The procedure for the recognition of international protection.
Refugee status - arising from a well-founded fear of persecution in the country of origin - can be granted to a foreigner or stateless person who accedes to the right of asylum.
The concept is contained in the Geneva Convention, which states that "a refugee is one who, fearing persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of which he is a national and is unable or unwilling - because of this fear - to avail himself of the protection of the country of which he is a national."
It is clear from reading the provision that one of the sine qua nons is that the applicant must be outside the country of his or her nationality or country of habitual residence (in the case of stateless persons), regardless of whether the fear arose before or after departure from the country. No exceptions are allowed. Therefore, international protection cannot arise as long as the applicant is within the country's borders.
The definition can only apply to third-country nationals and stateless persons remaining excluded from Member States because "[omissis]...given the level of protection of fundamental rights and freedoms guaranteed by them, they are mutually regarded as safe countries of origin for all legal and practical purposes related to asylum matters."
Refugee status encompasses rights and duties that are not only specified by European Union norms-which include the refugee among the figures giving rise to international protection-but are also recognized to the person in all states where the Convention relating to the Status of Refugees, signed in Geneva on July 28, 1951, entered into force on April 22, 1954, and was ratified and made enforceable in Italy by Law 722/1954.
Originally, the Convention, created to give a more stable legal status to foreigners or stateless persons who feared returning to their homeland as a result of the political, ethnic, and territorial upheavals following World War II, was characterized by a pronounced conditional nature. It was only as the phenomenon evolved quantitatively and qualitatively that additions became possible that overcame the original wording of the Convention and the restrictive interpretations it allowed.
To date, the Geneva Convention-along with the Protocol Relating to the Status of Refugees, signed in New York in 1967 and made enforceable in Italy by Law 95/1970-are the only instruments of international law of a universal character containing the notion of refugee.
However, there is more.
The Geneva Convention lacks procedural rules to regulate the applicant's admission to the territory or the recognition of refugee status, but nevertheless imposes a prohibition against refoulement to places where his life or freedom could be threatened: the obligation of non-refoulement, which applies regardless of whether the person has already been recognized as a refugee and/or whether the latter has formalized the application for recognition.
Because of these things, the applicant has a perfect right to enter the state's territory, at least to have his personal situation looked at and confirmed by the right authority.
The first element, "well-founded fear," is related, in the case of return to the country of citizenship or habitual residence, to the reasonable fear of being persecuted for reasons of ethnicity, religion, membership in a particular social group, nationality, or political opinion.
It is characterized by the presence of a subjective element, the mental state, and an objective element, i.e., the substantiation of the fear based on objective elements and external circumstances, without which the mental state does not acquire relevance because it is not justified.
According to paragraph 45 of the UNHCR Handbook, the examination of an application for international protection, which should begin with a prognostic and future-oriented judgment, should be based on an assessment of the applicant's risk of suffering persecutory behavior if he or she is returned to the country of origin.
Forward-looking fear, then. But for what reason?
The justification lies in the fact that the applicant may not have actually suffered persecution in the past-perhaps having avoided the danger by fleeing-but has a reasonable fear that he or she may suffer persecution in the future.
In order to allow for a proper assessment as to whether the fear is well-founded, the applicant will be "required to submit, together with the application or as soon as available, all the elements and documentation necessary to substantiate the application...[omissis]...statements and documentation in his possession regarding his age, social status, including those of his relatives."
Also, the general situation in the applicant's country of origin should be taken into account when deciding whether or not the application is valid.
Finally, given that fear is also characterized by a subjective perception, it will be necessary to assess whether this is likely to be true for an individual in the same physical, psychological, economic, social, and cultural conditions as the person concerned.
According to the Court of Justice of the European Union, in assessing the extent of the risk and assuming that the applicant is not already persecuted or has been threatened with persecution, "the serious indications of well-founded fear" will still have to be considered: the fact that the applicant renounces the conduct, behavior, and/or acts that could expose him or her to such a risk is not an evaluative canon, it being sufficient that the competent authorities, in light of the applicant's personal situation, "consider it reasonable to believe that, by returning to the country of origin, he or she will perform the religious acts that will expose him or her to a real risk of persecution" (Grand Chamber in Joined cases C-71 and C - 99/11, Bundesrepublik Deutschland/Y. Z., Sept. 5, 2012).
The second factor is the risk of being persecuted, which does not have a clear and universally accepted definition. Only persecutory actions that are specifically mentioned in the Geneva Convention are important, such as those based on race, religion, citizenship, membership in a certain social group, or political opinion.
Article 7(1) of Legislative Decree 251/2007 says that there are two types of persecution: violations of human rights and multiple acts that hurt the person in the same way.
The following are considered acts of persecution: acts of physical or mental violence, including sexual violence; legislative, administrative, police, or judicial measures that are discriminatory by their very nature or implemented in a discriminatory manner; disproportionate or discriminatory prosecutions or criminal sanctions; the denial of access to legal remedies and the resulting disproportionate or discriminatory sanction; prosecutions or criminal sanctions as a result of refusal to serve in the military in a conflict, if it may result in the commission of crimes, offenses, or acts falling under the exclusion clauses of Art. 10, c. 2; acts specifically directed against a sexual gender or against children.
THE PERPETRATOR OF PERSECUTION AND THE REASONS FOR PERSECUTION.
Article 6 of Directive 2011/95/EU, the so-called Qualification Directive, provides a uniform definition of a person responsible for persecution: the state, parties, organizations controlling the state or a substantial part of its territory, as well as non-state actors, in cases where the previous responsible parties (including international organizations), are unable or unwilling to provide protection. For the purpose of determining the existence of refugee status, conduct derived directly from the applicant's state of origin, or attributable to him or her as committed by persons vested with the exercise of prerogatives belonging to a public authority (state persecutor), is relevant.
In the case of conduct derived from private agents or social groups (so-called non-state persecutor), it is sufficient that the state of origin "will not"-in the sense that it tolerates or assists the action (or omission) of the agent responsible for the persecution and serious harm-or "cannot" provide adequate protection to the applicant against that conduct-being unable or prevented from doing so considering the measures in place and the applicant's ability to access them.
It is therefore necessary that there be an inadequate system of national protection and an ineffective mechanism to identify, prosecute, and punish conduct that constitutes acts of persecution.
Regarding the reasons for persecution, it is possible to state that refugee status can be granted only in cases where it results from one or more acts committed for one of the five reasons specified in Article 1(A)(2) of the Geneva Convention (taken up by Article 8(1) of Legislative Decree No. 251/2007), namely race, religion, nationality, membership in a particular social group, and political opinion.
The existence of a causal link between persecution and the reason for which it is inflicted turns out to be essential for refugee status to be established. This nexus may be internal-when the applicant actually possesses the racial, ethnic, national, social, or political characteristics that cause the persecution-or external-when it is the persecutor who attributes certain characteristics to the applicant.
In a nutshell, persecution on the grounds of race means both persecution based on membership in an alleged "race" and persecution based on considerations of skin color, a particular ancestry (such as membership, even if only presumed, in a given caste), or a national or ethnic origin.
Persecution on religious grounds can take different forms: prohibition from belonging to a religious community; prohibition from worshipping in public or in private; prohibition from giving or receiving religious instruction; or it can also consist of the adoption of a plurality of discriminatory measures against those who profess a particular belief or are part of a particular religious community.
As for persecution based on nationality, this is when people from one nationality target people from another nationality just because those people belong to the other nationality or don't belong to the persecutor's nationality.
Persecution on the grounds of membership in a particular social group is the one that, among the five conventional grounds, has given rise to the greatest interpretative problems, being more susceptible than the others to extensive interpretations. Indeed, the interpretation may vary depending on the criterion of identification of the social group: one speaks of the persecutor's external perception of a group of people-that is, the group shares a characteristic that makes it externally recognizable or distinguishes it and identifies its diversity-and of self-definition based on the internal perception of the historical, innate, or immutable characteristics that distinguish a given social group.
As for persecution on the grounds of public opinion, it should be specified that holding political opinions that differ from those who govern a country is not in itself sufficient grounds for eligibility for refugee status unless that opinion has been taken as a pretext for discriminating against, repressing, or punishing the person who expresses it, would like to express it, or is alleged to express it.
In light of the above, the inability and/or unwillingness to avail oneself of the protection of the state of citizenship or residence is one of the essential elements of the inclusion clause of the refugee definition in Article 1(A) of the Geneva Convention. This absence of protection may depend either on objective reasons independent of the applicant and determined by contingent situations (such as a state of war in the country) that prevent the authorities from effective control over the territory of the state, or on subjective reasons if it is the applicant who does not wish to avail himself of the protection of the country of origin for reasons closely related to the "reasonable fear" underlying the application for protection (the authorities are the subjects responsible for or complicit in the persecution itself).
SUBJECTS THAT CAN OFFER PROTECTION AND GROUNDS FOR EXCLUSION.
Among the innovations introduced with Article 7 of the "qualification" directive-almost literally taken up by the national legislature in Article 6 of Legislative Decree No. 251/2007-is that of the entities that can offer protection to the applicant, namely the state and parties or organizations, including international organizations, that control the state or a substantial part of its territory.
GROUNDS FOR EXCLUSION.
The 1951 Geneva Convention identifies a number of hypotheses in the presence of which a foreigner or stateless person, despite meeting the positive requirements, cannot be granted refugee status. Exclusion clauses on the grounds of "non-deservingness"-the determination of which is referred to the authority responsible for examining the application for international protection-concern not only the material perpetrators of the serious acts envisaged but also those who have contributed to their commission.
Below are the individual refugee status exclusion clauses.
The first concerns cases where the person is already recognized as a beneficiary of United Nations assistance or protection because he or she "falls within the scope of Article 1 D of the Geneva Convention, relating to protection or assistance by an organ or agency of the United Nations other than the United Nations High Commissioner for Refugees." For this reason, the protection already granted has the effect of permanently eliminating the well-founded fear of persecution.
The second hypothesis is that of "quasi-citizens," governed by Article 1(E) of the Geneva Convention, according to which "the Convention does not apply to those who are considered by the competent authorities of the country in which they have established their residence as having rights and obligations connected with the possession of the nationality of that country." The lack of protection lies in the fact that the person may enjoy other state protection.
Finally, Article 1(F) of the 1951 Geneva Convention identifies three distinct cases in which the individual, although meeting the requirements of Article 1(A) of the Convention, is not considered deserving of international protection because he or she has been guilty of the most serious and unacceptable actions: responsible for crimes under international law, crimes committed outside Italy, and acts contrary to the purposes and principles of the United Nations.
FINIS CORONAT OPUS: THE CAUSES OF TERMINATION OF REFUGEE STATUS.
The causes of termination of refugee status are identified in Article 9 of Legislative Decree No. 251/2007:
- The voluntary reacquisition of the protection of the country of citizenship
- The voluntary reacquisition of the citizenship of the country of origin
- The voluntary acquisition of Italian citizenship or citizenship of another country
- The voluntary re-establishment in the country where there was a fear of being persecuted
- The chance of being able to enjoy the protection of their home country because the problems that made them a refugee have gone away.
- The possibility of enjoying the protection of the country of habitual residence, in the case of a stateless person, due to the disappearance of the circumstances that determined the recognition of refugee status.
The first four hypotheses, so-called "causes of voluntary termination," presuppose the free will expressed by the refugee and the secure status of the person even in the absence of international protection.
The last two hypotheses, on the other hand, allude to a change in objective circumstances in the state of origin, such that international protection is no longer justified or required.In these hypotheses, it is the country of asylum that takes note of the change of circumstances that has occurred in the country of origin, from which it follows that the need for international protection no longer exists and the refugee can be returned.
Only a change that can be characterized as fundamental, stable, lasting, and effective can lead to the termination clause of refugee status; a mere improvement in the conditions in the country of origin or residence is not in itself sufficient to bring about the termination of refugee status (Court of Justice, Judgment of March 2, 2010, No. 16, Salahadin Abdulla, Joined Cases 175/08-176/08-178/08 179/08).
Abogado Sarah Silvestri
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