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Asylum seeker or refugee?

20 September 2018

Asylum seeker or refugee?

In press reports and public discourse on providing protection to persecuted foreigners, the term "refugee status" appears as often as "asylum". Contrary to popular belief, these concepts are not synonyms in Polish language and have completely different, clearly defined meanings under the law. Asylum is a term for a special form of protection granted to individuals by the state, its roots dating back to ancient times.


Currently, the concept of asylum most often refers to the so-called territorial asylum, sometimes also referred to as political asylum. This is a form of protection that is an institution of national law, not international law. This means that the rules for granting asylum are not based on the provisions of any international convention, but are regulated internally.


It is true that Art. 14 of the Universal Declaration of Human Rights of 1948 provides that "every person has the right to apply for and enjoy asylum in other countries in the event of persecution", and Art. 1 of the 1967 Declaration on Territorial Asylum authorizes states, in the exercise of their sovereignty, to grant such persons asylum, which will be respected by other states, but both of these acts are resolutions of the UN General Assembly and have no legally binding force. Granting asylum is therefore the responsibility of the state and is a manifestation of its sovereignty. For these reasons, political considerations and the state's interest play an important role when granting territorial asylum, and such decisions are discretionary. Each state determines the conditions for granting it and the status of such a person; there is no common definition of this form of protection or the scope of rights and status associated with it.


Asylum is an institution that has existed in Polish law since the Constitution of 1952. The currently binding Constitution of 1997 in Art. 56 section 1 states that "foreigners may exercise the right of asylum in the Republic of Poland on the terms specified in the Act." Detailed rules in this respect are specified in the Act of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland. Pursuant to its Art. 3, asylum is one of the forms of protection granted to foreigners in Poland, next to: refugee status, subsidiary protection and temporary protection. Further, Art. 90 states that "A foreigner may, at his or her request, be granted asylum in the Republic of Poland when it is necessary to ensure his or her protection and when it is justified by an important interest of the Republic of Poland." This formulation of the scope of this institution directly indicates its discretionary nature, which clearly distinguishes it from refugee status. Moreover, the Minister of Foreign Affairs must consent to granting asylum. The second clear difference is the fact that an asylum application can be submitted when the foreigner is already staying on the territory of the Republic of Poland, but also when he is still outside the country. Such a request was submitted, for example, by the well-known whistleblower Edward Snowden, who was temporarily staying in the transit zone of Sheremetyevo airport in Moscow. However, his application was found not to meet the formal requirements and was not resolved on the merits.


In practice, very few foreigners take advantage of the opportunity to apply for asylum in Poland. According to data for 2018 published by the Office for Foreigners, a total of 25 people submitted such an application. In the same year, no positive decision granting asylum was issued. For comparison, during this period 4,134 people applied for protection in the form of refugee status.


Refugee status, unlike asylum, is an institution of international protection granted by states that are parties to the 1951 Convention Relating to the Status of Refugees and the New York Protocol of 1967. An application for refugee status may only be submitted by a foreigner residing in the territory of a given state party. When deciding on such an application, there is no room for state discretion or considerations of state interest. National authorities are bound by the definition set out in Art. 1 of the Convention, and the decision to grant refugee status is declaratory in nature, which means that it confirms that the applicant meets the convention conditions. These conditions mean that protection resulting from refugee status is based on objective premises, and therefore the process of obtaining it is more understandable for the applicant and, to some extent, predictable. Such certainty is of great importance for an individual who wants to obtain shelter in a new country and usually prevails in favor of this form of protection.


So why so much confusion around these two terms? One of the main reasons for using terms for these different protection institutions interchangeably is language issues. In international terminology, "refugee status" and "asylum" are often used interchangeably. The English term for foreigners seeking protection in the form of refugee status is "asylum seekers". Due to the lack of an equally short synonym in Polish, colloquial speech often refers to "asylum seekers" in reference to people who are just applying for (or have already obtained) refugee protection. The second reason is the lack of consistency in the translation of EU legal acts relating to refugee issues. The Polish Protection Act refers, for example, to the "country of first asylum", which is in fact a country where a foreigner has previously been recognized as a refugee (or otherwise enjoys sufficient protection there).


Finally, it is worth adding that foreigners themselves, especially Russian-speaking ones, often mistakenly refer to the fact that they are seeking "asylum" at the border, although in fact they are counting on the possibility of obtaining refugee status.