Iceland is a member state of the 1951 United Nations Refugee Convention (UNHCR). The Icelandic Act no. 96/2002 on Foreigners and the Regulation on Foreigners no. 53/2003 describe the case procedure regarding application for asylum. The Directorate of Immigration processes the applications for asylum at the first administrative level; whereas the applications are to be submitted to the police.
Who has the right to asylum or international protection?
According to Article 44, paragraph 1, of the Act on Foreigners, which reflects the contents of the United Nations Refugee Convention (UNHCR), a person who is subject to persecution in his/her own country because of race, religion, nationality, membership of a particular social group or political opinion has the right to asylum as a refugee in Iceland.
Article 44, paragraph 1, of the Act on Foreigners reads as follows:
For the purposes of this Act, a refugee is a foreign national who is not in his/her own country due to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and cannot or is unwilling to, owing to such fear, avail him-/herself of the protection of that country; or who, not having a nationality and being outside the country of his/her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, cf. Point A of Art. 1 of the international Convention and Protocol Relating to the Status of Refugees of 28 July 1951 and Protocol to the Convention of 31 January 1967. The requirements to be considered a refugee are prescribed in more detail in Art. 44 a.
In addition to asylum on grounds of persecution in a person‘s own country, Article 44, paragraph 2, of the Act on Foreigners discusses what is referred to as subsidiary protection. This means that a person who is at risk of facing capital punishment, torture or inhumane or degrading treatment or punishment – without facing a risk of persecution for any of the aforementioned reasons – has the right to asylum as a refugee.
Article 44, paragraph 2, of the Act on Foreigners reads as follows:
For the purposes of this Act a refugee may also be a foreign national who is not a refugee in accordance with the provisions of Point A of Art. 1 of the International Convention and Protocol Relating to the Status of Refugees if there are reasonable grounds to expect that he/she would be in danger of capital punishment, torture or other inhumane or degrading treatment or punishment if he/she were sent back to his/her home state. The same shall apply to a stateless person.
The spouse of a refugee or his/her partner and his/her children under the age of 18, who are neither married nor in formal cohabitation, also have the right to asylum unless special reasons oppose this.
According to Article 12 f of the Act on Foreigners, a residence permit may be granted an applicant, who is not considered as being a refugee on humanitarian grounds provided there are compelling reasons to do so, for example, serious illness or difficult general circumstances in his/her own country. A residence permit may also be granted on humanitarian grounds if the applicant has had a temporary residence permit in Iceland for two years or has stayed in Iceland for at least two years because of his/her application for asylum being under procedure by the Icelandic authorities, provided that the applicant can show that he/she fulfills the requirements for receiving a temporary residence permit in accordance with Article 12 g of the Act on Foreigners. His/her spouse, partner and children under the age of 18, who are neither married nor in formal cohabitation, may apply for a residence permit in accordance with Article 13 of the Act on Foreigners, if there are no grounds for granting them residence permits on humanitarian grounds.
Article 12 f, paragraphs 1 and 2, read as follows:
A foreign national may be granted a temporary residence permit even though he/she does not fulfil all the requirements of Art. 11, if there are pressing humanitarian reasons for so doing or due to his/her special connection with the country.
A temporary residence permit may be granted on the basis of humanitarian reasons if a foreign national can demonstrate an urgent need for protection, e.g. for health reasons, or due to the difficult social circumstances of the person concerned or due to difficult general circumstances in the person's home state or in a country to which he/she would be sent, or due to other events for which he/she cannot rightly be held responsible. Special consideration shall be given to cases where children are involved and a decision taken with a view to what is best for the child.
According to Article 1 of the United Nations Refugee Convention, and Article 46, paragraph 2, of the Act on Foreigners, a refugee does not have the right to asylum under certain special circumstances. This applies, for example, when there is strong reason to believe that a refugee has committed war crimes, crimes against humanity or a serious non-political offence outside of Iceland.
Article 44 a of the Act on Foreigners has further guidelines on what is meant by persecution, as there exists no single clear definition of the word persecution. The manual of the Office of the United Nations High Commissioner for Refugees says that it may be concluded from the United Nations Refugee Convention that if a person‘s life or freedom is threatened because of race, religion, nationality, political opinions or because of membership of a certain social group this is certainly persecution. Other serious human rights violations for the same reasons would also be considered as being persecution, however, it depends on the circumstances at any given time whether other actions that are based on prejudice can be called persecution.
Discrimination does not necessarily mean persecution but if discrimination has vast and serious consequences, this could be considered as persecution.
What does asylum and supplementary protection entail?
Article 12 j and Article 47 of the Act on Foreigners discuss residence permits for refugees and the legal effects of asylum.
A person granted asylum as a refugee in Iceland receives a residence permit for four years. After such time the refugee has the right to renew the permit unless there exist conditions for revocation (cancellation) (see below) or if denial of renewal is considered necessary because of state safety or public interest. A refugee is assisted in getting settled in Iceland and may work and study. A refugee may apply for and receive travel documents for refugees that are accepted by all EU member states and by most other countries in the world, however, he/she cannot use such travel documents to go to his/her own country. A refugee‘s residence permit may create a right for him/her to receive permanent residence permit and after five years of residence in Iceland he may receive Icelandic citizenship if he/she fulfills the other requirements of Act no. 100/1952 on Icelandic Citizenship.
A person granted asylum on grounds of subsidiary protection, as stated in Article 44, paragraph 2, of the Act on Foreigners, has the same rights as a person who is granted asylum on grounds of the Act‘s Article 44, paragraph 1.
The general rules of the Act on Foreigners regarding the reunification of families apply to refugees.
Granted asylum may be revoked if a refugee no longer falls under the definition of a refugee, cf. Article 44 of the Act on Foreigners. This applies both in instances where asylum has been granted on grounds of persecution or on grounds of subsidiary protection. The Act‘s Article 47 a contains the conditions for the revocation of asylum.
What is entailed in a residence permit on humanitarian grounds?
Residence permit on humanitarian grounds is described in Article 12 f and Article 46, paragraph 8, of the Act on Foreigners. Article 12 f, paragraph 1, also describes residence permit on grounds of his/her special connection to Iceland.
When an application for asylum is denied, the authorities are obligated to consider whether an applicant has the right to residence on humanitarian grounds. Residence permit on humanitarian grounds is granted for one year at a time, however, when renewed it is permissible to extend the permit for as long as two years. Like refugees, a person who is granted residence permit receives assistance to get settled in Iceland and he/she may work and study. He/she may receive travel documents for foreigners that are accepted in all EU member states and in most other countries in the world, however, he/she may not use them for going to his/her own country unless this is especially authorized. Residence permit on humanitarian grounds may create a right for him/her to receive permanent residence permit and after five years of residence in Iceland he may receive Icelandic citizenship if he/she fulfills the other requirements of Act no. 100/1952 on Icelandic Citizenship.
The general rules on family reunification apply to those who receive residence permits on humanitarian grounds.
According to Article 16 of the Act on Foreigners, a residence permit granted on humanitarian grounds may be revoked if an applicant has in considerable terms provided incorrect information or concealed information that would have been significant regarding his/her application. Revocation is also permissible when the conditions for the permit are no longer fulfilled or when this derives from the general administrative rules.