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  • Print publication year: 2005
  • Online publication date: January 2010

4 - Rights of refugees physically present

Summary

This chapter addresses those rights which follow automatically and immediately from the simple fact of being a Convention refugee within the effective jurisdiction of a state party. These primary protection rights must continue to be respected throughout the duration of refugee status, with additional rights accruing once the asylum-seeker's presence is regularized, and again when a refugee is allowed to stay or reside in the asylum country.

Convention rights can obviously not be claimed until all the requirements of the Convention refugee definition are satisfied, including departure from one's own state. But since refugee rights are defined to inhere by virtue of refugee status alone, they must be respected by state parties until and unless a negative determination of the refugee's claim to protection is rendered. This is because refugee status under the Convention arises from the nature of one's predicament rather than from a formal determination of status. Refugee rights, however, remain inchoate until and unless the refugee comes under the de jure or de facto jurisdiction of a state party to the Convention. This is because the Convention binds particular state parties, each of which is required to meet obligations only within its own sphere of authority.

Assuming that these two conditions are met, what rights ought refugees to be able to invoke as matters of basic entitlement, whether or not their status has been formally assessed?

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