5 MARCH 2021
Around the world, 148 countries have signed up to the United Nations Refugee Convention of 1951, as amended in 1967.[1] This does not include a majority of Arab countries, who do accept refugees but in a haphazard manner.The origins of the Convention are to be found in the Second World War, and the founding of the United Nations in 1945 by the victors of that war, the US, the UK, Russia, China, and France. There were one million refugees of European origin in the war’s aftermath, and the UN recognised that their reception and resettlement required a sharing of the burden according to a mutually agreed set of guaranteed rights for the refugees.
That agreement, which was expanded in 1967 to include all refugees and not just those from post-war Europe, has largely held, despite the cracks appearing in the authority of the UN in recent years. It is not always, however, respected in practice.
Definition
The guiding principle of the Convention is that people outside their own country of origin who have lost the protection of that country, must be given instead the protection of their host country. In order to distinguish ‘refugees’ from ‘economic migrants’ ( a distinction built in from the beginning) a refugee is defined as someone who:
‘owing to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
(Convention article 1A.)
The ‘reasons’ have been subject to much international and domestic law, which has on the whole succeeded in expanding the categories: for example ‘women’ and ‘gay people’ have recently been accepted as being ‘members of a particular group’ in certain countries that have grossly discriminatory laws against women, or who actively persecute gay people.
A related area of contention has been persecution by ‘non-state agents’ such as militias, families or religious extremists. To succeed, the asylum seeker must generally prove that there is no state policy to protect an individual from such agents (and not just that the state does not offer such protection in practice). So for example it is unlikely that lawless gangs will be accepted as agents of effective persecution; and if there are refuges for victims of sex crimes or domestic abuse, however inadequate, it will be accepted that there is adequate state protection.
‘Well founded fear’: there must be some objective facts to ground the fear of persecution, although it is not necessary to prove past persecution. It may sometimes be enough to show that the group or category the person belongs to is being persecuted, although generally there has to be a fear for that particular individual.
‘Persecution’: serious harm, ie unlawful imprisonment, torture or other inhumane treatment, not just discrimination in education or employment.[2]
‘Outside the country of nationality’: has often included a foreign Embassy, but the UK has abolished the right of asylum in a UK Embassy abroad, and more recently the right to claim asylum in UK territorial waters.
Internal flight alternative
Although not part of the Convention definition of a refugee, some signatory countries (including the UK) have increasingly inserted an additional test for refugee status: that no part of the country of origin is safe, and the refugee cannot reasonably avail of ‘internal relocation’ to another safer part of the country. The UN Refugee Agency UNHCR, as the guardian though not enforcer of the Convention, is critical of this practice, arguing that the Convention does not impose a requirement that refugees try to flee internally before leaving the country of origin.[3]
The test is applied to victims of persecution by non-state actors (ie militias or families) and is included in the UK Immigration Rules:[4]
339O (i) The Secretary of State will not make:
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a grant of refugee status if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country;
Loss of refugee status
Article 1C of the Refugee Convention says the following:
This Convention shall cease to apply to any person falling under the terms of section A if:
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He has voluntarily re-availed himself of the protection of the country of his nationality;
Having lost his nationality, he has voluntarily reacquired it;
He has acquired a new nationality, and enjoys the protection of the country of his new nationality;
He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution;
He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Put more simply, refugees will lose their status if, having surrendered their old passport, they obtain a new passport from the home country.
Or they otherwise re-obtain their old nationality.
Or they obtain a new nationality, in a safe country.
Or they go home willingly.
Or they are no longer unsafe in their own country—but there has to be a permanent change in circumstances, not just promises of safety from the existing regime.
Exemptions
Article 1F of the Refugee Convention says the following:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
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he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
he has been guilty of acts contrary to the purposes and principles of the United Nations.
This clause, which refuses refugee status despite the well-founded fear, mainly applies to war criminals, but can also exclude those who have committed serious non-political crimes.
Obligations of the host country
Beyond general provisions of non-discrimination and freedom of religion, as well as the principle of ‘non-refoulement’ (i.e. forbidding expulsion or return to the country of origin) the original Convention did not spell out a set of obligations to the asylum seeker or the refugee, but left those to the individual host countries. The 1967 Protocol made a series of recommendations which were generally incorporated into the domestic law of contracting countries.
For example, the European Union Qualifications Directive of 2011 [5] mandated all members states:
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To provide a fair process for seeking asylum, with access to legal assistance;
To give special consideration in the process to vulnerable persons, especially unaccompanied minors;
Not to send the asylum seeker back to the country of origin, or to another unsafe country, until the asylum claim is processed with a negative result;
To treat the refugee, without discrimination, like any third country national of the host country, and additionally with a guaranteed right to healthcare, education and employment;
Not to prosecute the refugee for illegal entry to the host country;
To grant the right of family reunion once refugee status has been granted, with the ‘family’ interpreted as (one) spouse and the minor children and other close relatives which formed part of the household in the country of origin;
To grant travel documents to replace the passport of the country of origin.
Subsidiary protection
In addition to refugee status, the EU Directive created a subsidiary protected status (Article 15) to be granted when an individual (regardless of Convention ‘reasons’) faces serious harm.
Serious harm consists of:
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the death penalty or execution; or
torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
So an individual threatened by widespread and indiscriminate violence in an area of conflict may benefit from this protection. It will cease when the situation improves, but the change of circumstances has to be ‘of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious harm’. In general, UNHCR guidance is followed when considering whether conditions are safe for return.
The UK will no longer be subject to EU rules after 31 December, but much of the above is incorporated into domestic law.
The Dublin Convention
The EU has been responsible—along with its clarification of the rights of refugees once arrived in member states—for restricting the rights of refugees along the way.
It has made clear that there is no choice of country for asylum; the Dublin Convention and its subsequent Regulations is a treaty determining which member state in Europe is responsible for determining individual asylum claims.[6] Its twin principles are:
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The country of first entry is the state responsible for the asylum claim;
Family unity is respected.
That means that the first EU country that asylum seekers enter (and identify as an asylum seeker) is the country they are stuck in, unless they can show that their close family members are elsewhere in Europe, in which case they can apply for a transfer to that state. (In practice this process is long and cumbersome.) Otherwise if they later turn up elsewhere in the EU they can then be returned to the first country of arrival.
Dublin and Brexit
The effect of the final exit of the UK from the EU, on 31st December 2020, was to nullify the Dublin Regulations in the UK. The Dublin Regulations created a process by which EU member states can return asylum seekers to the first EU country they passed through, provided their fingerprints were taken and recorded on EURODAC, the Europe-wide database. Outside the Dublin Convention there is no access to EURODAC, nor any mechanism for enforcing return to the EU.
So what was the UK to do with asylum seekers arriving on its shores from Calais? Firstly, there was a determined effort to return as many asylum seekers as possible to Europe before the Brexit deadline. Secondly, the Government sought bilateral agreements with individual countries in the EU, with little success. Thirdly a new Immigration Rule would make an asylum claim ‘inadmissible’ if the person had come through a ‘safe third country’ on their journey. That means the UK could refuse to accept a claim if it could be discovered what countries (not necessarily in Europe) the asylum seeker had travelled through, and if one of those countries would accept the person back, within six months of the ‘inadmissible’ decision.[7]
On its face, this rule is unenforceable, at least at present while no agreements for return exist, but it will delay asylum claims and most likely lead to months of immigration detention.
Notes
1. Convention relating to the Status of Refugees 1951, and 1967 Protocol relating to the Status of Refugees
https://legal.un.org/avl/ha/prsr/prsr.html
2. In a case brought by a young Syrian who had fled compulsory military service, and whom German authorities had denied full asylum status, the European Court of Justice found that fleeing compulsory military service in the context of a regime and a war such as that in Syria could be seen as grounds for asylum due to fear of political persecution.
https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-11/cp200142en.pdf
3. Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, UNHCR
https://www.unhcr.org/publications/legal/3f28d5cd4/guidelines-international-protection-4-internal-flight-reloc
4. Immigration Rules part 11: asylum, UK Home Office
https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-11-asylum
5. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011L0095
6. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF
7. Statement of Changes in Immigration Rules, 10 December 2020
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/943127/CCS207_CCS1220673408-001_Statement_of_changes_in_Immigration_Rules_HC_1043__Web_accessible_.pdf
First published online 5 March 2021.
Image: Signing the Refugee Convention in Geneva, 28 July 1951. Painting based on a United Nations archive photo.
Illustration by Kellie Strom.
Image: Signing the Refugee Convention in Geneva, 28 July 1951. Painting based on a United Nations archive photo.
Illustration by Kellie Strom.