Post No.: 0878
According to the 1951 Convention Relating to the Status of the Refugees a.k.a. the Refugee Convention or Geneva Convention of 1951; which was later modified by the 1967 Protocol Relating to the Status of Refugees – the definition of a ‘refugee’ shall apply to any person who has fled their country owing to a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
They must also be outside (i.e. have fled) the country of their nationality and be unable or, owing to such fear, unwilling to avail themselves of the protection of that country. (We must note here that the vast majority of displaced people are internally displaced i.e. displaced within their own country and thus won’t technically count as refugees.) If they don’t have a nationality and are outside the country of their former habitual residence, they must again be unable or, owing to such fear, unwilling to return to it.
If someone has multiple nationalities then their ‘country of nationality’ shall mean each of the countries of which they’re a national. And they shall not be regarded as lacking the protection of a country of their nationality unless each and every country that they’re a national of presents a well-founded fear of persecution towards them as described above.
So a refurgee experiences an enormous risk to their safety that they felt no choice but to leave and seek refuge outside their country. Their own government cannot, or is unwilling to, protect them from those dangers.
Refugees have a right to international protection. But one thing to realise is that we have the right to leave any country but we only have the automatic right to enter a country of our own nationality. The right of asylum is a right from the State – it’s a matter of State sovereignty to decide whether or not to grant someone legal access to their territory. A hosting State is entitled to protect its own interests where a large number of immigrants may overwhelm the administrative facilities and disrupt the general local economy. A large involuntary emigration may also present problems for a source State e.g. the brain drain of skilled professionals.
Meanwhile, the right to asylum is an individual right – it’s the right for a person to not be returned while their application for international protection is being examined. This means that everybody effectively has a provisional right to asylum if they express a fear of returning to their country of origin. They benefit from the principle of non-refoulement – which guarantees that no one should be returned to a country where their ‘life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This principle is the foundation of refugee law and is enshrined in the Refugee Convention.
Thus an ‘asylum seeker’ is anyone who has fled their country and is seeking protection in another country but has not yet been legally recognised as a refugee and so is presently waiting to receive a decision over their asylum claim. They benefit from the principle of non-refoulement even if they’ve entered the territory illegally. They have the right to have their fundamental human rights respected but don’t automatically have a right of residence in the receiving country.
There’s no internationally accepted legal definition of a ‘migrant’, but they could be regarded as people staying outside their country of origin who aren’t refugees or asylum seekers. They may have left their country to e.g. work, study or join their family; perhaps due to poverty, political unrest, gang violence or some other serious situation in their country of origin. Regardless of their status though – they’re still entitled to all the protections afforded by their fundamental human rights, thus governments must protect them from e.g. xenophobic violence and forced labour.
A ‘transmigrant’ is someone who’s in transit in, or merely passing through, a third country, with the goal of reaching another third country e.g. people in the ‘Calais jungle’ who wanted to reach the UK during the 2015 European migrant crisis.
The definition of ‘refugee’ is open to an evolving interpretation for new situations according to the Refugee Convention – most notably via the ground of persecution because of one’s ‘social group’ membership. A ‘social group’ may cover groups like homosexuals or transsexuals, and is sort of like a safety net to capture all kinds of marginalised groups who might yet be anticipated.
The persecuted may self-identify as part of a persecuted group. Or the persecutors may identify someone as part of a group that’s persecuted e.g. someone who self-identifies as German but is imputed by his/her persecutors as Jewish.
Reasons for fleeing one’s country include war, natural disaster, food insecurity, climate change, gender-based persecution or individual persecution due to one’s political views. Those who flee are usually scared, and they can be minors, get separated from the rest of their family, raped along the way, trafficked, or exploited by those who’ll purport to help them cross borders. Some refugees resettle, most eventually return to their origin country, while many end up becoming Stateless. (No one can be lawfully made Stateless but some are born or become so due to gaps in laws or other reasons.)
The Migration Data Portal website presents migration statistics. International migrants represent ~3.5% of the world’s population. Children are dramatically over-represented. Most hosts are neighbouring countries (which is logical because most displaced people aren’t jet-setting to find sanctuary!) but they’re usually ‘developing’ countries that are struggling themselves e.g. Syria to Turkey, Venezuela to Colombia, Afghanistan to Pakistan, and South Sudan to Uganda.
This negative right for someone to not be expelled or extradited to a country where they’re at risk does have some limits. The principle of non-refoulement has a personal scope – relating to a person’s status (asylum seeker or refugee?), their transit trajectory, behaviour (are they a danger to society?) and the method of expulsion (individual or collective?) It also has a territorial scope – relating to the question of when a State is bound by the principle of non-refoulement, which depends on where the person is located. If they’re located on the territory of the receiving State, its territorial waters, its borders, or in the ‘neutral’ international zone of an airport on their territory, then the State is bound by the principle. If they’re located in international waters, the airport departures area in the country of origin, or the embassy or consulate of the receiving State located in the country of origin or in a transit country, then the answer is more controversial, as evident in case law.
States still have discretionary powers to not grant refugees either a temporary or permanent residence permit. Sometimes they just simply tolerate a refugee on their territory, often in collaboration with the UN High Commissioner for Refugees. Other times they’ll be resettled with a residence permit in a third country. Nevertheless, recognised refugees are lawfully present in the territory of the contracting State, and can only be expelled on the grounds of national security or public order in accordance with a due legal process – although they still cannot be sent to anywhere where they’ll face torture, cruel, inhuman or degrading treatment or punishment, or other irreparable harm, because the protection against torture is absolute. If country A expels or extradites someone to country B, where they get tortured, it’ll be country A who’ll be culpable for that torture – this is the concept of ‘vicarious human rights violation’. The indirect violation of human rights is therefore prohibited too. (Post No.: 0862 broached human rights violations.)
A refugee may also lose their refugee status under a cessation clause because they no longer face enough fear of persecution in their country of origin.
It can get complicated when people transit through, or temporarily stay in, a chain of countries while they escape persecution in their country of origin. A ‘chain refoulement’ sends a refugee back to a country where they’ll in turn face a risk of being sent back to the country where their life is put at risk. We cannot automatically presume their safety in a transit or third country.
Collective/mass expulsions are prohibited once a group of migrants enter the territory of a receiving State – every individual needs to be assessed on a case-by-case basis. However, the collective implementation of a sum of individual decisions is allowed.
…Migration has always existed and will always exist, with evolving elements, thus the law needs to foresee and adapt to new or growing realities like environmental/climate refugees and pandemics. Whilst the Refugee Convention may possibly cover such situations already, it may be useful to create specific tools that are more suited to them? (Well the Protocol Relating to the Status of Refugees demonstrated that the Convention has been updated before.) It’d be counterintuitive to the protection of life to wait for deaths to be frequent or considerable before new laws are drafted. A more concerted international approach – a global management for migration like that envisaged by the Global Compact for Migration and the Global Compact on Refugees – is perhaps necessary?
Regarding global pandemics – border closures are understandable yet make it difficult for the persecuted to flee and access safe land; and with migrants condensed in labour or asylum seeker camps, detention centres or unsanitary urban dwellings, they’re at high risk of contracting disease. Pandemics amplify the tensions between sovereignty, public health and fundamental rights like non-discrimination.
Regarding environmental/climate situations – if the State is unable to protect its citizens who suffer the consequences of climate change, what would the ground for persecution be? Who would be the author of the persecution? How much risk of persecution is required? And would the term ‘refugees’ be correct?
The ground could be a particular social group who faces persecution from an environmental situation because they live near the coast and their homes are becoming submerged due to rising sea levels? It has also been argued that the author of persecution doesn’t matter – the question is whether or not the State is able to protect against persecution? And unlike in criminal law, any intention is irrelevant. The level of risk may need to be sufficient to present a hopeless situation though e.g. when preventative or mitigating measures taken by the government of the country of origin are no longer realistic or forthcoming. Such opinions are debated however.
‘Soft law’ (e.g. declarations, compacts, resolutions) are non-binding texts. But they can potentially evolve into future legally-binding ‘hard law’ (e.g. treaties, conventions, covenants). For example, the 1948 Universal Declaration of Human Rights later led to the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Hard law treaties have monitoring bodies, and States that sign and ratify a treaty are held accountable before courts or other bodies to that treaty’s obligations, at the request of other actors.
The 2015 European migrant crisis cemented the need for a serious inter-State debate on migration issues. States realised they cannot smoothly govern migration individually – it requires international furry cooperation. This led to the UN New York Declaration on Refugees and Migration in 2016.
Host countries and their local populations want to protect their own national interests. And migrants or asylum seekers find it difficult to make their voices heard to shape law and policies because they don’t have a vote in the host country’s democratic debates (thus they’re in an even worse situation than the local ethnic or disabled minorities!) This means that the judgements of judges in appellate courts are ever more crucial in guaranteeing their fundamental rights.
It’d help to better educate the populations of migrant-receiving countries, to learn about the tough situations that migrants face, and to reduce the stereotypes and hostile reactions towards migrants.
And this is what this short series of posts on refugees is about…