The recent development and perception of the right to seek asylum in the qualitative comparative context of the European charter of fundamental rights and the convention governing the specific aspects of refugee problems in Africa

Conze, Viviean

The recent development and perception of the right to seek asylum in the qualitative comparative context of the European charter of fundamental rights and the convention governing the specific aspects of refugee problems in Africa

Thesis / Dissertation

2026

Publisher

University of Cape Town

Department

School For Advanced Legal Studies

Faculty

Faculty of Law

Abstract

This qualitative comparative legal analysis examines the regional differences of the right to seek asylum in Europe and Africa. As both regions struggle to cope with the surrounding issues of migration flows and the Mediterranean Sea as a frequently chosen route for African asylum seekers to Europe, the aim of this thesis is to compare how the two regions legally regulate the right to asylum. The reason for this comparison is particularly Europe's recent reform of its Common European Asylum System (CEAS), which was agreed on after eight years of discussions in order to restructure the responsibilities of its member states and their asylum procedures. The thesis utilises various methods and comparative theories in order to obtain the qualitative differences. First, laws, literature and cases concerning the right to asylum in the respective region were collected and studied. Next, the selected data acquired from the studies was systematically reviewed and evaluated to identify whether a right, an obligation, a procedure or else exist. Thirdly, the findings were compared by using comparative methods, such as functional, law-in-context and historical legal theories. The identified differences are mainly that the new CEAS is more detailed than the African asylum system. The new CEAS includes, for example, a new solidarity mechanism among member states, reception conditions and asylum procedures. Conversely, the African system holds a broad definition of refugeehood and provides protection from generalised violence and war. On the contrary, the European Convention on Human Rights (ECHR) and the new CEAS base their protection on a distinctly individualised procedure that focuses on personal risk, despite the alternative of subsidiary protection. The thesis concludes that even though both regions broadly align with the prerequisites of the 1951 UN Refugee Convention's right to asylum, significant divergences in their scope of international protection and their procedural developments remain in place also after Europe's reform of the CEAS. In contrast to Africa, Europe has even drawn a moat around the so called ‘Fortress Europe' with the new CEAS, where human rights of asylum seekers slowly but steadily drown.

Keywords

Human rights law

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