Positive Obligations of the State Towards Irregular Migrants : The Case of Rejected Asylum Seekers in Iceland

• Main Author: Úlfarsson, Gunnar
• Other Authors: Åbo Akademi, Fakulteten för samhällsvetenskaper och ekonomi, Folkrätt
• Format: Thesis
• Language: English
• Published: 2024
• Subjects: Irregular migrants; Rejected asylum seekers; Positive obligations; vulnerability; migrants; asylum seekers; human rights violations; decisions to reject; international law; humanitarian law; sårbarhet; migranter; asylsökande; kränkningar av mänskliga rättigheter; avslagsbeslut; internationell rätt; humanitär rätt; haavoittuvuus; siirtolaiset; turvapaikanhakijat; ihmisoikeusloukkaukset; kansainvälinen oikeus; humanitaarinen oikeus; hylkäyspäätökset; 513 Juridik; Iceland
• Online Access: https://www.doria.fi/handle/10024/189235

In the summer of 2023, Iceland amended its Foreigners Act in a way which denied rejected asylum seekers the social benefits previously available to them as asylum seekers. Doing so put into question whether Iceland was fulfilling its positive obligations under international human rights treaties as the affected individuals were rendered unable to enjoy their most fundamental human rights. The question is thus what the State is expected to do for irregular migrants staying within their borders per the positive obligations stemming from international human rights agreements. Rejected asylum seekers are a unique subgroup of irregular migrants and an argument can be made that they are particularly vulnerable due to still holding the vulnerabilities of an asylum seeker which the ECtHR considers a vulnerable group in their case-law. As such, rejected asylum seekers deserve particular attention regarding their enjoyment of fundamental rights and the threshold for a violation of certain rights might be lowered. The main issues to be examined are problems related to the inability to access social assistance in the form of shelter and basic amenities. Hence, various articles of human rights treaties which may offer some protection against homelessness and destitution are examined through the doctrinal method of carefully examining scholarly writings, case law, and various documents from international organisations. Irregular migrants can avail themselves of the protection offered by human rights treaties which protect everyone, as made clear by ordinary textual understanding of the treaties. However, some treaties restrict their protection, making it available only to regularised individuals within the States’ borders. Nevertheless, judicial bodies have made it clear that the interpretation of said treaties cannot result in an individual’s most fundamental rights being violated regardless of the person’s legal status. The aim of policies which restrict the rights of rejected asylum seekers and other irregular migrants is ...