Post No.: 0895
Fluffystealthkitten says:
So according to Post No.: 0878 by Furrywisepuppy, the 3 key elements in the definition of a refugee is a person with a ‘well-founded fear of persecution’ – namely the risk (the fear or likelihood of), the persecution (a serious violation of fundamental rights or a comparable accumulation or repetition of discriminatory and disproportional measures related to one’s race, religion, nationality, membership of a particular social group or political opinion) and the proof (the general credibility of the applicant and their case). An assessment will be based on a holistic combination of these 3 elements (e.g. the more severe the level of persecution, and there’s independent proof that it’s a possibility, the lower the level of risk required). The bias is towards including an asylum seeker into the status of refugee, rather than excluding them or ceasing their status.
The persecution must be a serious violation of human rights. This can be physical and/or mental persecution – taking into account the vulnerability of the individual – with a well-founded fear of a present or future risk. The intention of the persecutor is, arguably, irrelevant. The persecutor can be a public official, like State police. Or a private agent, like a majority religious group with an extreme agenda (if the State tolerates or encourages this non-State agent, or possibly if the State is simply unable or unwilling to protect its citizens). The persecutor doesn’t even arguably have to be human, like a natural disaster.
An act that infringes upon someone’s fluffy fundamental rights needs to have a legitimate aim, and the means employed to achieve that aim need to be proportionate (efficient and necessary) too i.e. can a similarly effective measure achieve the same legitimate aim without violating anyone’s human rights?
The risk of persecution is, in principle, assessed based on the present and ongoing risk of persecution, rather than a past persecution that has already occurred and isn’t likely to reoccur in the present or future. However, even if a person has faced a past persecution that they won’t ever be subjected to again (e.g. female genital mutilation), they could still be regarded as a refugee because of the painful psychological trauma that they associate with their country of origin that would be re-triggered if they were to be returned there. Thus a person’s past persecution is taken into account when assessing their inclusion, or cessation.
Far-off anticipated threats (in the order of several years in the future or more) will probably be dismissed in the present – like the risk of an island totally submerging in a couple of decades time due to climate change, especially if a person can be relocated at another place within their own country in the meantime, and the government is implementing measures to mitigate the effects of their island submerging.
The opinion on the level of risk required to reach a ‘well-founded fear’ is mixed according to case law. Even if one sets a number like ‘50% risk’ – how is that determined in practice?! These are often unique individual situations – unlike tossing a coin many times until one determines the expected average.
The location of the persecution is taken into account too. The usual place of persecution is in one’s country of nationality but, say, a student studying abroad might suddenly become a refugee because of a factual change in situation in their country of nationality, or because they’ve become politically active against the regime in their country of nationality whilst they were abroad. They’ll thus become a refugee sur place, or in situ.
If there is an internal protection alternative i.e. if only part of a person’s country of nationality presents a risk of persecution to them but not another part – then they must ‘reasonably be expected to settle’ in this other part ‘safely and legally’ instead of seek asylum in another country.
The status of refugee can be ceased or terminated because of non-cooperation by the refugee, or voluntary reasons by the refugee (e.g. because they’ve acquired the nationality of a host country). The cessation of refugee status can also occur if their country of origin sufficiently and permanently no longer presents a risk of persecution towards the individual (e.g. the dictator who was persecuting the refugee there has been deposed and will be replaced by a regime that does not present a similar or new risk of persecution to the individual), plus if the host country decides to want to return them there – unless there are compelling reasons, arising out of the refugee’s previous persecution, to refuse the protection of their country of nationality.
The international protection afforded by the Refugee Convention is in effect a substitute in the absence of national protection. Thus when national protection becomes available again, this substitute ceases to be required. But cessation cannot be automatic – there must be a procedure for assessing whether the cessation of refugee status should apply for the individual.
A refugee may temporarily return to their country of nationality; perhaps to furtively attend a family funeral. This’ll be at their own risk. Really, the authorities of the host country that has recognised their refugee status should be notified of this exceptional temporary return. Yet a temporary return won’t trigger a cessation of refugee status on its own.
Another reason for excluding a person from the international protection afforded by the Refugee Convention might be because they already benefit from protection elsewhere at an international, more regional, or national, level (like the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).) Having the nationality of the host country would also make it unnecessary for international protection to apply. The same if one ultimately benefits from the same rights as the nationals of the host country – like European Union citizens in other EU member States. If any of these protections are taken away though, the fall back position is the international protection afforded by the Refugee Convention.
A person may, potentially, be deemed unworthy of Refugee Convention protection if they have committed war crimes, crimes against peace, crimes against humanity or acts contrary to the purposes and principles of the United Nations, according to the relevant treaties in force and case-by-case facts. The same if they have committed serious non-political crimes, like murder rather than just protesting – fugitives fleeing after committing a serious non-political crime outside of a country of refuge shall not escape facing justice! The political or non-political nature, as well as severity, of the crime is up to the host country to decide – for instance, the government in the country of origin may regard homosexuality as a serious non-political crime, but the country of refuge may regard it as a political one. If the person belonged to, say, a terrorist group, they must be assessed according to their own individual contributions to the group and any actions rather than be deemed guilty merely due to their group affiliation.
A final, hypothetical, reason for the exclusion or denial, or cessation or withdrawal, of refugee status could be to protect the safety of the citizens in the host country. The host country is entitled to ensure its own security. However, in any and all cases, a person must never be sent back to a place where they’ll face a sufficient risk of torture, degrading treatment or death i.e. refoulement. Meow.
There’s a kind of hierarchy in human rights protections – those who cannot benefit from an upstream protection can benefit from a more downstream protection. The first level is national, and the role of the State is to protect its nationals. The second level is the statutory international protection provided by the Refugee Convention, which catches those who lack any sufficient national protection. The third level is subsidiary or temporary regional protections, which complement the Refugee Convention. And the fourth level is subsidiary-subsidiary protection, which catches those who are deemed unworthy of Refugee Convention or subsidiary protection because they had committed severe violations of human rights like crimes against humanity.
Protection for individuals (persecution as an individual) is entrenched in the Refugee Convention at the international level. The Refugee Convention does not cover protection in the event of a mass influx.
Protection for groups (persecution for being part of a group), where an individual examination of each individual person’s case will not be possible, may however be available through subsidiary, temporary, or subsidiary-subsidiary, protection under regional treaties (e.g. temporary measures in situations of a massive influx of displaced people).
Subsidiary region-specific instruments (e.g. via the European Union or African Union) can therefore complement international protection where there are procedural or substantive limitations or gaps in the latter, such as by extending the grounds of persecution that determine the definition of ‘refugee’, or by implementing a prima facie (i.e. accepted as true in the absence of evidence to the contrary) refugee status. Regional protections can also better adapt in time and space to new situations arising within their regions.
The EU has also had, for a while, a temporary measure available for all members to share the responsibility for helping out in the case of a sudden massive influx of displaced persons. Yet this was never implemented even during the 2015 European migrant crisis that involved many displaced Syrians, Afghans, Tunisians, Libyans and Iraqis. Countries, like Italy, where the displaced people first entered the EU, wanted to activate the measure, but some other countries did not because they weren’t affected by the influx. Thus there was a lack of solidarity, due in key part, to the rules set out in the Dublin Regulation.
For EU member (and non-EU member but signatory) States, the Dublin Regulation (which evolved into Dublin II, and is presently at Dublin III) is a regime for determining which State is responsible for an asylum application. It works imperfectly due to the fact that certain States – namely those on the borders of southern and eastern Europe – experience more entries of migrants than other States, and the regime stipulates that a migrant should be processed at the first member State they entered in from outside the EU; unless this is overridden by their family situation, visa or student residence permit, or a time limit. Unaccompanied minors get special rules. The reception conditions, procedures and access to protection for migrants are also highly variable depending on which country processes them. The Regulation does however facilitate a shared distribution of asylum seekers amongst its members, thus those States along southern and eastern Europe shouldn’t be overly burdened by long-term refugees. The Dublin Regulation no longer applied to the UK post-Brexit, and with that, the UK lost the ability to return asylum seekers to EU countries.
The temporary measure directive was finally implemented for the first time in 2022 for persons fleeing Ukraine. Many observers argued that the difference this time was that displaced Ukrainians were mainly ethnically white people, while displaced Syrians, Afghans, Tunisians, Libyans and Iraqis were not!
Subsidiary-subsidiary protection exists because someone cannot, under any circumstances, be returned to a country where they’ll face a risk of torture, inhuman or degrading treatment, or being killed. The non-derogable nature of the prohibition of torture protects anyone, no matter what they’ve done. The basis for this is embedded in the international UN Convention Against Torture (CAT) and, for instance, the regional European Convention on Human Rights (ECHR). It’s basically an application of the principle of non-refoulement. Such a person, who cannot be returned, will end up being ‘tolerated’ in the host territory, with an undefined status or rights. Well in practice, they’ll likely be granted a form of temporary humanitarian regularisation, which will allow them to stay on humanitarian grounds. This’ll possibly be accompanied by a criminal prosecution for their acts, and State control of the person – individuals who’ve committed serious human rights violations should be prosecuted, either by the International Criminal Court or a national court within the framework of laws of universal jurisdiction.
Meow.
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