3. AFGHAN ASYLUMSEEKERS IN EUROPE
Once Afghans fleeing their country’s devastating security and human rights situation reach Europe, they have the right to lodge an asylum claim. This chapter provides an overview of the asylum system in European countries, the process by which rejected asylum-seekers are returned to Afghanistan, and the increasing numbers of returns from Europe to Afghanistan.
SEEKING ASYLUM IN EUROPE Everyone who leaves their country of origin has the right to seek and enjoy asylum from persecution, in line with the principles set out in the Universal Declaration of Human Rights.106 Furthermore, the binding international legal principle of non-refoulement means that European countries cannot transfer anyone to a place where they are at a real risk of serious human rights violations – such as persecution, or torture and other cruel, inhuman, or degrading treatment or punishment. The principle of non-refoulement has been codified in the Convention Relating to the Status of Refugees (Refugee Convention)107 and numerous international human rights instruments;108 and additionally forms part of customary international law and therefore applies to all states, regardless of whether they are parties to the relevant treaties. 109 As enshrined in the Charter of Fundamental Rights of the European Union, the principle of non-refoulement must be observed in respect of all removal, expulsion or extradition procedures, irrespective of whether a person has been formally recognised as a refugee or has formally submitted a request for international protection. 110 EU law differentiates between refugees (as defined in the Refugee Convention) and beneficiaries of subsidiary protection, who do not fall within the Convention’s remit but who deserve protection because they would be at risk of serious harm in their country of origin.111 A third category – humanitarian protection – UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), http://www.refworld.org/docid/3ae6b3712c.html, Art. 14(1). 107 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, http://www.refworld.org/docid/3be01b964.html, Art. 33(1). 108 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, [1987] 1465 U.N.T.S. 113, p.85, Art. 3(1). In addition, the United Nations Human Rights Committee has affirmed that non-refoulement obligations arise in respect of a real risk of serious human rights violations of certain rights protected in the International Covenant on Civil and Political Rights. 109 UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994; UNHCR, Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 15; UNHCR ExCom, Conclusion No. 6 (XXVIII) Nonrefoulement, 28th Session, 1977, para. (a); Sir Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the Principle of NonRefoulement: Opinion,” in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (edited by Erika Feller, Volker Türk and Frances Nicholson, Cambridge University Press, 2003), para. 216. 110 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, http://www.refworld.org/docid/3ae6b3b70.html, Art. 19(2). 111 European Union: Council of the European Union, 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 (recast), 20 December 2011, OJ L. 337/9-337/26; 20.12.2011, 2011/95/EU, http://www.refworld.org/docid/4f197df02.html. 106
FORCED BACK TO DANGER ASYLUM-SEEKERS RETURNED FROM EUROPE TO AFGHANISTAN Amnesty International
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