Discrimination and asylum law

Doctoral candidate: Maria Bexelius

The principle of equality and non-discrimination constitutes a pillar of the part of international law that involves human rights. The prohibition of discrimination recurs both in the UN core conventions and in regional human rights conventions, such as the European Court of Human Rights, and is furthermore regarded as a prerequisite for other rights. The Inter-American Court of Human Rights has even stated that the right not to be discriminated against has the status of jus cogens in international law.

Against this background and in accordance with the prevailing perception within the dominant liberal human rights discourse, international law is depicted as a defender of equal dignity and rights of all. At the same time, in recent decades, new perspectives and interpretations based on various theoretical points of departure have emerged, which challenge this picture and problematize rights in relation to the nation-state and migration. In light of these analyses and considering the asylum seeker who claims discrimination-related reasons for asylum, it seems relevant to address and examine the construction of human rights in international and Swedish asylum law and praxis.

The overarching purpose of the dissertation project is to examine how the right to non-discrimination as well as the principle of equality and universal human rights are interpreted and expressed in asylum law and practice, especially in the context of the state’s assessment of an asylum-seeker’s need for protection. Discrimination-related asylum claims are the focus of the study. This is relevant considering the fact that the right to non-discrimination is a central issue in international law, while at the same time refugee law and the assessment of protection needs inevitably entail demarcation problems involving the question of what may, or may not, constitute persecution and what rights, and by extension, what subjects are considered sufficiently worthy of protection to justify the granting of refugee status or some other form of international protection against refoulement.

Tentatively, the study includes the following parts:

  • A first part describing relevant theories in relation to equality, rights and migration, which would be of use for the analysis of asylum law and practice.
  • A second part which includes a brief review of how the right of non-discrimination is interpreted and discussed in international law.
  • A third part which includes an analysis of how the principle of equality and the right to non-discrimination, are interpreted in asylum law, as expressed in relevant international conventions, the UNHCR handbook and guidelines, decisions by UN monitoring committees, the European Court of Human Rights, and the EC Court of Justice – all in relation to cases involving forced return of persons who have previously applied for asylum. The EU Qualification Directive will also be analysed.
  • A fourth part, the main part of the study, which includes an analysis of how various types of discrimination-related grounds for asylum are interpreted and discussed in Swedish preparatory works and in Swedish case law and thus also an analysis of how the principle of equality and the right to non-discrimination are interpreted in Swedish asylum law and practice.  The analysis of legal cases will include not only judgments by the Supreme Migration Court, but also judgments by the migration courts and decisions by the Swedish Migration Board.

Some of the questions that may be of significance for such an analysis are: How is the right not to be subjected to discrimination defined, and what is required for discrimination to be regarded as constituting persecution or torture or other inhumane, degrading treatment or punishment, respectively? How are discrimination-related grounds for asylum investigated and assessed in relation to international conventions, the UNHCR handbook and guidelines, and the Swedish preparatory works? How does such an assessment of protection needs relate to the perception that the subject positions and experience of individuals are affected by intersectional power structures based on e.g. age, gender, class, ethnicity, and sexual orientation? What possible mechanisms of exclusion are at work in the investigation and assessment of discrimination-related asylum claims?

Considering this and relevant theories of equality and rights, there would be an opportunity to include an analysis as to whether – and if so under what circumstances – asylum seekers claiming discrimination-related grounds for asylum are construed as subjects worthy of protection and, not least, as political subjects.

If space allows, best practice from other countries may be introduced as points of comparison.

It is hoped that these parts will provide a platform for achieving the overarching purpose to examine how the right to non-discrimination and the principle of equality are interpreted and expressed in asylum law and practice, not least in relation to relevant theories and on-going discussions within legal and political theory that problematize the character and meaning of human rights.

This subproject is part of a dissertation project at the Department of Law, Uppsala University. Main supervisor: Maja Kirilova Eriksson (Uppsala). Deputy supervisors: Gregor Noll (Lund) and Rebecca Stern (Uppsala).

Read a brief summary of the subproject (in Swedish, June 2015).