Abstract on behalf of the conference on ‘Refugee law in the era of globalization.

Emerging issues
for the teaching of refugee law’, Brussels, November 12-14, 2008

By Lieneke Slingenberg, PhD candidate, Faculty of Law, VU University Amsterdam

Reception of asylum seekers and the 1951 Refugee Convention

The increased means of transport, communication and information exchange in the globalised world
have facilitated the movement of people between states. At the same time, globalization has provided
more reasons for people to migrate, by increasing, and bringing into sharper focus, socio-economic
differences between states. One of the results of this process has been a huge increase in asylum
applications in western states. Western states have reacted to this increase in asylum applications with
different measures to deter or prevent the arrival of asylum seekers, such as border controls, carrier
sanctions, safe-third country arrangements and detention of asylum seekers. In addition, most western
countries have limited the right to work of asylum seekers and have excluded asylum seekers from
regular social assistance schemes. Whereas in the past, asylum seekers usually were entitled to the
same kind of social assistance as nationals, nowadays, most western countries have set up separate
social assistance schemes, which provide alternative and often very minimal forms of care. This is the
approach of the European Union directive of 2003 on minimum standards for the reception of asylum
seekers (directive 2003/9/EC) as well. In other countries, such as the United States, asylum seekers are
not entitled to welfare benefits at all.

This paper will address the question to what extent the 1951 Refugee Convention limits the possibility
of states to apply these deterrent measures on asylum seekers in the field of social assistance and
employment. To that end, it will discuss whether the requirement to accord refugees ‘lawfully staying’
in the country the same treatment as nationals or most favoured foreigners with respect to public relief
and assistance, social security and employment, as imposed by the Refugee Convention, also applies
to asylum seekers. The difficulty in answering this question lies in the fact that there is no definition of
‘lawfully staying’ in the Convention, nor an authoritative interpretation of this term by an international
court. Moreover, at the time of drafting the Convention, sophisticated individual status determination
procedures as we know them to date had not yet come into being. The status of asylum seekers
awaiting a (lengthy) determination process was therefore not explicitly taken into account.
Consequently, this question has been answered differently in legal doctrine. This paper will provide a
critical analysis of these different interpretations.