5 November 2016
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” are just some of the terms used (often interchangeably) when discussing forced displacement. The issue is not entirely the overlapping terminology itself, but rather how this overlap is exploited in border policy and the asylum process. There is no doubt that many states 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 manage all arriving persons and prevent their migration further north. 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 host states to ban arrivals based on nationality; and (B) the need to facilitate movement of persons by modernising the 1951 Convention definition of “refugee”.((1951 Convention Relating to the Status of Refugees, available at: http://www.unhcr.org/uk/3b66c2aa10 ))
(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 disregarded in lieu of the crusade for ‘secure’ borders. “Transit country” refers to a temporary host state, where formal asylum is not sought or desired by the refugee. As the archetype of anti-refugee transit country policy; Austria and the “Visegrad Four” bloc (Hungary, Poland, Slovakia and the Czech Republic) have resisted European Union 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’ – discrimination based on nationality clearly deviates from ‘apolitical’.((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 )) Discriminatory asylum is not restricted to transit countries, however, and is also prevalent in “destination states”; for example the German focus on Syrian refugees and comparative rejection of Afghan refugees.((https://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 Regulation concepts of ‘safe third country’ and point of ‘irregular border entry’.((Regulation (EU) No. 604/2013, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0604&from=EN ))((Ibid. Art.3(3) ))((Ibid. Art.13(1) ))
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“Economic Migrant”
The definition of “economic migrant” provided by the UNHCR is dubious at best, stating:
‘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 statement that persons cannot ‘choose’ to flee from persecution or violence as displacement is their only option, whereas severe economic instability, poverty and destitution due to ongoing conflicts require a malignant “choice” of displacement – or “opportunistic economic migration” – is severely flawed. The stigmatisation of persons migrating due to ‘purely economic reasons, to seek material improvements in their lives’ by the UNHCR not only allows for asylum seekers to be refused asylum based on even the slightest indication of economic motivation, but also ignores crucial economic factors of displacement. Further, the second characteristic of “economic migrants” offered by the UNHCR, where these persons allegedly ‘enjoy the protection of their home countries’ does not take into account the inabilities and inadequacies of post-conflict governments to offer the adequate ‘protection’ referred to.
The economic migrant classification has been widely misused to discriminate against asylum-seekers based on nationality, with states able to distort asylum procedures to suit political inclinations and national approaches to securing borders. 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-cowntent/uploads/2015/12/Fortress-Europe-dec-2015-final.pdf )) Another example of prevalent use of the “economic migrant” classification can be seen in the German response to Afghan asylum-seekers. 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 )) The German treatment of Afghan asylum-seekers – and the manipulation of the economic migrant classification to allow repatriation of Afghans to their internationally recognised high-risk country of origin – not only exemplifies the flaws of the current refugee regime, but also seems to violate its core purpose of non-refoulement.
Further, host states must be made to consider not only the cause of displacement, but also the consequences of displacement from the country of origin. This is particularly relevant where persons have been found not to satisfy the requirements for refugee status, yet have suffered significant financial, physical and emotional costs as a result of displacement. This issue requires real discussion on the duties of non-refoulement, which is jus cogens only by virtue of satisfying the insufficient technicalities of the refugee regime and not in any consideration of the real harm caused to and suffered by displaced persons as a result of modern practices (as seen by rampant misuse of “economic migrant” classification to deport persons into high risk areas). Where non-refoulement is understood as a negative duty on host states not to return persons to a country where they are vulnerable to factors outlined in the Convention, the economic migrant classification has allowed persons to be repatriated into situations even worse than pre-displacement. For instance, after several months or years of displacement, displaced persons may have spent all life savings and have lost whatever assets remained in their country of origin by their displacement, and be negatively received by compatriots. It is clear here that some positive duty must exist for host states to ensure the costs incurred by displaced persons are redressed if they are to be repatriated without violation of non-refoulement. Where “backroom” government repatriation deals and aid packages may appear to satisfy such a positive duty, the essence of non-refoulement requires protection at an individual, case-by-case level not waivered by ambiguously valued government deals and aid packages.
While further discussions on ensuring redress of displaced persons on repatriation is outside the scope of this paper, the misuse of the economic migrant classification and consequent harm caused to displaced persons can be addressed by consolidating the content of the refugee regime and removing the flawed restrictions and inconsistencies of the Convention refugee definition.
(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 Displacement, existing treaty and customary elements of international law can be codified to better clarify duties owed to refugees and removing any inconsistencies – without developing an entirely new convention.((http://www.unhcr.org/uk/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html )) Refugee law could be codified and expressed as a modification of the Convention definition to reflect modern obligations and expectations.
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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,
(c) and:
(i) is unable or unwilling, owing to causes outlined in (b), to avail themselves of the protection of the country of their nationality.
Or,
(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.
Or,
(ii) if the denial of refugee status and subsequent deportation, detainment, detention or criminalisation would increase the threat to life or freedom, or prolong the uncertainty of outcome, the cause of displacement is to be accepted as legitimate.”
The definition uses the Convention definition as a foundation, while incorporating more recent regional treaties, human rights conventions, and acknowledging harmful practices in the current application of the “refugee” definition – removing any impact from politicisation and discrimination in aslyum procedures, directly clarifying the principle of non-refoulement and undue restriction of freedoms for displaced persons [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 Refugees.((Available at: https://www.oas.org/dil/1984_Cartagena_Declaration_on_Refugees.pdf ))
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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.
