SELF ASSESSMENT EXERCISE 1
1. ‘Although one has to distinguish between refugees, asylum seekers and economic migrants, there is no clear boundary among the terms.’ Discuss.
2. What does Tuitt’s analysis of the refugee suggest about the nature of refugee law?
Summary
This section has dealt with the historical and conceptual structure of the idea of the refugee. We have reviewed the work of Arendt, Agamben and Tuitt who suggest, in different ways, that the refugee is a 'figure' of our times. We have also looked at the historical development of refugee law which took place immediately after the Second World War in Europe. Although the United Nations Relief and Rehabilitation Agency (UNRRA) and the International Refugee Organization (IRO) provided assistance for displaced peoples, a coherent body of refugee law was only achieved with the Convention relating to the Status of Refugees in 1951. Although the Convention could be seen as a compromise, because states were not keen to assume broad responsibilities for refugees, it does contain some important provisions. The Convention provides a general definition of the refugee and a basic set of rights. The Convention states that a nation must not expel or return a refugee (refoulement). Further advances mean that there are now a number of measures that relate to the international protection of refugees rights.
3.3 The Convention Relating to the Status of Refugees and
The above enumeration is given in order to provide a link with the past and to ensure the continuity of international protection of refugees who became the concern of the international community at various earlier periods these instruments have by now lost much of their significance, and a discussion of them here would be of little practical value.
However, a person who has been considered a refugee under the terms of any of these instruments is automatically a refugee under the 1951 Convention.
This paragraph thus tells us how the 1951 Convention is coherent with earlier Conventions.
Paragraph (2) adds significantly to this definition:
As a result of events occurring before I January 1951 and 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.
There are a number of elements to this definition. First, it is necessary to explain the importance of the date 1 January 1951. As explained above, the date is significant because it shows that the state parties who were involved in the early stages of making the Convention law were keen to limit their liability to people who had been made refugees during the Second World War, and so include only events that had already happened. States did not want the Convention to create an open-ended responsibility for refugees that would be a burden on national governments. However, as the UNHCR Handbook explains, with the signing of the 1967 Convention, this definition has lost most of its significance. It is relevant mainly to those states that have signed the Convention, but not the Protocol.
The core sense of the definition is a ‘well-founded fear of persecution’;
the reasons for the persecution relate to a broad list of factors that include ethnicity, but also cultural and political concerns. Owing to this fear of persecution, the person claiming refugee status is either ‘outside the country of his nationality’ and unable or unwilling to return or, in cases where the individual has no nationality, is unable or unwilling to return to the place of ‘former habitual residence’. A refugee is thus a
‘stateless’ person; someone who cannot call on a state to protect him or her.
There are a number of grounds under which this could happen, for instance if he or she ‘voluntarily re-avails himself of the protection of the country of his nationality’ or the reasons for the fear of prosecution no longer exist. The commission of certain crimes can also deprive an individual of refugee status. Included in this list would be war crimes and crimes against humanity; ‘non-political’ crimes committed in the country from which s/he has fled, or if the person has been ‘guilty of acts contrary to the purposes and principles of the United Nations’.
Before we move on, we need to examine in detail the meaning of these keywords in the Convention. Later in this unit, when we look at the response of the English Courts to the Convention, we will see that their meaning is far from straightforward.
The phrase ‘well-founded fear of being persecuted’ replaces the earlier method of defining refugees by categories (i.e. persons of a certain origin not enjoying the protection of their country) by the general concept of 'fear' for a relevant motive. Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements .rather than a judgment on the situation prevailing in his country of origin.
However, to the element of fear -a state of mind and a subjective condition - .is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation.
There are thus both subjective and objective elements to the test for refugee status. The Handbook explains that the general test for refugee status replaced the previous approach which had been to determine refugee status by reference to categories of person. The Convention test has both a subjective and an objective element: the decision-maker must ask first of all whether or not a person applying for refugee status is in fear. This is a subjective test, and relates to the applicant's own understanding of the threat that he or she faces. However, this must be 'well-founded’; and this requires an objective element. There must be objective reasons for the individual’s fear. Note also that the UNHCR Handbook stresses that, for the purposes of the Convention, being the victim of a natural disaster does not, in itself, qualify a person for refugee status.
As far as the subjective element is concerned, the Handbook provides further usefu1 clarification of the way in which it is to be understood:
Due to the importance that the definition attaches to the subjective element, an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record. It will be necessary to take into account the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group, his own interpretation of his situation, and his personal experiences -in other words, everything that may serve to indicate that the predominant motive for his application is fear. Fear must be reasonable. Exaggerated fear, however, may be well- founded if, in all the circumstances of the case, such a state of mind can be regarded as justified.
The subjective element demands that the decision-maker takes into account the credibility of the applicant; especially when the facts as presented are not themselves clear. The decision-maker must assess the subjective fear of the applicant as an individual, taking into account his or her beliefs, status and ethnicity; and give due weight to the individual's own appreciation of the facts of the situation. Determining the objective element is equally as difficult. Although the decision-maker is not called upon to ‘pass judgment on conditions in the applicant's country of origin’, it is impossible to consider the applicant's statements in the ‘abstract’ and the decision must be related to 'the context of the...background situation'. Thus, whilst a knowledge of the situation in the country of the applicant is not a primary consideration, it is ‘an important element in assessing the applicant’s credibility’. The applicant’s own experiences are important in assessing these issues, but so too are the experiences of his family, friends, or the ethnic or religious group from which he originates. Also important are the laws of the relevant country, and the way in which they are applied.
In this context it is also important to note that, although the Convention envisages that refugee status is normally determined on an individual basis, there is the possibility of cases where whole groups of people have been displaced. In such circumstances it is not possible to make individual determination of refugee status for each person in the group.
In this situation it is Possible to make a ‘group determination’ of refugee status: ‘each member of the group is regarded prima fade (i.e. in the absence of evidence to the contrary) as a refugee’.
An equally important issue is the meaning of the word persecution. At present there is no single accepted definition of this word.
Interpretations are thus thrown back to the Convention itself. From Article 33, it is possible to ‘infer’ that persecution means ‘a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group... Other serious' violations of
Although this appears a reasonably wide definition, it begs the question of whether other acts could amount to persecution. This would depend on ‘circumstances of each case’. It would be necessary to take into account the subjective and objective elements of the test as analysed above.
Another issue that should be considered here is the problematic distinction between economic migrants and refugees. The UNHCR Handbook defines a migrant as: ‘…. a person who...voluntarily leaves his country in order to take up residence elsewhere’. In this sense, an economic migrant is not a refugee; however, in certain circumstances, an economic migrant may be considered a refugee. For instance, punitive economic measures (for example, prohibiting people from taking certain jobs/ raising levels of taxation that apply to certain groups of people) may lead to a person leaving a country. This begs the question: when is an economic migrant a refugee?
...Objections to general economic measures are not by themselves good reasons for claiming refugee status. On the other hand, what appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequence!; rather than his objections to the economic measures themselves.
An economic migrant may be a refugee, depending on the facts of the case. Obviously, the other elements of the definition above would have to apply.
SELF ASSESSMENT EXERCISE 2
What is the nature of the test to determine refugee status?