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Much ado about legality of asylum to perceived enemies of state

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[files] Nigeria’s Information Minister Lai Mohammed. REUTERS/Afolabi Sotunde

Britain owes Nigeria no explanation, says Oyebode
The media was recently awash with news of new guidelines by the UK Visas and Immigration (UKVI) to its decision makers on how to consider applications by members of Biafran secessionist groups.

In the guidelines, asylum is to be granted to “persecuted” members of IPOB, a group that Nigeria had designated as a terrorist organisation.

According to the guidelines, asylum is also to be granted to members of the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB).

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Notwithstanding that the idea of asylum offer was denounced by both IPOB and MASSOB members, it was, however, condemned by the Federal government, as being disrespectful to Nigeria as a nation.

Minister of Information and Culture, Alhaji Lai Mohammed in a reaction to the guideline, said the decision was unacceptable to Nigeria.

He also stressed that it amounted to sabotaging the fight against terrorism and generally undermining Nigeria’s security.

He said: “Let me say straight away that this issue is within the purview of the Honourable Minister of Foreign Affairs and I am sure he will handle it appropriately.

“But as the spokesman for the Federal Government of Nigeria, I will say that if indeed the report that the UK will grant asylum to supposedly persecuted IPOB and MASSOB members is true, then something is wrong somewhere.

“Against the background of the fact that IPOB is not only proscribed but also designated as a terrorist organisation here in Nigeria, the UK’s decision is disrespectful of Nigeria as a nation.

“The decision amounts to sabotaging the fight against terrorism and generally undermining Nigeria’s security. It is not only unconscionable, it is inexplicable,’’ he said.

Mohammed stressed that there had recently been heightened attacks against security agencies in the South East Zone, which is linked to IPOB in spite of its denials.

“For the UK to choose this time to give succour to IPOB, beggars belief and calls to question the UK’s real intention.

“If we could go down the memory lane, what the UK has done is like Nigeria offering asylum to members of the IRA before the 1998 Good Friday Peace Agreement,’’ he added.

In reaction to the Federal government’s complaint, the British High Commission explained that all asylum and human rights claims from Nigerian nationals are carefully considered on their individual merits in accordance with the UK international obligations.

“The UK has a proud history of providing protection to those who need it, in accordance with our international obligations under the Refugee Convention and European Convention on Human Rights.

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“Our country policy and information notes are published on the gov.uk website. They are kept under constant review and updated periodically – an update to the Biafra separatist note is expected shortly. We publish them since our decisions can be appealed in the immigration courts, which are public, so it is clearer and fairer for all involved (applicants, their lawyers, judges, stakeholders such as the UNHCR) to know what our position and evidence base is.

“All asylum and human rights claims from Nigerian nationals are carefully considered on their individual merits in accordance with our international obligations,” it added.

Although, the guidelines were pulled down by the UK government for further review, the matter attracted reactions from several quarters.

For instance, a professor of International Law and Jurisprudence at the University of Lagos (UNILAG), Prof. Akin Oyebode, said the grant of asylum is a prerogative of a state to offer sanctuary to a foreign national fleeing from jurisdiction of his State or another State.

Accordingly, he stressed that the granting state owes no explanation to any State for its action.

It is a sovereign act shielding a fugitive from extradition and prosecution for any malfeasance.

The professor of international law said Nigeria’s protest over Britain’s decision goes to no issue, more so as Britain is not answerable to Nigeria for its sovereign act under the principle of par in parem non-habet imperium.

Also, human rights activist, maritime lawyer and former President of Nigerian Bar Association (NBA), Dr. Olisa Agbakoba, said it is country of reception that determines whether an asylum seeker is qualified or not.

He noted there are three parties on asylum issues, the one seeking, the country he is leaving and the country that he is seeking asylum from.

According to him, the country one wants to leave will certainly agree that you are leaving on political grounds. So if an IPOB or Boko Haram person is running away from Nigeria and seeking asylum elsewhere, you don‘t expect Nigeria to be happy.

“ So, it is only natural that Nigerian government will write the receiving country not to accept the asylum seeker.

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“That is why Nigerian government naturally protested because they would not want to be put in a bad light in the international community.

“ The traditional view of asylum is that it is given to a person whose life is in danger and want his life protected by another sovereign nation.

“A lot of countries under the refugee convention accepted asylum seekers but that was a very long time ago, unfortunately, you cannot distinguish between people who are seeking political asylum and economic refugees.

“People feel that asylum seekers are not genuine so it is affecting people who really have a good case for it,” he added.

Dr. Agbakoba, who is also the senior partner and head of the arbitration and ADR practice group in Olisa Agbakoba Legal (OAL), said with the change of time, asylum seekers are not seriously taken for political consideration.

Also, former Vice president, Nigerian Bar Association (NBA), Monday Ubani, said the Federal Government has no right to stop UK government from granting asylum because there are certain criteria guiding any government’s actions on granting of asylum.

According to him asylum is not something done on arbitrarily because there are laid down procedures and any person applying must meet the requirements.

He said: “If there are members of IPOB, who are on the risk of being persecuted by their country for either standing for self determination or for standing for things recognised by international conventions, they would certainly go ahead to grant them asylum despite opposition by the government.

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“These countries are not moved by any sentiments. They are moved by what their laws say and they respect their laws. So it is immaterial that the Nigerian government is raising alarm or saying that they have proscribed IPOB, it is also for those countries to also know whether the reasons for the proscription was clearly genuine and evidential. If there is no evidence linking those people who were proscribed as terrorists they would not any way respect that proscription.”

Similarly, a human rights lawyer and former President of the Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, said the discretion and prerogative to grant asylum to any person or group of persons remain that of the “admitting or accepting nation”.

According to him, the same is true of both the standards and criteria for interested persons seeking such asylum in those countries.

He, however, stressed that what the issue now is the appropriateness of such privilege when it is extended to proscribed groups like IPOB.

“ A sovereign nation like Nigeria, in her concerted efforts to tame the increasing spate of insecurity proscribes a radical group and the next moment another sovereign nation, The UK generates enough publicity of the asylum she offers and grants members of the same group.

“At the level of bilateral and diplomatic relationships, it jeopardises their collaboration,” he contended.
According to him, it is not in doubt that deserving persons get asylum from countries with better stability and security in relation to where they’re trying to run from.

“But where countries have built consensus around a particular criminal situation or tendencies, it will be counterproductive to have member countries particularly, those who endorsed or self committed to checking those menaces take such people in under the guise of asylum. It could amount to a breach of bilateral or multilateral relationships.

“Imagine for a moment, that Nigeria decides to grant asylum to all known leaders of terrorist and radicalised groups operating in the United Kingdom or anywhere. It will undermine the collective world efforts to tackle contemporary problems,”Ugwummadu queried.

Whilst, there could be different shades of Asylum, the term is derived from a Greek word whose Latin counterpart is ‘Asylon’, meaning ‘freedom from seizure’.

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Asylum can also be understood as legal protection granted to people who have fled their home countries due to wars, conflicts, persecution, or fear of persecution.

It grants a possibility to remain in a country either permanently or for a temporary period. A person who seeks International asylum i.e. an asylum seeker is known as an ‘Asylee’.

In international law, the process is that an individual has to apply for asylum in a particular country, and while the application is pending he/she is made to stay in a detention camp.

Once, the application is accepted i.e. the claims are accepted, and then the individual gets the status of a refugee and the rights that come along with it.

There are few declarations that provide the ‘Right to Asylum’ like the Universal Declaration of Human Rights (UHDR), the Vienna Declaration on Human Rights and Programme of Action and the Convention on Political Asylum, which was concluded by the Seventh International Conference of American States in 1933.

Article 14 of the Universal Declaration of Human Rights provides the right to an individual to seek asylum in any country to protect him/her from persecution. Provided as per clause 2 of Article 14 that any individual who has a criminal record of anything, which is not acceptable as per the principles of the United Nations, cannot seek asylum and in case of non-political reasons, the asylum can be denied. It is considered as the fundamental law.

Article 33(1) 1951 Refugee Convention prohibits the expulsion or return of refugees and asylum-seekers if their life or freedom is in danger based on their race, religion, membership of a social group, political opinion, or nationality.

New York Declaration for Refugees and Migrants by the UN General Assembly in 2016 also reaffirms the ‘right to seek asylum’ and freedom of an individual to leave or return to their country.

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Article 18 of the Charter of Fundamental Rights of the European Union also provides that as per the rules of the Geneva Convention (28 July 1951) and 1967’s protocol, the right to Asylum is guaranteed.

In 1993, the Vienna Declaration and Programme of Action also reaffirmed the right to seek and enjoy asylum in other countries and the right to return to one’s own country.

However, the articulation of the law of the right to asylum signifies that it is not the right of an individual, but rather is a right of the State to grant asylum. It depends on the discretion of the State whether it grants the asylum or not. The decision of the state must be respected by all other states.

States have to take into account their economic status before granting asylum, as it is the duty of the state to ensure its economic stability.

Various countries have provided the right to asylum in their Constitutions to people who are fleeing from persecution, for example- Constitution of France; Article 10 of the Italian Constitution, Article 31 of Yugoslavia Constitution, among others. ‘Right to Asylum is a right to seek and not to receive.’

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