Providing Safe Entries- Asylum and Humanitarian Visas at Embassies

Abstract: The world is facing a protection crisis, where people are forced to flee their home countries to seek protection elsewhere, which leads to people risking their lives in dangerous attempts to get protection. These individuals are forced to use dangerous transfers since there are very few existing legal options. It is obvious that the situation of today is unsound and that the international community needs to take action to secure protection rights. If the home state fails to protect its own people, the obligation should fall on another actor. There are explicit protection obligations, which entail states to protect refugees. However, these rules are primarily regulating the duties and rights enacted between refugees and the state where the person in question finally seeks asylum. In other words there are uncertainties of who and if a states bears the responsibility to protect asylum-seekers en route. This thesis discusses the possibilities of the existence of a positive responsibility for states to protect these people. If such responsibility may be found in international law, it would most likely help to save the lives of some those who cannot stay in their home countries. It is hard to find a legal ground, although there are a few possibilities within international law as well as EU legislation. Within international refugee law the CSR is a key instrument, which do not unambiguously mention such positive responsibility but it may be argued to be underlying. Furthermore international human rights law contains instruments such as the ECHR, UDHR and CRC, which may be used to seek foundation. Moreover international law comprehends rules such as the R2P and general principles that are of a more diffuse character but might infer a duty upon states. Within EU legislation there are a right to asylum in the binding EU Charter, which might be interpreted in a way as to imply a duty for states to protect the individuals so they can enjoy such right. If a there is an existing positive obligation for states to provide safe entries for asylum-seekers, granting asylum and humanitarian visas at embassies may be a way to fulfil such obligation. However there is a problem of competing sovereignties, which needs to be attended. There are issues related to extraterritoriality and authority, which may cause problems when trying to implement such rules. Moreover, the requirement of refugee status is an obstacle if the asylum-seeker wishes to seek asylum at an embassy in his or her home state since such status cannot be granted there. Nevertheless, it does not interfere with an application at an embassy in a third state. Additionally there are still possibilities to seek humanitarian visas without having being granted refugee status first.