The Protection against Refoulment in the framework of Exclusion Clause: A complex problem within Asylum institution Case Study of Sweden Asylum System

University essay from Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Abstract: The study analysis the urgent problem in the protection against refoulment to the individual s excluded from protection as a refugee in the context of the exclusion clause. In principle, the non-refoulment on the possibility of international law and EU legislation allow alien to claim asylum and prohibit the return for offences committed before the application for refuge to the state. The non- refoulment presumes that any member State does not violate human rights to the Convention, which upholds the prohibition against the violation of non-refoulment. The trouble comes when individuals are criminal or suspected to be criminals. It is not clear as to what extent fundamental rights can be invoked to invalidate the return of the individual and avoiding the violation of non-refoulment. This thesis discussed the degree of protection against refoulment in the background of exclusion to individual regarded as a refugee in Sweden since it should implement the principle of non-refoulement in its migration law. The right of non-refoulement connotes as the barrier for implementing the decision to return an individual to a place which exposed the risk of persecution and violation of fundamental rights. The international law and human rights instrument, mainly UNGCRS, ICCPR, ECHR, AND CAT have an impact on Swedish domestic legislation. Besides, the change of Swedish migration and asylum law affects the implementation of those binding obligation effected by Conventions. Moreover, CEAS is part of European Union Law which has produced the AQD. The AQD have some of the articles which support the right to non-refoulment as embodied in the International law instrument The discussion on the cases from ECHR, CAT and SC reveals that there is a complex problem as on prosecution and possibility of refoulment of the person falling within the exclusion clause. It is not clear as to the extent that the state should conduct and satisfied itself the assurance that the returnee would not face the risk of being persecuted. Nevertheless, also the state has no obligation to prosecute the individual suspected for crime; this leaves a complex problem unsolved particularly to a person not deserving protection in the light of serious crimes committed. Also, the legal limbo on the status of individual not deserving protection does not harden the security against refoulment. Consequently, the conclusions highlight that invoking the exclusion without a genuine respect for fundamental rights that the Refugee Convention presumes to uphold deemed those rights do not exist.

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