Does national legislation in Sweden and in the UK conflict with international law protecting refugees?

Sammanfattning: This thesis examines the relationship between international law protecting refugees and national legislation in Sweden and in the UK. International protection is afforded by the 1951 Geneva Convention Relating to the Status of Refugees. But also general international human rights instruments are relevant. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Cultural and Social Rights, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the protection of Human Rights and Fundamental Freedoms. The most important right benefiting refugees is that of non-refoulement, i.e. the right not to be sent back to the frontiers of territories where one's life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion&semic or where one would risk being subjected to torture or other cruel, inhuman or degrading treatment. In both Sweden and the UK various measures to keep the number of asylum seekers and refugees down are employed. These can be broadly categorized in measures of containment and measures of deterrence. The former are measures which have as their direct object to keep potential asylum seekers and refugees out of the territory of the country of refuge, or cut short the duration of their stay there. The latter are a mixture of restrictive and punitive measures taken in the country of asylum. National rules in Sweden are found primarily in the 1989 Act on Aliens (Utlänningslagen), and in the UK in the "&semicAsylum and Immigration Act"&semic. Measures of containment include visa requirements, carrier sanctions, pre-frontier training and assistance programmes, safe third country and safe country of origin. Visa requirements is the primary measure of containment. There is no possibility to apply for a visa on the grounds of seeking asylum in Sweden. In the UK this is possible, although only to a very limited extent. Denying a potential asylum seeker a visa could violate article 3 of the European Convention on Human Rights. National legislation in Sweden and in the UK on carrier sanctions, pre-frontier training programmes, safe third country and safe country of origin probably conform with international law. To comply with the principle of non-refoulement, the safe third country measure must not be used mechanically. Safe country of origin lists may only be used informally, as an administrative tool raising a presumption that there is no risk of persecution. Neither Sweden nor the UK have formal safe country of origin lists. Measures of deterrence include detention and retention, limitation of welfare benefits and negative language and propaganda directed towards asylum seekers by State officials. As for detention, policy in the UK results in large numbers of asylum seekers being kept detained for prolonged periods. This probably often leads to violations of article 9 of the International Covenant on Civil and Political Rights and article 5 of the European Convention on Human Rights, which prohibit arbitrary arrest or detention. Also, there is no proper appeal procedure in detention cases in the UK, only a bail hearing which focuses on guarantees for good behaviour rather than on the lawfulness of the detention. This possibly violates article 5.4 of the European Convention on Human Rights and article 9.4 of the International Covenant on Civil and Political Rights. Welfare benefits for asylum seekers are kept to a minimum in both Sweden and the UK. The system for social assistance to asylum seekers in the UK is possibly discriminatory, in violation of article 26 of the International Covenant on Civil and Political Rights. Even if discrepancies are found between national legislation and the international instruments, it can be hard for individuals to enforce international law. United Nation's conventions generally have monitoring Committees, but there are only limited possibilities for individual petitions and the Committees lack enforcement power. However, if there is a violation of the European Convention on Human Rights, individual complaints can be made to the European Court of Human Rights. Its decisions are binding on Member States. Neither in Sweden nor in the UK can international law be invoked in national courts. Clear violations of international law are thus rare in Sweden and the UK. One reason is that national legislation is largely of a procedural nature. Material substance is kept to the level of policy, which it is harder to examine. National legislation on immigration and asylum in Western European States is likely to become even more restrictive in the future. In the UK, calls have been made to have the Geneva Convention rewritten to allow for a limitation to the principle of non-refoulement.