By Daniyal Shajar
Programme Leader, Refugee & Border Control
This paper is the first of two instalments in the ‘Redefining Refugees’ series, with the first instalment delivering policy recommendations on the “refugee” definition, and the second instalment conducting in-depth analysis on the implications of “refugee” definition on asylum procedures.
“Refugee”, “migrant”, “economic migrant”, “forced migrant”, “asylum seeker”, “illegal immigrant”, “émigré”, “person on the move”, “internally displaced person (IDP)”, “displaced person”, “stateless person” are just some of the terms used – sometimes interchangeably – when discussing forced displacement. The issue is not entirely the terminology itself, but rather how terminology is applied by countries in border and asylum procedures. There is no doubt that many countries have adopted closed borders – particularly in Europe. There is also no doubt that closed borders have failed to prevent or solve the refugee crisis in Europe, and have served only to force Greece and Italy to handle all arriving persons. The solution is not to have closed borders, but to have effective borders.
This paper addresses: (A) the role of “transit countries” and politicisation of asylum in modern refugee crises, and how the ambiguity in forced displacement terminology has been manipulated by countries to ban arrivals based on nationality; and (B) the need to facilitate movement of persons by modernising the 1951 Convention1951 Convention Relating to the Status of Refugees, available at: http://www.unhcr.org/uk/3b66c2aa10 definition of “refugee”.
(A) “Transit Countries” & Politicisation of Asylum
Anti-refugee sentiment has been the defining characteristic of Europe’s refugee crisis. Discriminatory asylum procedures and anti-refugee “transit countries” have led to humanitarian concerns of refugees being completely disregarded, and instead self-interested myopia has led to a crusade for ‘secure’ borders. “Transit country” refers to a temporary host country, where formal asylum is not sought or desired by the refugee. To exemplify anti-refugee policy of transit countries; Austria and the Visegrad Four bloc (Hungary, Poland, Slovakia and the Czech Republic) have resisted European Union (EU) refugee relocation scheme quotas, erected border fences, deemed “refugees” in Europe to be predominantly “economic migrants”, and have actively rejected asylum applications from Muslims, while promoting protection for Christian refugees.
Discriminatory rejection or acceptance in asylum violates refugee law, as under international law ‘granting asylum is a humanitarian and apolitical act’Refugee Protection: A Guide to Refuge Law; available at: http://www.unhcr.org/uk/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html – discrimination based on nationality clearly deviates from ‘apolitical’. Discriminatory asylum is not restricted to transit countries, however, and is also prevalent in “destination countries”; for example the German focus on Syrian refugees and comparative rejection of Afghan refugeeshttps://www.rt.com/news/358905-germany-afghan-refugees-karzai/ http://www.aljazeera.com/news/2016/10/eu-deal-clears-deportation-unlimited-afghan-refugees-161004132025865.html . Discrimination is applied predominantly through use of the “economic migrant” classification, and also through the European Dublin RegulationRegulation (EU) No. 604/2013, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0604&from=EN concepts of ‘safe third country’Ibid. Art.3(3) and point of ‘irregular border entry’Ibid. Art.13(1) .
‘Unlike migrants, refugees do not choose to leave their countries; they are forced to do so. Economic migrants are persons who leave their countries of origin purely for economic reasons, to seek material improvements in their lives. The key difference between economic migrants and refugees is that economic migrants enjoy the protection of their home countries; refugees do not. Economic migrants do not fall within the criteria for refugee status and are therefore not entitled to benefit from international protection as refugees.’
–“Refugee Protection: A Guide to Refugee Law” Chapter 3: Recognizing Refugees, UNHCR
The ‘purely economic reasons, to seek material improvements in their lives’ rationale used by the Office for the United Nations High Commissioner for Refugees (UNHCR) appears to disregard the dangers, risks and desperation of persons travelling over many weeks and months in search of refuge. Though the UNHCR has evolved from only recognising “persecution” as a cause of displacement in the 1951 Convention – and now, albeit selectively, recognises conflict as a direct cause of displacement – economic consequences of conflict continue to be ignored as a cause of displacement. The justification used by UNHCR of economic migrants being able to ‘enjoy the protection of their home countries’ does not take into account potential inability of post-conflict governments to offer the adequate ‘protection’ referred to.
An example of prevalent use of the “economic migrant” classification can be seen in the German response to Afghan refugees. German Ambassador to Afghanistan, Markus Potzel, commented ‘more than 50 percent of Afghan asylum seekers in Germany were “economic migrants” who failed to prove that “their lives were in danger” and had therefore been rejected asylum’http://www.rferl.org/a/afghanistan-migrants-european-dream-unfulfilled/27600972.html . German dismissal of Afghan refugees indicates disregard to the lengthy journey taken by refugees to reach destination countries, and to the dangers and vulnerability endured. To suggest the cause of displacement, despite extreme measures taken by persons to seek refuge, does not justify a genuine need for asylum due to a perceived ‘purely economic reason’ conveys an insular and unjust approach to asylum claims.
Further, the economic migrant classification has been misused by countries in order to discriminate against persons based on nationality, with the aim of politically securing borders and with disregard to humanitarian concerns. In late 2015, the Balkan borders were progressively restricted with initial blanket bans on nationals of all countries but Syria and Afghanistan, and then allowed passage only to Syrians.Fortress Europe: Buying a Way Out of the Refugee Crisis, IISA, available at: http://iisa.org.uk/wp-content/uploads/2015/12/Fortress-Europe-dec-2015-final.pdf
Host countries must be made to consider not just the cause of displacement, but also the consequences of displacement from the country of origin. If denial of asylum and subsequent return would cause the person to suffer any detriment to the conditions which caused their displacement (for example, if the person had spent their life savings), it should be prevented – parallel to the ideology of non-refoulement. Also, conflict-based economic causes of displacement should be recognised and not disqualify persons from achieving refugee status. Including conflict-based economic causes to the “refugee” definition will also serve to eliminate the economic migrant classification being used as method to apply discriminatory, political blanket bans on persons based on their country of origin.
(B) Modernising the Convention Definition to Facilitate Free Movement
As acknowledged above, the current climate of closed borders must be taken into account when proposing significant changes to refugee law. A new definition of “refugee” must be realistic and achievable globally. Taking precedent from the Office for the Coordination of Humanitarian Affairs (OCHA) Guiding Principles on Internal Displacementhttp://www.unhcr.org/uk/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html , existing treaty and customary elements of international law can be codified to better clarify duties owed to refugees – without developing a new convention. Refugee law could be codified and expressed as a modification of the Convention definition to reflect modern obligations and expectations.
Proposed Definition of “Refugee”
‘A “refugee” is a person who:
(a) is outside the country of their nationality, or has been displaced from the property of their habitual residence,
(b) due to any of the following:
(i) an internationally recognised fear of being persecuted for reasons of: race; religion; nationality; membership of a particular social group or political opinion,
(ii) an internationally recognised threat to their lives, safety, freedom or livelihood by: national and/or international conflicts; conflict-based economic causes; generalized violence; or massive violation of human rights,
(i) is unable or unwilling, owing to causes outlined in (b), to avail themselves of the protection of the country of their nationality,
(ii) who, not having a nationality, and being outside the country or displaced from the property of their former habitual residence, as a result of causes outlined in (b), is unable or unwilling to return to it,
(d) in cases of uncertainty as to fulfilment of causes outlined in (b):
(i) all persons forming part of a large-scale influx are to be regarded as refugees on a prima facie basis through group determination,
(ii) if the denial of refugee status and subsequent deportation would further detriment the threat to life or freedom which caused displacement, and the country of origin in question has internationally recognised instances of causes outlined in (b), the cause of displacement is to be accepted as legitimate.”
The definition uses the Convention definition as a foundation, while incorporating modern practices of the application of the “refugee” definition – directly clarifying the principle of non-refoulement [see proposed definition section (d)(ii)] and including updated “refugee” definitions from international agreements [see proposed definition section(b)(ii)] such as the 1984 Cartagena Declaration on RefugeesAvailable at: https://www.oas.org/dil/1984_Cartagena_Declaration_on_Refugees.pdf .
Acknowledge “Transitionary” Phase of Displacement
Following the aforementioned importance of transit countries, there is profound need for the creation of legal pathways for the movement of persons across borders. By developing an understanding of “refugee” status not directly forcing a host country to provide complete asylum – through encouraging complementary and temporary protection to refugees – systems such as humanitarian visa schemes can then be implemented to prevent humanitarian crises at borders.
The broadening of the “refugee” definition, and multiple legal pathways available for host countries to provide for refugees, will help solve the current stalemate at borders – as alternative, less onerous legal pathways will encourage the reopening of closed borders. Eliminating ambiguous, political terminology such as “economic migrant”, and pursuing a practical and effective “refugee” definition will provide solutions to both the overwhelmed borders and humanitarian crises faced by refugees.
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