Claudia Pretto PhD Costitutional Comparative Law Legal consultant , indipedent researcher

1. Claudia Pretto PhD Costitutional Comparative Law Legal consultant , indipedent researcher claudia.pretto.cp@gmail.com THE REFUGEE DEFINITION

2. ? Who is a Refugee ? ? ?

3. MIXED FLUXES

4. Legal frameworkand connection with REFUGEE LAW Universal Declaration of Human Rights Geneva Convention relating to the Status of Refugees (1951 Refugee Convention) Protocol 1967 relating status refugees Vienna Convention on the Law of Treaties (VCLT)( art 31) OAU Convention governing the specific aspects of refugee protection in Africa (1969) Declaration of Cartagena, 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ECHR ( ECtHR case law, article 3, 8) CEAS (INTERNATIONAL PROTECTION, ECJ case law) National law ( example: humanitarian protection/temporary protection) UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979 UNHCR Guidlines 4

5. CG VCLT ECHR Non Refoulment CAT CFR SAR UNHCR NonRefoulement • 1951 GC ( art 33) • CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ( art 3) • ECHR (1950 European Charter of Human Rights art 1, 3, 13) • VCLT ( Vienna Convention on the Law of Treaties art 31) • CFR ( European Charter of Fundamental Rights, part of Lisbon Treaty Arts. 18, 19 ) • SAR • UNHCR guidelines and position

6. Territorial scope • Protect the individuals • Responsibility ↔jurisdiction • State’s obligations under international law extend beyond its physical territory • -UN Human Rights Committee, De Lopez v. (52/1979): ‘within its territory and subject to its jurisdiction’ - ECHR, Cyprus v. Turkey “all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad” • Refugees’ Return/Refoulment prohibited unconditionally, 1951 Convention, Art. 33 (1)

7. A person who “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..“ Following modifications: Art.1 A. 2 and 3, New York Protocol (1967 Art. 1. A. 2, Geneva Convention (1951)

8. INCLUSION Well founded fear -Subjective element -Objective element Persecution -State /non-State agents’ of persecution Nexus to a ground -Race, religion, nationality, membership of a particular social group, political opinion -Credibility assessment Outside country of nationality/residence ‘refugee sur place’ Ratione personae Ratione loci Ratione temporis DEFINITION

9. DEFINITION -To be out of the national country or the abitual residence country di nazionalità o di residenza abituale -Impossibility to find protection -Well founded fear of persecution -The nature of persecution -The reason of persecution: race, religion, nationality, member of e sepcial group , political opinion

10. The objective element Risk of persecution actuality : future and past analisys there is no strict need for persecution that occurred in the past persecution or direct threats of persecution which took place in the past are a serious indication of the well-founded fear of future persecution The fear of persecution must be referred also to the people who want to avoid getting into a situation where they may be persecuted (UNHCR Handbook, par. 45) - ex.: demonstration of sexual orientation or political thought

11. PERSECUTION Nessuna definizione vincolante di persecuzione. Manuale DSR UNHCR, para. 51 “Dall’art.33 della Convenzione del 1951 si può dedurre che ogni minaccia alla vita o alla libertà per ragioni di razza, religione, nazionalità, opinioni politiche o appartenenza ad un determinato gruppo sociale costituisce persecuzione. Altre violazioni gravi di diritti dell’uomo costituirebbero egualmente persecuzioni” Persecuzione dipende dalle circostanze del singolo caso. 11

12. CREDIBILITY ASSESSMENT • Multidisciplinary approach • Share duty • COI • Sufficiency of details and specificity • Internal consistency of the oral and/or written material facts asserted by the applicant • Consistency of the applicant’s statements with information provided by family members and/or witnesses • Consistency of the applicant’s statements with available specific and general information • Applicability of the credibility indicators and the individual and contextual circumstances of the applicant • Plausibility • Demeanour

13. Risk of persecution: Well founded fear test criminal procedure civil procedure refugee procedure Plausibility

14. Conclusion • Refugee definition can be broken down into elements (inclusion clauses) • Inclusion clauses: grounded fear, persecution risk, reasons, persecution agents and protection options • Satisfaction with the assumptions of refugee status requires evaluation of all clauses • The credibility rating is something other than the assessment of the fondness of fear • Examination of the clauses must appear in the decision

15. Unhcr countries Eligibility guidelines UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan  17 December 2010… Iraqi Asylum-Seekers             28 July 2010    … Asylum-Seekers from Sri Lanka  5 July 2010 … Asylum-Seekers from Colombia  27 May 2010 … Asylum-Seekers from Somalia 5 May 2010 … the Urdu-speaking Community in Bangladesh   17 December 2009 … Individuals from Kosovo    9 November 2009 … Asylum-Seekers from Eritrea          April 2011 …

16. UNHCR guidelines theme Guidelines on International Protection No. 8: Child Asylum Claims …   22 December 2009 UNHCR Guidelines on Determining the Best Interests of the Child  May 2008 Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking …          7 April 2006 Guidelines on International Protection No. 6: Religion-Based Refugee Claims …  28 April 2004 Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F …  4 September 2003 Guidelines on International Protection No. 4: "Internal Flight or Relocation Alternative" … 23 July 2003 Guidelines on International Protection No. 3: Cessation of Refugee Status … 10 February 2003 Guidelines on International Protection No. 2: "Membership of a Particular Social Group" …  7 May 2002 Guidelines on International Protection No. 1: Gender-Related Persecution …  7 May 2002 Guidance note on refugee claims relating to victims of organized gangs - March 2010UNHCR position on … blood feud – March 2006

17. CASE LOVETH FROM NIGERIA Miss Loveth is a young Nigerian women, she left Nigeria from her village near Lagos at 19 years old. An older Nigerian woman and two men propose to her and her poor family the possibility to come to Europe and to work regularly. Before leaving she has to pass through a ritual ceremony to have lack and to guarantee lack and good life to her family in the original country. The Maman (the older Nigerian women) prepared a potion with some Loveth hair, part of her pubic area and some unglues, Loveth should drank the potion and promise to respect Maman and her friends’ request and order in Europe and not to go to police or to believe to white persons. After the ritual really happy for her wonderful future Loveth took a plane from Lagos to Rome and then the train from Rome to Turin in January 2013 In Turin she thought to work as hairdresser or as waiter in a local Nigerian restaurant, but the older Nigerian women obliged her to work as prostitute in the street, this older Nigerian women never told to Loveth her name, she just explained that Loveth arrived in Italy, but she has to pay her travel and document 50.000 euro working on the street otherwise refusing to do this her family would experience serious harm because of the violation of the voodoo Loveth had experienced physical and sexual violence in addition to their exploitation in forced labor. One evening in January 2014, before that she paid all her debit she was able to escape during the night job activity on the street and she arrived at the local police station asking for asylum. She arrived in front of the local “Asylum Authority” explaining all her story but during the interview it is noted that her has highlighted numerous incidents of non consensual sex and some acts of violence, although this experiences are extremely unpleasant by the Eligibility Officer considered that these treatments do not amount to a risk of persecution as trafficked women in case of return in the original country. 17

18. CASE NIMO FROM SOMALIA Nimo, a 32-year old Somali from Mogadishu, grew up in a Somalia that already torn by violence and instability. As a university student in 2006, Ahmad had the opportunity to work with a nongovernmental organization providing assistance to internally displaced persons. One day, he and his colleagues were summoned before an Al Shaabab committee and accused of disseminating Western propaganda. He was arrested on the spot and than during a governmental aggression to Al Shaabab camp I was able to escape. He fled Mogadishu with his wife and their newborn son. They traveled by road and when that was no longer possible, they went on foot until they found themselves in Ethiopia. After several months, Nimo decided to travel ahead of his family to Malawi, where he hoped to find a home for his family. He successfully obtained refugee status there and found work as a car broker. Just when things seemed to turn in his favor, Nimo was arrested by local security agents and deported to Ethiopia within days. From Ethiopia Nimo and his family were able to arrive in Sudan and than with family economic help they were able to arrive in Libya in 2013 and to take a boat arriving in Sicily at the end of December 2013. They loose all their documents and also the Unchr refugee status decision in Malawi. You understand during the interview that the Asylum Authority maybe is considering Nimo not at risk of persecution for political reason as prescribed by article 1 letter A(2) of Geneva Convention but just at risk of serious harm (eligible for subsidiary protection art 15 letter a and b) for the penalty and the unlawful trial committed by an “Al Shaabab Court”. 18