The term ‘refugee’ has a long history of usage to describe ‘a person who has sought refuge’ in broad and non- specific terms.
Modern refugee law emerged after World War II, when political persecution displaced millions. After the Nazis’ rise to power and the Holocaust, more than 340,000 Jews emigrated from Germany and Austria. During the war, they faced political resistance from countries that did not want to grant them asylum, and at least 100,000 took shelter in countries that were subsequently conquered by Germany. After the war, more than 250,000 Jews became “displaced persons” and were given asylum by various countries. The 1951 Refugee Convention (part of the broader Geneva Convention) was created in direct response to the Holocaust and the failure of the Allies to save 6 million Jews. The Convention was passed by a special United Nations conference on 28 July 1951 and entered into force on 22 April 1954. It was initially backward looking, in the sense that it was limited to protecting European refugees who became refugees before 1 January 1951. The 1967 Protocol gave the Convention new life, making it a living, forward looking instrument that offered protection on an ongoing basis.
Every year, millions of persons invoke the protection of international refugee law, making it one of the most relevant international human rights mechanisms and is almost certainly the single law that has saved the most lives in history. The only international legal norms applying specifically to refugees at global level are the 1951 UN Convention relating to the status of refugees (Geneva Convention) and the 1967 Protocol relating to the status of refugees. The Geneva Convention and its Protocol have been ratified by almost 150 states to date (however a number of countries, such as the Gulf States and India, are not among the signatories).
The convention set the international definition of who is a refugee — and those who would not be considered refugees (war criminals, namely) — what rights refugees have, and what legal protections and other assistance they should be given by the countries that signed the document.
According to Article 1 of the 1951 UN Convention, as modified by the 1967 Protocol, a refugee is defined as a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.
This definition implies that several qualifying conditions apply to be considered a refugee:
• Possession of a fear that is well founded rather than fanciful
• Of treatment that is so bad it amounts to being persecuted
• For one of five reasons, referred to as ‘Convention reasons’: race, religion, nationality, membership of a particular social group or political opinion
• Being outside one’s country
• Being unable or unwilling to obtain protection in that country
All of the conditions need to be met for the person to be considered a refugee. For example, a person might have a well founded fear and be unable to get protection but if that person does not fear being persecuted for a Convention reason then the person is not a refugee in legal terms. Another person may meet all the other criteria for refugee status but be living in a refugee camp in their own country, in which case he or she is not a refugee and instead would often be referred to as an Internally Displaced Person.
The definition of refugees was actually intended to exclude internally displaced persons, economic migrants, victims of natural disasters, and persons fleeing violent conflict but not subject to discrimination amounting to persecution.
The Convention establishes a duty on states to accord rights to refugees that in certain areas are on a par with those of their population, while in others are similar to those granted to the most favoured aliens or to aliens in general.
Refugee rights incrementally depend on the legality of their situation in their host country and the duration of their stay there. The first tier of rights applies merely on the basis of presence within a state party’s territory, even if this presence is illegal. Such rights include freedom of religion (Article 4), property rights (Article 13), the right to primary education (Article 22), the right to access to the courts (Article 16(1)), a limited right to move freely, subject to justifiable restrictions (Article 31(2)) etc. The second tier of rights are to be granted when refugees are ‘lawfully present’ in the host state (for example while their asylum claim is processed), including the right to self-employment (Article 18) and the right to move freely, subject to regulations applicable to aliens in general (Article 26). Other rights are accrued when refugees are ‘lawfully staying’ in a state party (usually after recognition of their refugee status by the state concerned), including the right to paid employment (Article 17) under conditions no less favourable than for other aliens. The right to work without any restriction accrues only after a period of three years’ extended residence (Article 17(2)). The absence in the Convention of a definition of the concepts of ‘present lawfully’, ‘staying lawfully’, or ‘residing lawfully’ affords states considerable discretion in according rights to refugees. In practice, states are free to grant permanent or temporary residence and to assign, or decline rights to work and move freely. This leads to great differences as regards refugees’ rights.
“Well founded fear”
There are two dimensions to “well founded fear” under the Refugee Convention:
The refugee must generally show that he or she is telling the truth. If the whole account of what happened is false then usually (but not always) there will be no well founded fear if the person is returned.
The level of risk of something bad happening if the refugee is returned must be more than fanciful, otherwise it is not “well founded.”
Lawyers and judges in the UK use a standard of proof which is more generous than the normal civil standard of the balance of probabilities. With the balance of probabilities, a person must show that something is more likely than not, or that there is at least a 51% chance of it happening.
In refugee cases the standard of proof is expressed as “reasonable degree of likelihood” or “real risk”. This standard is applied both to assessing whether the refugee is telling the truth and what the chances of something bad happening are in the future.
The meaning of “being persecuted” is not further defined in the Refugee Convention itself. This is deliberate: it allows the meaning of the word to be flexible and adaptive. This is useful for refugee protection purposes, but it does mean that the student of refugee law will need to look to various other sources and reference points in order to understand the contemporary meaning of the word and how it has evolved. These sources include the views of UNHCR and refugee law academics, other relevant international legal instruments and the domestic and international courts.
The UNHCR Handbook begins its description of persecution as follows at paragraph 55:
There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights — for the same reasons — would also constitute persecution.
The courts have been wary of giving specific guidance on the level of ill-treatment required before that ill-treatment can be described as ‘being persecuted’. The reason for this apparent vagueness is simply that the most judges realise that rigid guidance is inappropriate. As Guy Goodwin-Gill says in The Refugee in International Law, 2nd ed. (Oxford, 1996): here being no limits to the perverse side of human imagination, little purpose is served by attempting to list all known measures of persecution. Assessments must be made from case to case by talking account, on the one hand, of the notion of individual integrity and human dignity and, on the other, of the manner and degree to which they stand to be injured.
5 Refugee Convention reasons
The five Convention reasons — race, religion, nationality, social group and political opinion — are very important because without showing that the future risk is because of one of these reasons, a claim to refugee status will fail.
This means that some people commonly referred to as refugees are not formally refugees within the legal meaning of the Refugee Convention. For example, people who flee their homes due to famine or flooding or environmental disaster do not fear persecution for any of the Convention reasons.
Most of the Convention reasons are fairly self-explanatory. We all know roughly what is meant by race, religion, nationality and political opinion. Some further explanation and definition can be found in the EU Qualification Directive and in case law but these words are mainly interpreted within their ordinary meaning.
The Convention reason most open to interpretation is “membership of a particular social group.”
The principle of non-refoulement
The purpose of the Convention is to assure protection to refugees, as defined in the Convention, by ensuring that they are not returned to their country or sent to any other territory where they could face persecution. Article 33 puts forward what has become known as the principle of non-refoulement: ‘No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This protection does not apply however to persons who represent a security threat to their host country (Article 33(2)). The Geneva Convention does not exclude removal of asylum-seekers to safe third countries. Asylum-seekers unlawfully present in a state can be required to seek protection in another country, but those lawfully present cannot be expelled from its territory (Article 32).
This principle has become part of other international human rights treaties either explicitly (Convention against Torture, Article 3) or implicitly through the relevant jurisprudence (European Convention on Human Rights, Article 3 and International Covenant on Civil and Political Rights, Article 7) and, according to some scholars, also part of customary international law, making it universally binding. While in the Refugee Convention, the scope of the non-refoulement principle is limited to refugees, and exceptions to it (for reasons of national security) are permitted, these limitations do not exist in the other three treaties. States signatories of these international treaties are thus obliged not to return to their countries persons who may face torture or cruel, inhuman or degrading treatment or punishment. They are however not entitled to any other rights provided under the Refugee Convention since they are not refugees within its scope.
Regional refugee protection instruments
In addition to this universal instrument, several regional instruments also have evolved.
The Geneva Convention definition of refugees remains dominant in the Treaty on the functioning of the European Union (Article 78) and the EU Charter of Fundamental Rights (Article 18). The EU has an extensive set of legislation on asylum-seekers, which has often been the object of critical review by the UNHCR. The Qualification Directive also foresees that other persons entitled to international protection should be treated on a par with refugees.
In 1969, the Organization of African Unity (OAU) formally recognised the need for an expanded definition of refugee within the African context. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which had 42 signatories as of 1993, repeats the UN definition but adds that:
The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.
In 1984, ten Central American states signed the Cartagena Declaration on Refugees, which, in non-binding language, extended the definition of refugee beyond the 1951 Convention to include “persons who have fled their country because their lives, safety, or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed the public order.”
Despite the variations in terms and the different estimates that result, it is fair to say that the definition of refugee, at its core, encompasses people who have fled their country and fear persecution or violence if they return. It is also fair to say that this definition, however broadly construed, leaves out millions of vulnerable people, including all those who have not crossed an international border.
Determining refugee status can be a messy and unpredictable process. Caseworkers who handle applications for asylum frequently lack the resources or information to make decisions with confidence and the applicants often dispute the outcome. Many asylum seekers are denied protection, but still have a genuine fear of returning to their own country. We have no better alternative than to uphold the Refugee Convention and examine individual cases with care, but it’s unhelpful to insist that refugees and other migrants are fundamentally distinct. ‘Mixed migration’ is not a checkerboard of black and white, but a jumble of different histories, resources, and entitlements.
SOURCES: UNHCR, United NationS, IOM
IMAGE CREDIT: WikiCommons / Vito Manzari from Martina Franca (TA), Italy [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)]