TNAG-1800-FCO40-2560-Hong-Kong-Vietnamese-refugees-principle-of-first-asylum-1988 — Page 203

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Article II (5) of the 1969 ONJ Convention and paragraph 3 of Resolution 14 (1967) of the Committee of Ministers of the Council of Europe).

In accordance with the provisions found in these instruments, temporary refuge provides, by way of temporary admission, to an asylum-seeker not initially granted lawful residence, the opportunity of obtaining asylum in another country.

In recent international instruments and documents an territorial asylum, admission has been seen not only in relation to the grant of asylum (understood as lawful presence or residence within the meaning of the 1951 UN Convention) but also in regard to "temporary refuge" (or whatever term may be used to denote temporary admission falling short of the grant of lawful presence or residence).

From the provisions of these instruments and documents, it is clear that "asylum" is not the same as "temporary refuge". For example, it has been stated that there should be no exception to the duty not to reject at the frontier; but States should only use their "best endeavours" to grant "asylum".

Although there has been no. detailed definition of "asylum", the term has been used to mean the provision of durable plenary protection to a person who is a refugee lawfully in the country of asylum within the meaning of the 1951 UN Convention.

The distinction between "asylum" and "temporary refuge" corresponds broadly to the distinction in the 1951 UN Convention between "legally in the territory" (e.g. Article 32) and "illegally in the country" (Article 31).

A number of other terms have been used to describe temporary refuge "temporary asylum", "first asylum", "provisional asylum" and "temporary residence". We believe that all of these terms are confusing and unsatisfactory. The qualification of the term "asylum" by the words "temporary", "first", or "provisional"overlooks the fact that in relation to the refugee the term "asylum" has been linked with the status of a refugee granted lawful presence or residence within the meaning of the 1951 UN Convention. One of the purposes of that Convention was to provide a prohibition on the expulsion of refugees lawfully in the country and secure thereby indefinite or permanent presence or residence (Article 32). Trus, the qualification "temporary", "provisional", or "first", used to imply that the refugee may be obliged to seek residence elsewhere, is in conflict with the basic meaning of the term "asylum" understood in relation to 1951 UN Convention."

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