This could be your story. Imagine you grew up in the Democratic Republic of the Congo (DRC), which “is considered the world’s richest country in terms of wealth in natural resources”.[1] Nevertheless, the political and socio-economic situation in most parts of DRC has become strained in the last few years. Poverty, inequality, food shortages and social protection are increasingly deficient.[2] Additionally, violence and brutal attacks against civilians by armed groups have increased significantly.[3] The State’s protection against human rights violations is not guaranteed, and even worse, nearly 46% of human rights violations in the Democratic Republic of the Congo are committed by State officials themselves.[4] One day, an armed group came to your house, they threatened and extorted you. After this traumatic experience, the word “fear” has taken on a new meaning. Consequently, you see no other chance than leaving your home, your country, your family and friends, your job behind – everything. You flee from your home country and arrive in a foreign state seeking asylum, where you are confronted with being called “illegal asylum seeker”, instead of being greeted with “welcome to my country”.
Why the Democratic Republic of the Congo? In March 2022, the state joined the Eastern African Community (EAC)[5], and regarding the country’s resource wealth and economic activities, the country seems to be making political and economic progress. But what often goes unheard in the news about the Democratic Republic of the Congo are the stories of those persons who fear violence and human rights violations living there.[6]
The right to asylum is a human right
The right to asylum is a human right that was introduced by Article 14 of the Universal Declaration of Human Rights (UDHR) adopted on 10th December 1948, according to which “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”. In other words, asylum is the protection by a state for determined persons who were victims of violence or persecution in their country of origin. Later, this human right was further developed through the United Nations Convention relating to the Status of Refugees of 28th July 1951 (the 1951 Refugee Convention) and its 1967 Protocol. Building on this international legal fundament of the right to asylum, countries have established the right to asylum as a fundamental right in their constitutions.[7]
The right to asylum consists of two components: the right to seek asylum and the right to receive asylum.[8] The right to seek asylum means that everybody has the right to state the need for international protection. International protection is another term for asylum, consisting of the refugee and subsidiary protection status. As the second component, the right to receive asylum is conditioned on whether the applicant fulfils the requirements of the refugee status and subsidiary protection status, which minimum standards are granted on the regional level, such as the European level.[9] Remembering the narrative of the beginning, you would have the indispensable right to seek asylum in another country and, as a second step, you would receive asylum depending on the fulfilment of the following requirements.
The recognition of international protection
International protection is granted to a third-country national or stateless person who is not in their country of origin and cannot or, due to fear, does not want to claim internal protection.[10] Depending on the refugee status or subsidiary protection status, the foreigner has to fulfil further requirements.
In the European Union, the recognition of refugee status is bound to five legal requirements. The first requirement is the existence of a “well-founded fear of persecution”[11] and constitutes the core requirement for refugee status. This requirement has two elements: fear as a subjective element and well-founded fear as an objective element. Considering the difficult demonstrability of a subjective element, an assessment is made of the asylum seeker’s statements, which must be sufficiently substantiated and meet a certain degree of credibility.[12] Concerning the criteria of the foundation of the fear of persecution, the situation in the applicant’s country of origin is assessed.[13] The second requirement is an act of persecution which affects the person individually and has to “be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights” or “be an accumulation of various measures”[14]. Additionally, there has to concur a determined reason for persecution, namely for the concept of race, religion, nationality, a particular social group (including sexual orientation, sexual identity and gender) or political opinion.[15] The fourth requirement is a causal nexus of the act of persecution and the reason for persecution.[16] The last requirement is the absence of grounds for exclusion from being a refugee, such as committing a war crime.[17] Fulfilling all these requirements, the foreigner is granted refugee status.
Apart from the recognition of the condition as a refugee, international protection provides the subsidiary protection status. This is granted to foreigners who don’t fulfil the requirements of refugee status when there are “substantial grounds for believing that the person would face a real risk of suffering serious harm in his country of origin”[18]. The term “serious harm” is fulfilled in three different cases: “death penalty or execution”, “torture or inhuman or degrading treatment or punishment” and “serious and individual threat to a civilian’s life or person by the reason of indiscriminate violence in situations of international or internal armed conflicts”.[19]
Connecting these facts with the narrative of an asylum seeker from the Democratic Republic of the Congo, the competent authority, in this case, of the European Member State where you presented your asylum application, should analyse your case by checking the fulfilment of the five requirements for the recognition of the refugee status and, subsidiary, the fulfilment of the requirements of subsidiary protection. [20]
Can an asylum seeker be illegal?
Following the two different dimensions of the right to asylum, I want to stress that every human being, including you and me, has the inherent right to seek asylum.[21] Thus, how can a person making use of their human right be an “illegal asylum seeker”? It is paradoxical and defies logic to label someone as “illegal” when the person is simply exercising their right to seek refuge from persecution and serious harm. Despite what some people say or the media spreads, it is crucial to recognise the legitimacy and legality of the asylum-seeking process. A person seeking asylum in a country without having migration documents is considered in an irregular situation but it is not considered as illegal.[22] Yes, it is an administrative fault, but no, it is not a crime. Nevertheless, there are few countries that regulate this situation differently. For example, in the United States of America, a person seeking asylum without migration documents who is in the territory of the United States would commit a crime, and the migration status would be considered illegal – but still: the migration status would be illegal and not the person.
Summary
Summing up, the Universal Declaration of Human Rights introduced the right to asylum as a human right 75 years ago. I argue statements and narratives about “illegal asylum seekers” not only misrepresent the reality but also contribute to instilling fear and fostering rejection of asylum seekers among the population. It is time that we change that as a society as well as politics. We need to see the individual, remembering that their story could be our own. Overall, we must recognise that no asylum seeker is ‘illegal’ for making use of their human right because “Nobody is illegal.”[23].
[1] https://gsphub.eu/country-info/Democratic%20Republic%20of%20Congo accessed 14/12/2023.
[2] https://eacnur.org/es/blog/riqueza-en-africa-rd-congo-tc_alt45664n_o_pstn_o_pst accessed 21/10/2023.
[3] Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, ‘Human rights situation and the activities of the United Nations Joint Human Rights Office in the Democratic Republic of the Congo’, 15 July 2021, consideration 4.
[4] See footnote 3, consideration 2.
[5] https://www.eac.int/press-releases/2402-the-democratic-republic-of-the-congo-joins-eac-as-its-7th-member accessed 15/12/2023.
[6] In 2022, UNHCR counted 932.680 refugees from the DRC and in the first 6 months of 2023 948.417 refugees from the DRC (https://www.unhcr.org/refugee-statistics/download/?url=0hp0uR accessed 29/02/2024).
[7] E.g. Art. 16a Grundgesetz (German Constitution).
[8] Ref. Arts. 2, 4 and 5 of the Directive 2011/95/EU.
[9] 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.
[10] Art. 1 and Art. 2 (i) of the Directive 2011/95/EU.
[11] Art. 5 of the Directive 2011/95/EU.
[12] OHCHR, ‘Handbook on procedures and criteria for determining refugee status and guidelines on international protection.’ (Geneva, February 2019), considerations 37 et seq..
[13] Art. 4 of the Directive 2011/95/EU.
[14] Art. 9 of the Directive 2011/95/EU.
[15] Art. 10 of the Directive 2011/95/EU.
[16] Art. 9 (3) of the Directive 2011/95/EU.
[17] Arts. 12 of the Directive 2011/95/EU.
[18] Section 4 of the German Asylum Act.
[19] Art. 15 of the Directive 2011/95/EU.
[20] Ref. Arts. 5 ff. of the Directive 2011/95/EU
[21] Ref. Art. 4 (1) of the Directive 2011/95/EU.
[22] Ref. Introductory Note by the Office of the UNHCR on the 1951 Convention Relating to the Status of Refugees, p. 3.
[23] UN Agenda 2030.
