practice. They are here reviewed in a theoretical approach with specific reference to refugees. As a starting point, the Refugee Convention requires State Parties to entitle refugees to treatment at least as favourable as that accorded to non-citizens with respect to the right to work.
Favourable treatment implies that they should be given differentiated treatment tailored to meet their vulnerabilities and needs. Favourable treatment can be said to be framed in substantive equality discourse. Yet, the Refugee Convention is couched in the non-discrimination approach; an approach that demands provision of equal protection and equal benefit of the law.
This kind of equality is conceived in terms of the formal equality framework and is contained under the constitutional equality clause. In other words, they do not enjoy equal and full rights and benefits in the same fashion as a designated group does. Sachs points out that the equality clause does not place a positive obligation on the State to improve the quality of life of all people so as to live a dignified life; that is, in this case, to improve people's living conditions by availing them of equal employment opportunities.
He indicates that a positive obligation to do so is imposed by socioeconomic rights. It is within this context that favourable treatment of refugees is bypassed or overlooked in the context of transformative constitutionalism. Both formal equality and substantive equality feature heavily in the implementation of affirmative action measures with respect to promoting employment equity. Formal and substantive equality are distinct in nature, and these distinct are well captured in the Stoman v Minister of Safety and Security and others case in which the Labour Court held that the EEA seeks to attain substantive equality "as opposed to mere formal equality".
Though designated groups and refugee groups live in similar social conditions, they are not in equal positions. A different approach towards responding to their needs is unquestionably crucial. However, our concern is the central conflict arising from the remedial measures taken by South Africa to ensure that precedence is given to the historically disadvantaged in the national labour market. With regards to the promotion of equality in a substantive way, remedial measures are applied to the detriment and prejudice of refugee rights.
Regardless of this, by analogy, the CC in the Minister of Finance and others v Van Herden case indicated that such prejudice is constitutionally justifiable.
Asylum & the Rights of Refugees
The Convention places a number of restrictions on eligibility for refugee status. Article 1 D excludes individuals who, at the time of the Convention, were already receiving protection or assistance from another UN organ or agency. Individuals who voluntarily avail themselves of the protection of their country of nationality or habitual residence or individuals who have received protection in a third country are also not considered refugees. See Convention relating to the Status of Refugees, art.
Refugee law and international human rights law are closely intertwined; refugees are fleeing governments that are either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the context of an armed conflict, refugee law also intersects with international humanitarian law. Non-refoulement is universally acknowledged as a human right. Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a prohibition against refoulement.
Belgium and Greece [GC], no. The principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. See, e. There are two important restrictions to this principle. At the regional level, the rights to seek asylum and freedom of movement can be found within the text of the same article.
Freedom of movement, however, is also a key right for refugees within their host country. Article 26 of the Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. In such countries, refugee warehousing — in which refugees are confined to refugee camps, thereby restricting their access to employment and education — is commonly practiced.
Countries such as Kenya and Ethiopia specify in their national laws that the movement of refugees throughout the country may be restricted and that refugees may be limited to living in designated areas, namely refugee camps. National Refugee Proclamation, No. The right to liberty and security of the person is important in the context of how asylum seekers are treated within the intended country of refuge. The national laws of several countries provide for the detention of asylum seekers at one point or another during the adjudication of their claims.
The detention of asylum seekers is a contentious issue because of the conditions found in the detention facilities of several countries. This is particularly an issue in Greece, a country overwhelmed by the number of asylum seekers it receives, many of whom use Greece as a port of entry as they try to access other European countries.
See Dublin Regulation, art. As a result, many of these asylum seekers are returned to Greece to have their claims adjudicated. Human rights organizations including Amnesty International have reported on unsanitary and over-crowded conditions in Greek detention centers. Amnesty International, Annual Report , Additionally, asylum seekers have claimed that they did not have access to a UNHCR representative or information about how to apply for asylum while in detention.
In respect of this right, a number of countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her. See 8 U. Consequently, these domestic laws do not preclude dependent relatives from making their own asylum claims. The definition of a dependent relative, however, varies by the cultural notions of family prevalent in the State party.
In the U. The 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. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the same treatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals.
Despite these rights being protected in the Convention and under human rights treaties, refugees in various countries do not enjoy full or equal legal protection of fundamental privileges. Ethiopia, for example, made reservations to Article 22 public education and Article 17 wage-earning employment , treating these articles as recommendations rather than obligations. Although not a party to the Convention, Lebanon is host to a large population of refugees, predominately Palestinians.
Restrictive labor and property laws in Lebanon prevent Palestinians from practicing professions requiring syndicate membership, such as law, medicine, and engineering, and from registering property. The adjudication of asylum claims is reserved to individual States. Although some States, namely those that comprise the Council of the European Union, have made an effort to adopt a uniform asylum system, international and regional bodies lack the jurisdiction to adjudicate individual asylum claims.
International and regional bodies do, however, adjudicate claims asserting violations of the human rights of refugees and asylum seekers. Despite differences across, and sometimes within, States, there are a number of commonalities between the asylum procedures of States who have national frameworks for granting refugee status.
The following is a general and simplified explanation of these procedures. In order to understand how these procedures operate it is necessary to first identify how certain key terms in the Convention are defined within the domestic legal systems of particular States. Qualification Directive, art. The persecution at issue also does not need to have been committed by a State actor; persecutory acts committed by non-state actors may qualify under the Convention where the State is unwilling or unable to protect the individual claiming refugee status.
Typically, refugee status determinations or asylum adjudications are conducted by an official from a designated government department or agency.
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