Introduction

Author:

The word ‘refugee’ is both evocative and contested; it means different things to different people. To some, a refugee is a vulnerable person who needs help. To others, a refugee is a threatening figure who belongs in a faraway land. In a newspaper column or news report, a refugee may be a person fleeing from a natural disaster or a repressive regime. Images of refugees can be visceral and are regularly used to evoke sympathy or provoke unease, to raise funds or to secure political advantage. These images often tell us more about the opinion or purpose of the person using them and the society and social order in which they are deployed than the nature, condition or legal status of the majority of the world’s refugees. The publicity materials of international agencies seeking to promote their work or raise funds often feature small groups of women and children from the Global South physically situated in the Global South, often accompanied by a logo-emblazoned aid worker from the Global North. Newspaper articles and political parties in advanced economies often choose to represent stories about refugees with images of groups of men travelling or somehow seeking entry to a wealthy country. Neither is representative, given that women are estimated to constitute just under half and children four out of ten of the refugee population, and the vast majority of the world’s refugees remain close to their country of origin in designated or informal refugee camps. For lawyers, asylum assessors and judges, the meaning of the word ‘refugee’ at first appears straightforward.

The word ‘refugee’ is both evocative and contested; it means different things to different people. To some, a refugee is a vulnerable person who needs help. To others, a refugee is a threatening figure who belongs in a faraway land. In a newspaper column or news report, a refugee may be a person fleeing from a natural disaster or a repressive regime. Images of refugees can be visceral and are regularly used to evoke sympathy or provoke unease, to raise funds or to secure political advantage. These images often tell us more about the opinion or purpose of the person using them and the society and social order in which they are deployed than the nature, condition or legal status of the majority of the world’s refugees. The publicity materials of international agencies seeking to promote their work or raise funds are a case in point. They depict small groups of women and children from the Global South physically situated in the Global South, often accompanied by a logo-emblazoned aid worker from the Global North. Newspaper articles and political parties in advanced economies routinely choose to represent stories about refugees with images of groups of men travelling or somehow seeking entry to a wealthy country. Neither is representative, given that women are estimated to constitute just under half and children four out of ten of the refugee population. The vast majority of the world’s refugees remain close to their country of origin in designated or informal refugee camps.1

For lawyers, asylum assessors and judges, the meaning of the word ‘refugee’ at first appears straightforward. The main legal reference point is the UN Convention relating to the Status of Refugees of 1951; Article 1A of that convention defines the meaning of the word ‘refugee’ and its second paragraph (referred to as ‘Article 1A(2)’) states that the term refugee shall apply to any 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.2

This definition has itself changed over time. Originally, Article 1A(2) began with the words ‘As a result of events occurring before 1 January 1951 and …’. Article 1B included an option for a state party to amend that wording to ‘As a result of events occurring in Europe before 1 January 1951 and …’. Most state parties to the 1951 Refugee Convention have, by ratifying the Protocol Relating to the Status of Refugees of 1967 without reservation, agreed to remove the temporal and geographical limitations to the refugee definition.3 The protocol requires state parties ‘to apply articles 2 to 34 inclusive of the [Refugee] Convention to refugees as hereinafter defined’.4 These two international legal instruments read together are referred to throughout this book as ‘the Refugee Convention’. Today there are a handful of states which have ratified the 1951 convention but not the 1967 protocol and some – including the United States – which have ratified the protocol but not the convention. Meanwhile, Turkey, which in 2021 hosted some four million refugees, has ratified both the convention and protocol but maintains the original geographical limitation to ‘events in Europe’. The effect is that Turkey does not consider refugees from outside Europe as refugees as defined in the Refugee Convention. Turkey is therefore not obliged by the refugee law treaties to offer non-European refugees the rights discussed in Chapter 7 of this book.

While the definition at Article 1A(2) of the Refugee Convention, as amended by the 1967 protocol, can and should be considered the principal definition of a refugee for the purposes of international law, it is not the only available definition in public discourse, scholarship or even in law.

As hundreds of thousands of Syrians fled civil war in their country and travelled to Europe in 2015, a war of words broke out over whether they should be labelled ‘refugees’ or ‘migrants’. Those in favour of offering them sanctuary argued they should be called refugees. Those advocating for their exclusion preferred to call them migrants. The sharp distinction both supporters and opponents of refugee rights often draw between these two words is referred to as the refugee/migrant binary. Whether or not a person formally satisfies the definition of a refugee in the Refugee Convention may well be arbitrary, though. In international law, a refugee must be outside their country of origin. A person whose home is destroyed and moves within the same country is labelled an ‘internally displaced person’ or ‘IDP’. A person fleeing the same disaster and crossing an international border may be a refugee. A person may not fear ‘being persecuted’ as such and therefore may not be a refugee but may well still fear for their life for other reasons. The International Organization for Migration (IOM), noting that there is no universally agreed or international law definition of ‘migrant’, suggests a broad definition: ‘a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons’. Refugees can therefore be considered a subset of the wider class of international migrants. They are sometimes grouped together with others as ‘forced migrants’, people who in the short term at least would have remained in their country of origin but for some external cause, be it persecution, war, famine, natural disaster or something else. The term ‘survival migration’ has also been coined to offer a more inclusive conception of those forced to leave their country because of ‘an existential threat for which they have no access to a domestic remedy or resolution’.5 Ultimately, these are modified versions of the refugee/migrant binary and all have been dismissed as ‘categorical fetishism’.6 Any attempt to draw sharp distinctions between individuals based on their motivation ultimately founders on the complexities of mixed motives and marginal cases.

Nevertheless, a great deal rests on how the word ‘refugee’ is understood and defined. A ‘refugee’ is widely considered deserving of admission to another country but it is almost universally considered legitimate to exclude a ‘migrant’. Advocates on behalf of refugees worry that confusing refugees with migrants undermines the already precarious rights of refugees.7 As Hamlin writes, the binary distinction is considered by many to reassure the public in the Global North that they can support admitting and protecting refugees without having to support open borders or massively increased immigration.8 Hamlin and others are critical of this position, though. It can be argued that the distinction between refugees and migrants is an expedient but false legal fiction; it excludes from protection highly vulnerable migrants who do not satisfy the strictures of refugee status and it serves to reinforce harsh border control measures which harm all border crossers, including those defined as refugees.

Ultimately, this book addresses refugee law and with some wider laws of international asylum for those who do cross international borders. The main focus here is therefore on the existing refugee definition and the rights of refugees, not on whether that definition could or should be modified or even abandoned. We will, though, return to the issue of reform in the Conclusion.

Evolution of the refugee definition

The idea of international asylum has long legal precedents. The first known international treaty, the Kadesh Treaty, concluded between Ramses II and Hatusil III, King of the Hittites in the 13th century BC, included protection clauses.9 Greek and Roman law and custom recognized the right of asylum as a form of sanctuary from unjust persecution and protection against extradition.10 The theoretical founders of modern international law, figures such as Francisco de Vitoria (1480–1546), Francisco Suárez (1548–1617), Hugo Grotius (1583–1645), Samuel Pufendorf (1632–94), Christian Wolff (1679–1754) and Emerich de Vattel (1717–17), discuss the concept of asylum. The word ‘refugee’ first came into usage in Europe in the 17th century to describe the Huguenot Protestants who fled religious persecution in France and settled in England. Being a refugee was not a formal status; it did not need to be. In the United Kingdom, the power of the Crown to expel a person was ancient, but it was seldom used: prior to the Aliens Act 1905, there were virtually no laws governing admission to or residence in England or elsewhere at that time, so there were no legal barriers to people coming and going as they pleased.11 When that legislation was adopted, it allowed for a right of admission for a migrant fleeing ‘prosecution or punishment on religious or political grounds or for an offence of a political character, or persecution, involving danger of imprisonment or danger to life or limb, on account of religions belief’.12 The word ‘refugee’ had by then become part of common usage, denoting a person who had fled religious or political persecution in their own country and who it was accepted should not be sent back to that country. Formal borders, admission laws and eventually passports became more entrenched in the 19th and early 20th centuries, a trend accelerated by the First World War. At the same time, persecution and targeting of minorities and political opponents in Russia and eastern Europe led to increasing movement of people across those borders. As Hannah Arendt observed, forced migrations of people were hardly a new phenomenon in human history, but the impossibility of finding a new home was unprecedented: ‘Suddenly, there was no place on earth where migrants could go without the severest restrictions, no country where they would be assimilated, no territory where they could found a new community of their own.’13

The sometimes desperate plight of considerable numbers of Russians who had fled their country in the years following the revolution of 1917 attracted international attention. A more formal footing for the assistance of refugees was required and, in 1921, a League of Nations High Commissioner for Refugees was appointed. This was the Norwegian Fridtjof Nansen, who by lending his name to the ‘Nansen passport’ was to become eponymous with refugee protection in the interwar years. The term ‘refugee’ emerged to describe a special category of migrant in Europe. At this stage, remedies for the situation experienced by refugees focused on filling the vacuum left by effective loss of diplomatic protection to a person outside their own country and repairing lost personal legal rights by providing identity and travel documents, and personal status for the purposes of marriage, divorce and taxation.14 That said, the principle of no involuntary return to their country of origin, now referred to as non-refoulement, was from the outset considered an essential protection.15

The first formal international definition of a refugee was adopted by the Council of the League of Nations in 1926. This adopted what might be described as a group-status approach, applying specifically and exclusively to those of Russian or Armenian national or ethnic origin who were outside their country of nationality, did not ‘enjoy the protection’ of their own government and who had not acquired any other nationality. Some had fled their countries for political reasons, some had been driven from their homes, many of the Russians had been stripped of their citizenship and all were unable to approach their own governments for assistance while abroad. The main purpose of the agreement, which was voluntary and initially signed by only 22 states, was to provide those affected with an identity certificate in lieu of a passport to enable their onward travel. The identity certificate scheme was extended in 1928 to other, smaller groups of exiles, again explicitly identified by reference to their national origins. These arrangements were then formalized in the Convention Relating to the International Status of Refugees in 1933, described by Professor Guy Goodwin-Gill, one of the leading scholars of refugee law, as ‘an important marker on the road to a rights-based system of protection’.16 In practice, the success of the new regime was limited. Only eight states ratified the treaty, several with major reservations, and by the time it came into force in 1936, it had already been overtaken by events: the rise of Nazism and election of Adolf Hitler in Germany. Nonetheless, the 1933 convention was to form the model for the post-war framework of refugee rights.17

The group-status approach was extended specifically to German refugees by an intergovernmental conference in 1936. When this arrangement was formalized in the Convention Concerning the Status of Refugees Coming from Germany of 1938, the definition was modified to require a more careful individual examination of personal circumstances.18 To qualify for a certificate of identity a person would have to prove that ‘in law or in fact, they do not enjoy the protection of the Government of the Reich’ and that they had not left Germany ‘for reasons purely of purely personal convenience’. A proposal to restrict status only to those who had fled on political, religious or racial grounds, which would have required much closer individual consideration of a person’s situation, was rejected. The group-status approach was then applied also to Czechs and Slovaks and Austrians fleeing German incorporation in 1938. The Intergovernmental Committee on Refugees, formed at the Evian Conference of 1938, initially continued to focus on national groups but dispensed with the language of national protection, adopting instead a definition requiring that a refugee had emigrated ‘on account of their political opinions, religious beliefs and racial origin’. This definition was in 1943 amended to abandon references to particular national groups and instead refer to any person who had been forced to leave their country of residence ‘because of the danger to their lives or liberties on account of their race, religion or political beliefs’.

Tens of millions of people were displaced within Europe during the Second World War.19 The initial response was led by the United Nations Relief and Rehabilitation Agency (UNRRA), created in 1943 to provide immediate humanitarian relief to civilian populations once the anti-Axis counteroffensive began. Three-quarters of all displaced people in Europe were rapidly repatriated, irrespective of their individual wishes. No specific provision was made for refugees and some of those who returned to Soviet countries found themselves interned in Stalin’s labour camps.20 Increasing awareness among Western powers of the reluctance of some to return and the fate of those who did slowed the pace of transfer after 1945. Funding for UNRRA was eventually terminated by the main donor, the United States. Early in 1946, the United Nations General Assembly passed a resolution recognizing that some displaced persons were refugees who should not be forced to return to their country of origin.21 A new body which focused on resettlement rather than repatriation was created in late 1946, the International Refugee Organization (IRO).22 This was another powerful and well-funded institution. During the four years of its existence, the IRO assisted more than 1.6 million people, mainly by resettling them to the United States, Australia, Israel, Canada, the United Kingdom, third countries in Europe and South America.23 Its constitution offered assistance to six protected groups, including those who had ‘valid objections’ to repatriation based on ‘persecution, or fear, based on reasonable grounds, of persecution because of race, religion, nationality or political opinions’ or objections ‘of a political nature, judged by the organization to be valid’.24 There had been no cessation or exclusion clauses included in earlier refugee conventions addressed to national groups of refugees, but the statute of the IRO explicitly excluded ‘war criminals, quislings and traitors’. These exclusions reflected the more individual approach to refugee status, moral anxiety that those responsible for perpetrating the horrors committed by Nazi and Axis regimes be held to proper account, and the increased politicization of refugees, repatriation and resettlement between Western and Soviet governments.

Despite the massive scale of the repatriation and then resettlement programmes, by the time the IRO ceased operating in 1952, there were still some 400,000 refugees remaining in camps in Europe, mainly sick, elderly and disabled people and others unable to undertake physical labour. In turn, the IRO was replaced by a much smaller organization with a tiny budget: the UNHCR.

United Nations High Commissioner for Refugees

Two mechanisms were envisaged to protect refugees: an internationally agreed legal framework in the form of a convention and an agency of the United Nations. The negotiations and drafting for the creation of both initially proceeded in parallel but the work on the agency was completed first. A resolution passed by the General Assembly of the United Nations in 1950 gave birth to the UNHCR, with effect from 1 January 1951.25 UNHCR is both an individual, in that there is a single High Commissioner, and an office or organization. Taking over from the IRO, the new High Commissioner was charged with promoting the protection, voluntary repatriation or assimilation of remaining post-war refugees and ‘such additional activities, including repatriation and resettlement, as the General Assembly may determine’.26 The founding statute adopted the various refugee definitions of the interwar years and added a new definition which was similar but not identical to that later used in the Refugee Convention.27 The UNHCR definition did not include an option to restrict recognition to European refugees only, did not include membership of a particular social group as a ground for refugee status, excluded those who refused to return for reasons of personal convenience or economic reasons and included past as well as present fear of persecution. The UNHCR definition was though, like the Refugee Convention, essentially backwards-looking, applying to existing refugees only or those who became refugees ‘as a result of events occurring before 1 January 1951’. Despite its initially limited remit and funding and the requirement that its work ‘shall be of an entirely non-political character’, UNHCR established a leading role in responding to post-war refugee crises.28 From the start, the UNHCR statute made clear that the organization could ‘engage in such additional activities, including repatriation and resettlement, as the General Assembly may determine, within the limits of the resources placed at his disposal’.29 Appointed lead agency by the United Nations for responding to the Hungarian refugee crisis of 1956, UNHCR displayed ‘considerable innovation’ in maintaining that the crisis arose from events occurring before 1951.30 A United Nations General Assembly resolution in 1959 authorized the High Commissioner to use his ‘good offices’ to provide future assistance to refugees who fell outside the formal definition.31 Responding increasingly to events outside Europe, UNHCR’s activities, staff and budget expanded exponentially during the 1970s under the leadership of High Commissioner Sadruddin Aga Khan.

Today, UNHCR performs multiple functions, from direct provision of aid to millions of refugees in camps around the world to carrying out refugee status determination in many countries, running refugee resettlement schemes, publishing legal guidance and intervening in court proceedings. As Gil Loescher wrote in 2001 in his landmark study of UNHCR, ‘committed staff members are willing to place their lives in danger to defend the proposition that persecuted individuals need protection’.32 UNHCR’s mandate has been extended by the United Nations General Assembly beyond refugees to asylum seekers, stateless persons and returnees. In other situations, UNHCR relies on its ‘good offices’ function to render assistance to those forced from their homes but remaining within their country of origin or where forced from their homes by natural disaster. Neither of these groups would meet the criteria defining a refugee at Article 1A(2) of the Refugee Convention. Where UNHCR offers protection to an individual, state parties to the Refugee Convention are therefore not obliged to do likewise.33

UNHCR is no longer alone on the international stage. Alexander Betts argues that a ‘refugee regime complex’ has emerged in recent years, consisting of overlapping and nested legal frameworks and organizations.34 UNHCR competes for both function and funding, for example with the IOM, a body originally created and operating outside the UN system but later absorbed by the UN in 2018. This institutional proliferation has enabled some states, particularly in the Global North, to bypass the Refugee Convention and UNHCR without necessarily violating their legal obligations. Having led the development of the UN Global Compact on Refugees between 2016 and 2018, UNHCR appeared at the time of writing to have consolidated its position at the forefront of international refugee protection and policy.35 Given the investment of credibility in the project discussed in more detail later, this position may prove to be vulnerable should the Compact prove ineffective. UNHCR has also been subject to criticism by refugee rights advocates and civil society. Management and oversight of the organization is unwieldy because of the growth in membership of its Executive Committee (‘ExCom’).36 UNHCR has been slow to censure states in the Global North for shortcomings in their protection of refugee rights because of its institutional dependence, written into its founding statute, on voluntary contributions from wealthy countries.37 Freedom to allocate resources is constrained by the practice of these donor states to ‘earmark’ funds for specific purposes. Similarly, UNHCR’s dependence on the voluntary cooperation of states in the Global South in whose territories the organization must operate has led to criticism for complicity with breaches of refugee rights, for example, by encampment of refugees.38 Finally, it has been observed that UNHCR’s supervisory role is called into question when it assumes responsibilities that are properly those of states and therefore require supervision themselves.39

The Refugee Convention

The drafting process for a new convention on refugees to replace those of the interwar years was prolonged. It began in earnest with the creation at the UN of the Ad Hoc Committee on Statelessness and Related Problems in 1949. This body was tasked with considering ‘the desirability of preparing a revised and consolidated convention relating to the international status of refugees and stateless persons’ and, if considered desirable, drafting a text.40 The UN Secretary-General prepared a memorandum prior to the first meeting of the committee urging that a universal refugee definition be adopted rather than one applicable only to defined national groups.41 This proved to be a matter of considerable controversy, with the United States, in particular, opposing a universal definition but Belgium, Canada, Egypt, Lebanon, Pakistan, Turkey, the United Kingdom and others advocating in favour.42 Most of the drafting work took place in 1950 and 1951 in the renamed Ad Hoc Committee on Refugees and Stateless Persons, including the drafting of the core of the definition later to be enshrined in the new convention. Adjustments to the text were made by the later Conference of Plenipotentiaries, including the addition of the ‘membership of a particular social group’ ground for being persecuted. As a compromise between the defined group and universalist positions, the final text included a temporal restriction to events occurring before 1 January 1951 and an optional geographical restriction to events in Europe. The conference formally adopted the new Convention Relating to the Status of Refugees on 28 July 1951 and it came into force on 1 January 1954. As discussed earlier, the temporal and geographical restrictions were removed by a protocol in 1967. At the time of writing, there were 149 countries around the world which were state signatories to one or both these legal instruments.

Entitlement to refugee status

The words used to define the meaning of the word ‘refugee’ at Article 1A(2) of the 1951 UN Convention Relating to the Status of Refugees (and set out earlier in this text) can for pedagogical purposes be broken down and arranged into its constituent parts. As we will see though, some of these elements of the definition overlap and interact with one another:

  1. (i)well-founded fear;
  2. (ii)of treatment which amounts to being persecuted;
  3. (iii)for one of five reasons, often referred to collectively as the convention grounds or reasons: race, religion, nationality, membership of a particular social group or political opinion;
  4. (iv)where the person cannot be protected in their own country;
  5. (v)and the person is outside their country of origin.

These elements have been described as posing a ‘single composite question’ with it being said to be ‘a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations’.43 For example, as discussed in Chapter 5, whether or not some forms of harm amount to being persecuted may depend on the reason the harm is inflicted. This creates a problem for the author (and reader) of a book on refugee law, given that some sequencing is necessary for narrative exposition. Bundling together of issues also risks analytically defective decision-making. As Lord Justice Sedley has said, ‘experience shows that adjudicators and tribunals give better reasoned and more lucid decisions if they go step by step rather than follow a recital of the facts and arguments with a single laconic assessment which others then have to unpick, deducing or guessing at its elements rather than reading them off the page’.44 The different elements of the definition are therefore addressed in different chapters in this book but with cross-referencing between them.

The words of the refugee definition create several layers of limitation to entitlement to protection: it is not easy to qualify as a refugee and many people around the world in the direst humanitarian need are ineligible for refugee status. In the landmark Australian case of Applicant A, Dawson J emphasized the exclusionary nature of the refugee definition:

No matter how devastating may be the epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees.45

That said, the causes of flight are seldom straightforward and may well overlap, and there may be elements of discrimination or persecution in the way in which a state responds to a disaster. The most obvious and absolute limitation to refugee status is that a person can only become a refugee if outside their country of origin in a state of what is sometimes called ‘alienage’. At a stroke, this excludes the millions of internally displaced people who remain within their own country, no matter how perilous or parlous their situation and no matter how badly their own country has failed them. Even for those who have managed to flee abroad, protection only becomes available if the person has a ‘well-founded fear’, which imposes the probability or risk threshold discussed in Chapter 2. Essentially, a person who flees their country must show there was a good reason for doing so, or at least that there is a good reason for not now returning. The words ‘being persecuted’ are interpreted as requiring a high level of ill-treatment or harm, as discussed in Chapter 3. The threshold has been expressed as ‘serious harm’ and ‘a sustained and systemic denial of human rights’.46 Coupled with that, as discussed in Chapter 4, many jurisdictions require that a person demonstrate failure of state protection as an added component of ‘being persecuted’. Even if a person can show sufficient risk of sufficiently serious harm and insufficient state protection at home, the convention grounds discussed in detail in Chapter 5 restrict protection to those who can show their predicament is a consequence of certain protected characteristics. Not only does the definition limit the range of people entitled to protection, but the cessation clauses of the Refugee Convention state when a person ceases to be a refugee and the exclusion clauses prevent some individuals from claiming protection based on their conduct either in their own country or elsewhere; both are discussed in Chapter 6.

Rights of refugees

After defining who is and is not a refugee, the Refugee Convention goes on to require state parties to provide refugees with various rights. Addressed in Chapter 7, these include the most important right of all, the right of non-refoulement: the right not to be returned either directly or indirectly to a country in which the refugee might face persecution.47 The rights afforded by the Refugee Convention are intended to protect refugees from the physical harm from which they fled, at least until their claim to be a refugee has been determined, to ensure that they have a personal legal status in the absence of diplomatic or consular recognition by their home country, to ensure humane treatment of refugees in the country of refuge and, in the long term, to promote the integration and assimilation of the refugee into that country.

The rights of refugees are engaged at different stages of the refugee’s journey. Some, like the rights of non-refoulement and the right of non-discrimination, are relevant at all times that the refugee is within the jurisdiction of a state party. Other rights only become relevant at different stages of ‘attachment’ of the refugee to the country of refuge: physically within the territory whether lawfully or otherwise, lawfully present, lawfully staying, habitually resident or settled. The right to freedom of religion applies to refugees within the territory of a country, for example, but the right to wage-earning employment on the same terms as other foreign nationals is only engaged when a refugee is lawfully staying in the country concerned.

Nature of refugeehood

The Refugee Convention is notably silent as regards a procedure for recognition of refugees. This omission is simultaneously both a strength and a weakness for the regime of refugee protection. It is a strength because it follows that the definition of a refugee has an immediate and automatic effect. To put it another way, a grant or declaration of ‘refugee status’ is declaratory of a status that was in truth already held:

A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee.48

As Hathaway and Foster say, refugee status ‘inheres by virtue of facts rather than formalities’.49 The point has been accepted in multiple jurisdictions and multiple legal instruments.50 A person outside their country of origin may therefore, for example, become what is known as a sur place refugee due to a change in their individual circumstances or due to events in their country of origin.51 The Refugee Convention is also silent on where a refugee may or must claim asylum; there is no obligation to claim asylum in the first safe country a refugee may reach nor any prohibition on crossing multiple borders. Sadly, though, this is seldom how refugee receiving states in the Global North treat newly arrived putative refugees in practice. This is where the weaknesses of the protection regime become evident. The convention specifies no minimum standards for ensuring that the determination of refugee status is timely or fair, for example. It has been suggested that an omission to determine refugee status individually should be interpreted as prima facie acceptance that a person or group is or are entitled to the benefits of the Refugee Convention.52 But there is no legal requirement or legal presumption that this is so. There is no right of entry for the purpose of claiming asylum, as is discussed further in Chapter 7, only a right not to be exposed to persecution. Most fundamentally, the Refugee Convention is not backed by any effective enforcement mechanism whereby an ‘International Court of Refugees’ could find a signatory state in breach of the convention or forced it to comply with its provisions. Refugees rely on state parties adhering to their international law obligations in good faith. The only enforcement mechanism written into the convention is an inter-state one, and it has never been invoked.53 As discussed in Chapter 1, regional courts such as the Court of Justice of the European Union and the Inter-American Court of Human Rights have begun to address issues of asylum and non-refoulement, to some extent addressing this deficit. Nevertheless, the lacunae in the international regime have encouraged and enabled some state parties to effectively evade their obligations to refugees while maintaining the pretence of adherence to the terms of the Refugee Convention.

A ‘well-founded-fear of being persecuted’ for a convention reason is the key to refugee status but the convention does not require that this be the main or sole reason for a refugee leaving or refusing to return to their country of origin. If a person fulfils the criteria for refugee status, they are a refugee no matter what other motives they may have had for reaching their country of refuge. Thus a person who crosses a border purely for family, social or economic reasons may not be likely to meet the criteria for refugee status but nor are they excluded from it. The language used in the news and media to discuss the movement of people across borders labels some as ‘migrants’ and others as ‘refugees’ as if these were mutually exclusive categories. Under the terms of the Refugee Convention, it is possible for a refugee to move partly for economic or other reasons but still to qualify for refugee status. A Syrian stuck for months or years in a refugee camp in Jordan may decide to move to another country in the hope of a better future for themselves and their family; if that Syrian still fulfils the criteria in Article 1A(2) of the Refugee Convention in relation to their county of nationality, they are therefore under international law a refugee no matter where they move to or how many borders they cross.

Purpose of the Refugee Convention

Article 31 of the Vienna Convention on the Law of Treaties begins by stating:

‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’54 The purpose of the Refugee Convention is therefore important when seeking to understand and interpret it. Divining the purpose of the convention is not entirely straightforward, however, and involves a certain degree of positivist pretence that a single intent can be discerned from the disparate motives behind the actors who drafted, amended and voted on it.55 As Lord Lloyd noted of the convention in one of the early landmark United Kingdom refugee law cases, ex p Adan, ‘the final text will have been the product of a long period of negotiation and compromise’.56 The language employed would, therefore, as with many other treaties, be expected to be somewhat imprecise. Lord Lloyd went on to say that:

one is more likely to arrive at the true construction of article 1A(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach.57

The courts have emphasized that the Refugee Convention ‘must be interpreted as an international instrument, not a domestic statute’, meaning that the normal rules of interpretation for domestic statutes should give way before the principles of the Vienna Convention on the Law of Treaties.58 But with 149 state parties to the convention, there is clearly a risk that different jurisdictions might conclude differently on purpose and interpretation. Despite the danger of divergence, a remarkable degree of convergence has been brought about by two influences, both discussed further in Chapter 1. The first is that of the UN High Commissioner for Refugees, who is charged by Article 35 of the Refugee Convention with a duty of ‘supervising the application of the provisions of this Convention’ and with whom state parties are obliged to cooperate. The second, and perhaps even more important, influence has been what has been described as a ‘transnational judicial dialog’ across jurisdictions.59

Judges and jurists agree that the purpose of the Refugee Convention is not simply to save or rescue people: it is not merely or exclusively a humanitarian instrument. At least, if that were the convention’s purpose, it is self-evidently not very good at fulfilling it given the range of those in dire humanitarian need who are excluded from its protection. The drafters sought to balance what has been said to be the ‘competing interests’ of the humane treatment of victims of oppression and the wish of sovereign states to exercise control over those entering their territory.60 The Refugee Convention is generally regarded as a backup or failsafe available to those to whom national protection is unavailable. Goodwin-Gill has written that ‘it is the lack of protection by their own government which distinguishes refugees from ordinary aliens’.61 The idea that a refugee is a person who needs international protection because the protection of their home country is unavailable to them is supported by the way in which international refugee law definitions emerged and then evolved from the 1920s onwards, as we saw previously. In one of the earliest United Kingdom refugee law cases, the essential purpose of the Refugee Convention was said to be ‘to afford protection and fair treatment to those for whom neither is available in their own country’.62 This proposition was later memorably encapsulated by Hathaway in his aphorism that the Refugee Convention offers ‘surrogate or substitute protection’.63 Drawing explicitly on this analysis, La Forest J held in the landmark Canadian case of Ward: ‘International refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations.’64 Courts in Australia, New Zealand and the United Kingdom have explicitly adopted the same approach.65 On this view, ‘the failure of state protection is central to the whole system’ because ‘[t]he general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community’.66 The notion of surrogacy has been criticized, however. Elevating the notion of surrogacy from a shorthand description of the broad function of the Refugee Convention to its conceptual basis has been argued to encourage a focus on the performance of the state from which the refugee comes rather than on the situation of the individual refugee (see further Chapter 4).67

The near unanimity in the jurisprudence is largely shared by philosophers and ethicists, although many have been explicitly or implicitly critical of the convention’s limitations. For Arendt, refugees lack ‘the right to have rights’ and are cast adrift as ‘the scum of the earth’ in a system of sovereign nation-states.68 But for those to whom asylum is offered, it can act as ‘a genuine substitute for national law’.69 Haddad goes further and asserts that refugees are ‘an inevitable if unintended consequence of the international states system … They are the human reminder of the failings of modern international society’.70 The refugee is both a victim and ward of this international society. She proposes an alternative definition of a refugee as ‘an individual who has been forced, in significant degree, outside the domestic political community indefinitely’. In his influential essay ‘Who Is a Refugee?’, Shacknove argues from a humanitarian and ethical perspective that it is ‘absence of state protection which constitutes the full and complete negation of society and the basis of refugeehood’.71 He concludes that the Refugee Convention does not go far enough in compensating for failure of state protection, though. States can and do fail their citizens within their own borders and, while persecution might be a sufficient condition to show state failure, it should not be a necessary condition. For Shacknove, a refugee is a person ‘whose government fails to protect their basic needs, who have no remaining recourse other than to seek international restitution of these needs, and who are so situated that international assistance is possible’. Gibney pragmatically accepts the need for alienage but otherwise takes a similar view and argues that what distinguishes a refugee from other ‘foreigners in need’ is that ‘he or she is in need of the protection afforded by short or long-term asylum (i.e. residence in a new state) because there is no reasonable prospect of that person finding protection any other way’.72 Emphasizing the political dimension of a grant of asylum, Price argues that asylum ‘responds to the distinctive situation of persecuted people, who have been expelled from their political communities, by expressing condemnation of persecutory regimes and by providing a remedy – surrogate membership abroad – that matches the social harm they have suffered’.73 Owen defines refugees as ‘persons whose basic rights are unprotected by their state and can only be protected through recourse to the international order of states acting in loco civitatis’.74 In a rare dissent, Betts and Collier condemn the Refugee Convention as an antiquated and Eurocentric product of the Cold War intended primarily to permit victims of Soviet state persecution to relocate to the West.75 They prefer a purely humanitarian conception of the refugee based on the moral duty of rescue and the need to restore autonomy to the refugee. Observing that the de facto international response to a refugee crisis is the pitching of tents, they eschew a theory of surrogacy or debate about principled international legal solutions which are often ignored in practice. They propose instead that wealthy countries should, of their own volition, motivated partly by moral duty and partly by self-interest, fund regional solutions more proximate to refugee-producing countries which provide jobs through private enterprise and ‘development areas’.

The interpretation of all aspects of the refugee definition has been influenced by the prevalent surrogacy approach, with the divined purpose of the Refugee Convention being considered relevant to determining the standard of proof, the level of risk of harm, the meaning of the words ‘being persecuted’, the interpretation and role of the convention grounds and the understanding of what is meant by ‘protection’. Broad agreement on the purpose of the Refugee Convention does not inexorably lead to agreement on the interpretation of these different words and concepts, however. In Horvath, for example, the case in which the United Kingdom’s House of Lords adopted the language of surrogate protection, Lord Lloyd accepted the analysis of the majority on the purpose of the Refugee Convention but nevertheless dissented on the meaning of the word ‘persecution’.76 Even the meaning of ‘protection’ has been contested. Fortin agrees that the Refugee Convention offers surrogate protection but argues that the protection of which a refugee must be unable or unwilling to avail themselves is the diplomatic protection of their country of nationality.77 While this view has not gained much traction in case law, it illustrates the potential for divergent views.78

Criticisms of the Refugee Convention

The Refugee Convention has been criticized by some scholars and politicians as a Eurocentric product of the Cold War which fails refugees because it is outdated and ill-suited to modern refugee crises.79 Some argue that the convention needs to be strengthened through new mechanisms of enforcement and mandatory sharing of financial burdens and responsibility for refugees. Others suggest the convention, by permitting but not facilitating refugee mobility, rewards only those refugees who are able to travel, not necessarily the most vulnerable refugees most in need of assistance. They argue the convention should be sidelined and replaced with tailored national or regional solutions. Those advocating for change often seek to appropriate the concept of compassion to support their position, for example arguing that refugees should be prevented from undertaking dangerous journeys or falling into the hands of people smugglers by deterring them from setting out on such journeys in the first place.80 Others respond that it is these supposedly compassionate policies of non-entrée and deterrence which cause the journeys to be dangerous and that safe and legal routes to claim asylum would be a more humane response.

It is hard to argue that the Refugee Convention does not have Eurocentric origins. As we have seen, the legal definition of a ‘refugee’ emerged in Europe in the interwar period in response to events in Europe. Earlier conventions and the Refugee Convention itself were negotiated and agreed at a time when many states in the Global South had no seat at the table because they remained under colonial rule. The delegates to the Conference of Plenipotentiaries that finalized the text of the Refugee Convention were predominantly from Western European states, although countries including Colombia, Egypt, Turkey, Venezuela and Yugoslavia (the only Soviet country present) were represented. The version of the convention agreed in 1951 included an option for a state party to limit the definition of a refugee to events arising in Europe.81 This undoubtedly and understandably gives the impression of Eurocentrism. Only a handful of European state parties exercised the option to limit the scope of the definition, though; it was more commonly adopted outside Europe.82 In the initial drafts of the refugee definition, the limitation to events in Europe was an inherent part of the definition and it was European powers, namely the United Kingdom and France, that first pushed for a universal refugee definition (although France later reversed its position). Newly independent India and Pakistan engaged enthusiastically with the early drafting process but grew disillusioned by the proposed limitation to Europe, the otherwise narrow nature of the definition and the profound lack of international interest in or material aid for the massive movement of population caused by the partition of British India.83 Neither state ratified the new convention, and by 1961 only 27 states had done so, most of which were European. The abandonment of the temporal and geographical limitations to the Refugee Convention in 1967 was too little and too late to placate many defiant states.84 Today, several significant refugee host countries still have not ratified the Refugee Convention, including Bangladesh, India, Iraq, Jordan, Lebanon, Malaysia and Pakistan. The nature of the institutions in charge of refugee protection has also been said to be ‘intrinsically Eurocentric’ and the regime’s ‘grandiose aspirations of universalism’ have been argued to ‘present an illusory picture of accessible protection and humanitarianism, which makes all other forms of alternate histories, conceptions, locations of practice and discourses optional and relevant only as critiques to this larger hegemonic framework’.85 Even international law itself, of which the Refugee Convention is part, has been criticized as a colonial, Eurocentric paradigm.86

The origins of the Refugee Convention are therefore undoubtedly European and were seen as such from the outset. It does not necessarily follow that the key principles of the convention are not universal. Examination of state practice in South Asia, for example, reveals respect for the principle of non-refoulement and other protection norms despite none of these countries ratifying the Refugee Convention.87 The principle of non-refoulement is so widely accepted, even by states which have not ratified the convention, that it has been argued by some to have attained the status of customary international law.88 Those who suggest the Refugee Convention is not suited to modern, large, spontaneous flows of unauthorized refugees appear to forget that this was exactly the historical context of the emergence of the refugee in international law in the interwar period. The 1951 convention was negotiated and drafted in the immediate aftermath of truly massive population displacement and large, unauthorized movement of refugees was at the forefront of the minds of the drafters of the convention. Similarly, the suggestion that the ‘new asylum seekers’ originating in the Global South from the 1980s onwards were somehow radically different from the invented idea of the ‘normal’ refugee who was ‘white, male and anti-communist – which clashed sharply with individuals fleeing the Third World’ has been criticized.89 This retrospective reimagining of refugees, described by leading international refugee law scholar B.S. Chimni as the ‘myth of difference’, ignores the evolution of the refugee definition from the 1920s onwards and the reality of refugee flows during the Cold War itself. There were millions of refugees in Europe in the interwar and Second World War period, millions of refugees fled conflict in China between 1949 and 1950 and from the Korean War of 1950 to 1953, the Hungarian crisis of 1956 gave rise to an estimated 200,000 refugees and the conflicts in South East Asia caused as many as three million refugees to flee in the late 1970s and 1980s.90 Few of these refugees, who came from many walks of life and fled for many reasons, would have matched the imagined picture of the ‘normal’ Cold War refugee.

The Cold War hypothesis can be traced back to arguments advanced by Soviet delegates to the United Nations in the immediate post-war years. During the debate on the creation of the office of High Commissioner for Refugees in 1950, for example, the Russian delegate asserted that the new organization was ‘intended to perpetuate the bondage of refugees and displaced persons and to doom them to hunger and the privation of rights’.91 He went on to argue, unironically underlining the whole point of refugee status, that those who ‘refuse to accept assistance from the government of the country of which they are nationals and refuse to co-operate with their own people in the reconstruction of their country new and democratic foundations’ should not be considered refugees.92 Likewise, the Polish delegate opined that refusal to repatriate Soviet citizens amounted to a policy of ‘acquisition of cheap labour’ by the United States and the United Kingdom.93 The accusations were not completely fanciful. Under the auspices of the European Volunteer Worker scheme, the United Kingdom did in fact recruit an estimated 91,000 displaced people from the Baltics, Balkans and central and eastern Europe as workers in the post-war years under circumstances that involved a significant degree of compulsion.94 However, refugees could return to their own countries voluntarily should they wish to, and the fact the workers were refugees and therefore could not be forced to leave if they fell sick or were judged unsuitable was considered by British officials a disadvantage. Terje Einarsen, in a detailed consideration of the drafting history, concludes that the refugee definition was, ‘contrary to common belief, not influenced much by the Cold War’.95 The United States did not, after all, ratify the resulting convention and only ratified the protocol in 1968. There was if anything more disagreement among Western powers on aspects of the refugee definition than between the West and the rest. Similarly, Matthew Price concedes that the refugee definition was used for political ends during the Cold War but, tracing its deep historical and philosophical origins, he argues that the granting of asylum has always expressed political values and communicated condemnation of persecuting regimes.96

Global Compact on Refugees

There has been no real change to the fundamentals of the international law framework protecting refugees since the 1967 protocol removed the temporal and geographical limitations to the 1951 Refugee Convention. An attempt to enshrine a right of access to asylum in international law began with the Declaration on Territorial Asylum of 1967 but ended with failure to agree a full and binding convention ten years later. The prospect of legally binding and enforceable positive reforms to enhance the protection provided by the Refugee Convention now seems remote. This is not to say that refugee law itself has stood still, as the following chapters will show. But positive reforms to enhance the protection of refugees now appears to depend on shifting norms, regional protection arrangements and on other areas of international law.

The United Nations General Assembly’s New York Declaration for Refugees and Migrants of 2016 is a case in point.97 This non-binding and unenforceable statement of principles and exhortations led to the adoption of the equally non-binding and unenforceable Global Compact on Refugees of 2018.98 The objectives of the latter document are stated to be to ease pressures on host countries, enhance refugee self-reliance, expand access to third-country solutions and support conditions in countries of origin for return in safety and dignity.99 Essentially, the hope is that better immediate refugee reception arrangements can be made when a refugee crisis arises, the burden of hosting refugees can be more widely shared and that durable solutions can be found for refugees, namely voluntary return to their country of origin, resettlement away from first countries of asylum or integration into the economy and society of whichever country they reside. Member states of the United Nations committed to convening a Global Refugee Forum every four years and the agenda at such meetings is intended to be set by the objectives of the Global Compact. One of the principles underpinning the agreement is the adoption of a ‘multi-stakeholder and partnership approach’ whereby actors other than central governments are engaged in responses and solutions for refugees. This includes humanitarian and development actors, the World Bank, national parliaments, local government, cities and municipalities, civil society organizations, faith-based groups, the private sector and academics. Without specifically referencing the rights afforded to refugees by the Refugee Convention, the Global Compact encourages focus on providing refugees with education, jobs and livelihoods, health care, decent living circumstances, food security, civil and birth registration and addressing the specific needs of women and children.

The Global Compact on Refugees has politely been described by Alexander Betts as ‘relatively modest in scope and ambition’ and somewhat less politely by James Hathaway as the ‘Global Cop-Out on Refugees’.100 It was accompanied by the Global Compact for Migration, which sets out 23 also non-binding and unenforceable objectives. Many of them are relevant to refugees.101 For example, Objective 8 is to ‘[s]ave lives and establish coordinated international efforts on missing migrants’ and clearly applies to putative but as yet unrecognized refugees in flight. It is too early to assess the impact of the compacts, if any, but we will return to the issue in the Conclusion.

Structure of the book

As intimated earlier, the structure of this book broadly follows the structure of the Refugee Convention. Chapter 1 examines the outline of the legal structure of international refugee protection. The Refugee Convention is the single most important legal instrument but it is not alone. It sits alongside other international legal instruments, which can add context, interpretative value and complementary forms of protection. Regional and domestic legal regimes add further interpretation and sometimes substance to the text of the convention. In countries that have not ratified the Refugee Convention, these other forms of protection – variously referred to as alternative, complementary, humanitarian, subsidiary or supplementary protection – may be the only forms of asylum available. Jurisprudence at international, regional and national levels has elucidated the meaning of the words and concepts of the convention and other legal instruments, and an international community of refugee law has influenced the evolution of common understanding in many countries. By their nature, regional and domestic interpretative aides and understandings have led to a certain amount of divergence, however, and, against that, UNHCR provides guidance intended to act as a centripetal force to prevent excessive fragmentation. While this book focuses principally on refugees as defined by the Refugee Convention, other forms of asylum and international protection, including under human rights instruments, anti-statelessness and anti-trafficking conventions are also considered.

Chapter 2 examines the role, importance and interpretation of the words in the refugee definition ‘well-founded fear’. These words have become central to the refugee status determination process in many countries; arguably too central. They also influence the approach to asylum in other international legal instruments. This chapter considers the ways in which the words have been analyzed and understood in refugee law literature and case law. Many maintain that literal subjective ‘fear’ is required of a refugee although in reality it is rarely considered necessary in practice – and with good reason. The burden of proof in refugee cases is generally considered to rest with refugees. To ameliorate the effect, the standard of proof is considered to be a low one. Nevertheless, evaluation of the truthfulness or ‘credibility’ of a refugee and their narrative of their past experiences remains highly problematic in the refugee status determination process. Proper focus on future risk is sometimes lost. So-called bad faith claims to refugee status are considered as are sur place claims where the person becomes a refugee while already physically present in another country, for example, due to events in their country of origin. The chapter ends by looking at the relevance of dual nationality and the words ‘country of his former habitual residence’.

Chapter 3 turns to the question, ‘well-founded fear of what?’ The Refugee Convention states that the fear must be of ‘being persecuted’ but does not expand on or elucidate what this means. Different approaches have been adopted at different times (and sometimes at the same time). A linguistic approach of applying the dictionary definition of the word ‘persecute’ is no longer generally preferred, although it is universally accepted that the harm feared must be serious in nature to qualify. Instead, the word is usually understood through the framework of international and/or regional human rights laws. This human rights approach to understanding persecution is often cited, but in reality, rarely applied in a meaningful way in practice.

Understanding the full concept of ‘being persecuted’ requires consideration of other elements of the definition of a refugee. Chapter 4 considers two other related requirements. The first of these is the need to show that protection is not available in the country of origin. While some of the later words of the definition appear to address this issue separately, the absence of state protection has become an integral part of the concept of being persecuted in many jurisdictions. This approach flows from the sometimes controversial idea that the Refugee Convention offers what has been called surrogate international protection, to which a refugee is only entitled if their own country has failed to provide it. The necessary level and effectiveness of the protection available is disputed, at least in theory, with the concept of ‘sufficient’ protection emerging in jurisprudence in the United Kingdom. Also flowing from the idea of surrogate protection is the argument that a refugee does not need protection abroad if they can safely relocate within their own country. Variously called internal protection, internal relocation or the ‘internal flight alternative’, this approach is now embedded in many jurisdictions despite not being an explicit requirement of the convention itself. This approach requires new questions to be asked, such as whether a dangerous journey must be undertaken and whether the existence of a safe but remote desert or mountainous location in a country precludes refugee status.

Chapter 5 looks at what are often called the ‘convention reasons’ or ‘convention grounds’ (and sometimes capitalized). These are the reasons which must be behind the well-founded fear of being persecuted. The role of the convention grounds in refugee law is more significant than may first appear from the text of Article 1A(2). They differentiate the Refugee Convention from more universalist human rights instruments, for example, excluding some who may experience extreme suffering if returned to their country of origin and determining whether ill-treatment is sufficiently serious so as to amount to being persecuted. The chapter considers the meaning, interpretation and extent of the five grounds of race, religion, nationality, membership of a particular social group or political opinion, and the significance of the common thread that runs through them: discrimination. The causal relationship between the convention ground and the persecution experienced is considered along with the concept of imputed or attributed convention grounds in which the persecutor thinks or believes the refugee has a quality which in truth they do not.

Chapter 6 ventures beyond the refugee definition at Article 1A to consider the loss of and exclusion from refugee status. Article 1C of the convention, sometimes referred to as the cessation clause (or clauses because of its sub-clauses), sets out the circumstances in which refugee status can be lost. These include voluntary reavailment of the protection of the country of origin, voluntary re-establishment in the country of origin and an end to the circumstances which gave rise to the claim to refugee status. While formal recognition of refugee status in the Global North often leads to settlement, this is not a right conferred on refugees by the Refugee Convention itself. Some individuals are excluded by Article 1F of the convention from becoming refugees at all because of their actions outside the country of refuge. The meaning and extent of these exclusion clauses, which cite crimes against peace, war crimes, crimes against humanity, serious non-political crimes and acts contrary to the purposes and principles of the United Nations, are considered. Those who commit serious crimes in the country of refuge and who are regarded as a danger to the security or community of the country concerned can, under Article 33(2) of the convention, be denied the benefits of refugee status in some circumstances. The governments of refugee hosting countries have tended to interpret these concepts expansively with the effect that more refugees are excluded from the protection of the convention. The effect has been to generate high-level case law in several jurisdictions on the level of personal responsibility and seriousness of the conduct that is needed to engage these exclusion clauses.

The rights of refugees conferred – or not – by the Refugee Convention are the subject of Chapter 7. The most important of these is the right of non-refoulement, meaning the right of a refugee not to be returned to their country of origin either directly or indirectly. The convention also sets out rights to work, self-employment, freedom of association, freedom of religion, public housing, education, social security and more. There is a scheme to these rights based on the level of attachment of the refugee to the host country, and the rights are not all conferred in absolute terms. There is no explicit right to family unity in the convention itself, with the result that some refugees struggle to reunite themselves with family members left behind in the country of origin. There is also no explicit right to enter a country of refuge or to have one’s claim to fulfil the definition of a refugee determined swiftly or indeed at all. The closest the convention itself comes to protecting refugees who are in flight is the non-penalization clause, which in some circumstances prevents state parties from imposing penalties on a refugee for their illegal entry or presence. The absence of explicit procedural protection for putative refugees has enabled some countries to explore ‘off-shore processing’ whereby refugees are intercepted and redirected before arrival or even simply removed to another country to have their claims decided there instead.

Chapter 8 turns to the process of refugee status determination, with the process in the United Kingdom being used as an example. While there is no formal process mandated by the convention, some norms have developed in the Global North, as have some trends in the treatment and processing of refugees. These include securitization of borders, policies of deterrence, denial of mainstream welfare benefits and accommodation, use of detention and a sceptical and sometimes even cynical approach to determining whether refugees are telling the truth about their experiences. This chapter also looks at what can happen in practice to refugees after their status has been recognized.

Finally, the conclusion briefly considers the successes and failures of the protection regime represented by the Refugee Convention and the issue of durable solutions for the vast majority of refugees who remain outside the Global North. The book ends by looking to the future with the issue of climate change and the UN Global Compact on Refugees.

1

UNHCR (2021) Global Trends in Forced Displacement in 2020, Brussels, UNHCR.

2

UN General Assembly, Convention Relating to the Status of Refugees (28 July 1951), United Nations, Treaty Series, Vol. 189, p 137.

3

UN General Assembly, Protocol Relating to the Status of Refugees (31 January 1967), United Nations, Treaty Series, Vol. 606, p 267.

4

UN General Assembly, Protocol Relating to the Status of Refugees (31 January 1967), United Nations, Treaty Series, Vol. 606, p 267, Article 1.

5

Betts, A. (2013) Survival Migration: Failed Governance and the Crisis of Displacement, New York: Cornell University Press, p 23.

6

Crawley, H. and Skleparis, D. (2018) ‘Refugees, Migrants, Neither, Both: Categorical Fetishism and the Politics of Bounding in Europe’s “Migration Crisis”’, Journal of Ethnic and Migration Studies, 44(1): 48–64.

7

See for example Hathaway, J. (2007) ‘Forced Migration Studies: Could We Agree Just to “Date”?’, Journal of Refugee Studies, 20(3): 349–369.

8

Hamlin, R. (2021) Crossing: How We Label and React to People on the Move, Stanford: Stanford University Press, p 74.

9

Gil-Bazo, M.-T. and Guild, E. (2021) ‘The Right to Asylum’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press, pp 868–869.

10

Price, M. (2009) Rethinking Asylum: History, Purpose, and Limits, Cambridge: Cambridge University Press, Chapter 1.

11

See discussion in R v Immigration Officer at Prague Airport, ex p European Roma Rights Centre [2004] UKHL 55, [2005] 2 AC 1 [11]-[12] (Lord Bingham).

12

Aliens Act 1905, s 1(3).

13

Arendt, H. (2017) The Origins of Totalitarianism, London: Penguin, p 384.

14

Hathaway, J. (1984) ‘The Evolution of Refugee Status in International Law: 1920–1950’, International and Comparative Law Quarterly, 33(2): 348–380; Skran, C. (2011) ‘The Historical Development of International Refugee Law’, in Zimmermann, A. (ed.) The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press.

15

Goodwin-Gill, G. (2021) ‘International Refugee Law in the Early Years’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press, p 41.

16

Goodwin-Gill, G. (2021) ‘International Refugee Law in the Early Years’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press, p 37.

17

Hathaway, J. (2021) The Rights of Refugees under International Law (2nd edn), Cambridge: Cambridge University Press, pp 26, 29.

18

League of Nations Treaty Series, Vol. CXCII, No. 4461, p 59.

19

Marrus, M. (1985) The Unwanted: European Refugees from the First World War through the Cold War, Oxford: Oxford University Press.

20

Loescher, G. (2001) The UNHCR and World Politics: A Perilous Path, Oxford: Oxford University Press, p 36.

21

UN General Assembly Resolution 8(1) on the question of refugees (UN Doc A/RES/8(I)).

22

UN Economic and Social Council resolution 18 (III) of 3 October 1946.

23

Einarsen, T. (2011) ‘Drafting History of the 1951 Convention and the 1967 Protocol’, in Zimmermann, A. (ed.) The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, p 46.

24

Constitution of the International Refugee Organization, approved by the General Assembly of the United Nations in resolution 62 (I) of 15 December 1946 (United Nations, Treaty Series, Vol. 18, p 3), Annex I, Part I, Section A(1).

25

Resolution 319 (IV) of 3 December 1949 of the United Nations General Assembly; Statute of the Office of the United Nations High Commissioner for Refugees, adopted by the General Assembly on 14 December 1950 as Annex to Resolution 428 (V).

26

Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res 428(V), 14 December 1950, Articles 8 and 9.

27

Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res 428(V), 14 December 1950, Article 6.

28

See Loescher, G. (2001) The UNHCR and World Politics: A Perilous Path, Oxford: Oxford University Press.

29

Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res 428(V), 14 December 1950, Article 9.

30

Loescher, G. (2017) ‘UNHCR’s Origins and Early History: Agency, Influence, and Power in Global Refugee Policy’, Refuge, 33(1): 77–86, 79.

31

UNGA Res 1388 (XIV), 20 November 1959.

32

Loescher, G. (2001) The UNHCR and World Politics: A Perilous Path, Oxford: Oxford University Press, p 1. Just two years after publication, Loescher himself suffered life-changing injuries in a suicide bombing in Baghdad while undertaking humanitarian work.

33

IA v The Secretary of State for the Home Department [2014] UKSC 6 [28]–[29].

34

Betts, A. (2010) ‘The Refugee Regime Complex’, Refugee Survey Quarterly, 29(1): 12–37.

35

Global Compact on Refugees (UN Doc A/73/12) (2 August 2018).

36

Loescher, G. (2021) Refugees: A Very Short Introduction, Oxford: Oxford University Press, pp 62–63.

37

Milner, J. and Ramasubramanyam, J., ‘The Office of the United Nations High Commissioner for Refugees’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press, pp 189–192.

38

Milner, J. and Ramasubramanyam, J., ‘The Office of the United Nations High Commissioner for Refugees’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press, p 190. Slaughter, A. and Crisp, J. (2008) ‘A Surrogate State? The Role of UNHCR in Protracted Refugee Situations’, in Loescher, G., Milner, J., Newman, E. and Troeller, G. (eds) Protracted Refugee Situations: Political, Human Rights and Security Implications, Tokyo: United Nations University Press, pp 123–140.

39

Zieck, M. (2011) ‘Executory and Transitory Provisions, Article 35 of the 1951 Convention/Article II of the 1967 Protocol’, in Zimmermann, A. (ed.) The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, pp 1507–1508.

40

UN Economic and Social Council Resolution 248 (IX) B of 8 August 1949.

41

Memorandum by the Secretary-General, 3 January 1950 (UN Doc E/AC.32/2).

42

Oberoi, P. (2001) ‘South Asia and the Creation of the International Refugee Regime’, Refuge, 19(5): 36–45.

43

Ravichandran and Sandralingham v Secretary of State for the Home Department [1996] Imm AR 97 (UK CA) (Simon Brown LJ); Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 (Aus HC) (McHugh J).

44

Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74, [2002] WLR 1891 [30].

45

Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 (Aus HC) (Dawson J).

46

Respectively Lord Hoffman in R v Immigration Appeal Tribunal, ex p Shah [1999] 2 AC 629 (UK HL) and Hathaway, J. (1991) The Law of Refugee Status, Toronto: Butterworths Canada, pp 104–105.

47

Refugee Convention, Article 31.

48

UNHCR (1979) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (re-issued 2011) [28].

49

Hathaway, J. and Foster, M. (2014) The Law of Refugee Status (2nd edn), Cambridge: Cambridge University Press, p 1.

50

See for example Hoxha v Secretary of State for the Home Department [2005] UKHL 19, [2005] WLR 1063 [60]; G v G [2021] UKSC 9 [81–82]; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 (Aus HC) [96] (Kirby J); Németh v Canada (Minister of Justice) [2010] 3 SCR 281 [50]; Pacheco Tineo Family v Bolivia, Inter-American Court of Human Rights, Series C No. 272, 25 November 2013 [147]; Qualification Directive 2011/95/EU, Preamble [21].

51

See further Chapter 2.

52

UNHCR (1979) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (re-issued 2011) [44]; Goodwin-Gill, G. (1983) The Refugee in International Law, Oxford: Oxford University Press, p 45.

53

Convention Relating to the Status of Refugees 1951, Article 38.

54

Vienna Convention on the Law of Treaties 1969, Article 31(1). While the treaty came after the Refugee Convention of 1951 and is not formally retroactive, it is considered to constitute customary international law.

55

See for example Chimni, B.S. (1998) ‘The Geopolitics of Refugee Studies: View from the South’, Journal of Refugee Studies, 11(4): 350–374.

56

[1999] AC 293 (UK HL).

57

R v Secretary of State for the Home Department, ex p Adan [1999] 1 AC 293 (UK HL). See also Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 (Aus HC) (Brennan CJ).

58

See for example Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 (Aus HC), ex p Adan and Aitsegur [2001] 2 AC 477 (UK HL), Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426 [4], R v Afsaw [2008] UKHL 31, [2008] 1 AC 1061 [125].

59

Hathaway, J. and Foster, M. (2014) The Law of Refugee Status (2nd edn), Cambridge: Cambridge University Press, pp 4–5.

60

R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 AC 1 [15] (Lord Bingham). See also Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 (Aus HC); Rodriguez v United States (1987) 480 US 522 525–526 (US SC).

61

Goodwin-Gill, G. (1983) The Refugee in International Law, Oxford: Oxford University Press, p 6.

62

R (on the application of Sivakumuran) v Secretary of State for the Home Department [1988] AC 958, 992H-993A (UK HL).

63

Hathaway, J. (1991) The Law of Refugee Status, Toronto: Butterworths Canada, p 135.

64

Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 [12] (Can SC).

65

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 (Aus HC) (Dawson J); Butler v Attorney-General [1999] NZAR 205 (NZ CA) [47] (Keith J), Horvath v Secretary of State for the Home Department [2000] AC 489 (UK HL).

66

Horvath v Secretary of State for the Home Department [2000] AC 489 (UK HL) (Lord Hope).

67

Goodwin-Gill, G. and McAdam, J. (2021) The Refugee in International Law (4th edn), Oxford: Oxford University Press, pp 7–9.

68

Arendt, H. (2017) The Origins of Totalitarianism, London: Penguin, pp 388, 349.

69

Arendt, H. (2017) The Origins of Totalitarianism, London: Penguin, p 386.

70

Haddad, E. (2008) The Refugee in International Society, Cambridge: Cambridge University Press, pp 1, 3.

71

Shacknove, A.E. (1985) ‘Who Is a Refugee?’, Ethics, 95(2): 274–284.

72

Gibney, M. (2004) The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees, Oxford: Oxford University Press, p 8.

73

Price, M. (2009) Rethinking Asylum: History, Purpose, and Limits, Cambridge: Cambridge University Press, p 13.

74

Owen, D. (2020) What Do We Owe to Refugees?, Cambridge: Polity, p 50.

75

Betts, A. and Collier, P. (2017) Refuge: Transforming a Broken Refugee System, London: Penguin, pp 6–7.

76

[2001] AC 489 (UK HL) (Lord Lloyd).

77

Fortin, A. (2000) ‘The Meaning of “Protection” in the Refugee Definition’, International Journal of Refugee Law, 12(4): 548–576.

78

It was cited with approval in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (Aus HC) by Gleeson CJ at paragraph 21 and McHugh and Gummow JJ at paragraph 73.

79

See for example Betts, A. and Collier, P. (2018) Refuge: Transforming a Broken Refugee System, St. Ives: Penguin. In reply, see White, B. (2019) ‘“Refuge” and History: A Critical Reading of a Polemic’, Migration and Society: Advances in Research, 2(1): 107–118.

80

See analysis in Sirriyeh, A. (2018) The Politics of Compassion: Immigration and Asylum Policy, Bristol: Bristol University Press.

81

Refugee Convention, Article 1B.

82

Bem, K. (2004) ‘The Coming of a “Blank Cheque” – Europe, the 1951 Convention, and the 1967 Protocol’, International Journal of Refugee Law, 16(4): 626 n 77.

83

Oberoi, P. (2001) ‘South Asia and the Creation of the International Refugee Regime’, Refuge,19(5): 36–45.

84

Hamlin, R. (2021) Crossing: How We Label and React to People on the Move, Stanford: Stanford University Press, pp 96–99.

85

Ramasubramanyam, J. (2018) ‘Subcontinental Defiance to the Global Refugee Regime: Global Leadership or Regional Exceptionalism?’, Asian Yearbook of International Law, 24: 60, 78–79.

86

Anghie, A. (2006) ‘The Evolution of International Law: Colonial and Postcolonial Realities’, Third World Quarterly, 27: 739.

87

Ramasubramanyam, J. (2021) ‘Regional Regimes: South Asia’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press.

88

See for example Costello, C. and Foster, M. (2016) ‘Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’, Netherlands Yearbook of International Law, 46: 273.

89

Chimni, B.S. (1998) ‘The Geopolitics of Refugee Studies: View from the South’, Journal of Refugee Studies, 11(4): 350–374.

90

Mayblin, L. (2014) ‘Colonialism, Decolonisation, and the Right to be Human: Britain and the 1951 Geneva Convention on the Status of Refugees’, Journal of Historical Sociology, 27(3): 423–441.

91

Mr Soldatov of Russia, General Assembly Official Records, 5th Session, A/PV.325 at 73 (14 December 1950).

92

Mr Soldatov of Russia, General Assembly Official Records, 5th Session, A/PV.325 at 77 (14 December 1950).

93

Mr Drohojowski of Poland, General Assembly Official Records, 5th Session, A/PV.325 at 111 (14 December 1950).

94

Kay, D. and Miles, R. (1988) ‘Refugees or Migrant Workers? The Case of the European Volunteer Workers in Britain (1946–1951)’, Journal of Refugee Studies, 1(3–4): 214–236, 223.

95

Einarsen, T. (2011) ‘Drafting History of the 1951 Convention and the 1967 Protocol’, in Zimmermann, A. (ed.) The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, p 67.

96

Price, M. (2009) Rethinking Asylum: History, Purpose, and Limits, Cambridge: Cambridge University Press, pp 7, 57.

97

UN General Assembly (2015) New York Declaration for Refugees and Migrants (UN Doc A/RES/71/1).

98

Global Compact on Refugees (UN Doc A/73/12 (Part II)) (2 August 2018).

99

Global Compact on Refugees (UN Doc A/73/12 (Part II)) (2 August 2018) [7].

100

See ‘Special Edition: The 2018 Global Compacts on Refugees and Migration’, International Journal of Refugee Law, 30(4), December 2018.

101

Global Compact for Safe, Orderly and Regular Migration (UN Doc A/RES/73/195) (19 December 2018).

Suggested further reading

  • Bem, K. (2004) ‘The Coming of a “Blank Cheque” – Europe, the 1951 Convention, and the 1967 Protocol’, International Journal of Refugee Law, 16(4): 626.

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  • Betts, A. (2013) Survival Migration: Failed Governance and the Crisis of Displacement, New York: Cornell University Press, Chapter 1.

  • Cantor, D. (2016) ‘Defining Refugees: Persecution, Surrogacy and the Human Rights Paradigm’, in Cantor, D. and Burson, B. (eds) Human Rights and the Refugee Definition: Comparative Legal Practice and Theory, Leiden: Brill.

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  • Chimni, B.S. (1998) ‘The Geopolitics of Refugee Studies: View from the South’, Journal of Refugee Studies, 11(4): 350374.

  • Crawley, H. and Skleparis, D. (2018) ‘Refugees, Migrants, Neither, Both: Categorical Fetishism and the Politics of Bounding in Europe’s “Migration crisis”’, Journal of Ethnic and Migration Studies, 44(1): 4864.

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  • Einarsen, T. (2011) ‘Drafting History of the 1951 Convention and the 1967 Protocol’, in Zimmermann, A. (ed.) The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press.

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  • Goodwin-Gill, G. (2021) ‘International Refugee Law in the Early Years’, in Costello, C., Foster, M. and McAdam, J. (eds) The Oxford Handbook of International Refugee Law, Oxford: Oxford University Press.

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  • Hathaway, J. (1984) ‘The Evolution of Refugee Status in International Law: 1920–1950’, International and Comparative Law Quarterly, 33(2): 348– 380.

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  • Hathaway, J. and Foster, M. (2014) The Law of Refugee Status (2nd edn), Cambridge: Cambridge University Press, Introduction.

  • Loescher, G. (2021) Refugees: A Very Short Introduction, Oxford: Oxford University Press.

  • Oberoi, P. (2001) ‘South Asia and the Creation of the International Refugee Regime’, Refuge, 19(5): 36– 45.

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