The word ‘refugee’ is both evocative and contested; it means different things to different people. For lawyers, the main legal reference point is the UN Refugee Convention of 1951.
This concise and engaging book follows the structure of the Convention to explore international refugee law. Including an introduction to the historical and legal context, Colin Yeo draws on his experience as an immigration barrister to explain the present-day legal framework for global refugee protection. Chapters consider:
the loss of refugee status and exclusion;
the rights of refugees;
and state responses to refugee claims.
The book includes studies of key legal cases, reviews the successes and failures of the Convention and looks ahead to the future, including the impact of climate change and the Global Compact on Refugees.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists.
At the time the Refugee Convention was negotiated and agreed, international human rights law was in its infancy. The Universal Declaration of Human Rights had been agreed in 1948 and included in Article 14 a right to seek (but not necessarily be granted) asylum: everyone has the right to seek and to enjoy in other countries asylum from persecution. The Refugee Convention embodies that right, although as is discussed in , it falls short of providing a right of entry for the purpose of seeking asylum. In turn, the Refugee Convention cites the Universal Declaration of Human Rights as well as the Charter of the United Nations. International human rights law has expanded and evolved considerably since 1951 and the Refugee Convention now sits alongside a developing, sometimes overlapping, system of protection. It has even been argued that human rights law, with its centralized institutions and enforcement mechanisms, has become ‘the primary source of refugee protection’, with the Refugee Convention playing ‘a complementary and secondary role’. Others retort that the decentralized regime of refugee law has led the way in protection from refoulement and has ‘its own progressive dynamic which leads human rights law just as much, if not more, than it follows human rights law’. The situation of specific groups like trafficking victims and stateless persons has been addressed with new international agreements, a right of non-refoulement has been recognized in human rights law, regional legal instruments addressing the situation of refugees have been adopted and various states have either or both incorporated a constitutional right to asylum or passed their own laws delineating access to and the content of refugee status.
The refugee status determination process is often, rightly or wrongly, fixated on the first words of the definition of a refugee: a person who has a ‘well-founded fear’. These simple words do not have a precise, legal meaning. They are capable of being understood in different ways, as the literature and jurisprudence on refugee status have amply established. Many have argued, with considerable weight of authority to support them, that the phrase connotes both a subjective and an objective element to the definition of a refugee. UNHCR argues, for example, 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’. While superficially appealing and certainly consistent with the natural meaning of the words, this distinction between subjective and objective can, at least in theory, deny refugee status to some of the most vulnerable individuals in the world most in need of protection. It has also arguably led to an unnecessary focus on evaluating the ‘credibility’ of claimants to refugee status, a process that has developed something of a mythology to it. Ultimately, in practice, the words have come to be almost universally understood as requiring in refugee cases, firstly, a low standard of proof and, secondly, an inquiry into future risk.
The Refugee Convention protects certain individuals and groups from ‘being persecuted’. No further direct definition is offered in the text of the Convention and the question of what might constitute ‘being persecuted’ has proven to be a challenging one to answer. The ambiguity can be regarded as constructive in nature: from the travaux preparatoires, we know that the drafters of the Refugee Convention had in mind that ‘being persecuted’ involved a high level of harm but they declined to lay down a more precise meaning. As an early scholar of refugee law, Grahl-Madsen, put it, ‘[i]t seems as if the drafters have wanted to introduce a flexible concept which might be applied to circumstances as they might arise; or, in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men’. Goodwin-Gill makes the same point, saying ‘[t]here being no limits to the perverse side of human imagination, little purpose is served by attempting to list all known measures of persecution’. Enumeration of the various horrible acts that might amount to ‘being persecuted’ – or those slightly less horrible acts that might not – becomes self-evidently undesirable when seen in this light. A list may be simple and easily comprehended, but it is too rigid in that it fails to allow for context and is incapable of evolving over time. In 1979, the UNHCR Handbook stated that ‘[t]here is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success’.
Refugees have long been regarded as ‘unprotected persons’. In the interwar period, the absence of national protection was considered the key defining characteristic of a refugee in international law. Even as other qualifying requirements for refugee status began to emerge before, during and immediately after the Second World War, the absence of protection remained central to the various refugee definitions. It was only when the Refugee Convention was agreed that the issue of protection was relegated to the second part of the definition of a refugee in Article 1A(1): ‘…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’. For a stateless refugee, though, it can be seen that refugee status is about inability or unwillingness to return, not the absence of protection as such. The language of protection also arises in the cessation clauses at Article 1C. Where a person voluntarily avails themselves of the protection of their country of nationality or acquires a new nationality and enjoys the protection of that country then a person ceases to be a refugee. Similarly, a person loses his refugee status if he ‘can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’.
As we have seen in the preceding chapters, the Refugee Convention does not protect against all harm. For the convention to be engaged, the harm must reach the threshold necessary to amount to being persecuted. In some jurisdictions, the harm must also be accompanied by a failure of state protection. Even this is insufficient for a person to qualify as a refugee; there must also be a causal link between the persecution and the five specific reasons that engages the Refugee Convention. These reasons are often referred to as the ‘convention reasons’ or ‘convention grounds’ for convenience. They are race, religion, nationality, membership of a particular social group and political opinion. The convention grounds represent protected characteristics which the person concerned cannot or should not be expected to change. There are two broad themes to discuss in this chapter, which addresses these reasons. Firstly is the way in which the convention grounds operate within the scheme of the Refugee Convention. The issue of causation requires exploration, as does the way in which the convention grounds can transform some forms of serious harm into persecutory harm. Secondly is the meaning and scope of the individual convention grounds themselves. Their very existence indicates that the purpose of the Refugee Convention is limited and they can be and have been interpreted both narrowly and expansively.
As well as being gained, refugee status can be lost, taken away or denied. Refugee status may be lost when it is no longer needed because the refugee can return home. In some situations, this may be voluntary on the part of the refugee but the Refugee Convention also provides for countries of asylum to terminate refugee status on certain grounds even if this is against the refugee’s wishes. The provisions in the Refugee Convention addressing loss of refugee status are often referred to as the cessation clauses and are found at Article 1C. Refugee status is also denied in some limited circumstances. Denial of refugee status is aimed at those who would normally be entitled to refugee status but who are considered either not to need it or not to deserve it. These provisions denying refugee status are often referred to as the exclusion clauses and are found at Articles 1D, 1E and 1F of the convention. Article 1D excludes Palestinian refugees on the basis that they are entitled to protection from a different United Nations agency. Article 1E was intended to apply to historic groups of ethnic Germans in post-war Europe but is framed more widely so as potentially to apply to those who have rights equivalent to the citizens of the country in which they reside. Article 1F excludes certain individuals on the grounds of moral opprobrium in order to protect the reputation and integrity of the Refugee Convention. Cessation of or exclusion from refugee status are conceptually distinct from formal retention of refugee status but loss of the benefits of refugee status, including protection from expulsion or refoulement.
The point and purpose of the definition of a refugee so far discussed in the preceding chapters is that a refugee be afforded the rights set out in the Refugee Convention. The most important of these rights is the right of non-refoulement set out at Article 33 of the Refugee Convention: the right not to be returned to face persecution. It is far from the only right the Refugee Convention bestows on a refugee, though. This chapter briefly outlines the rights of refugees at Articles 2 to 34 and the way in which the Refugee Convention imparts those rights to refugees at different points in their literal then metaphorical journey as refugees. The key reference point for analysis and understanding of the rights of refugees is Professor James Hathaway’s substantial work on the subject, The Rights of Refugees under International Law, at the time of writing in its second edition. Hathaway begins by observing that the rights of refugees were in the past largely uncontroversial in the industrialized world because most such countries admitted refugees as long-term residents, either formally or in practice. In doing so, these countries broadly, if incidentally, imparted rights in compliance with the requirements of the Refugee Convention. It was therefore access to the territory, the definition of a refugee and the refugee status determination process that were controversial. The reverse was true in the developing world, where the vast majority of the world’s refugees are hosted.
This chapter focuses on the United Kingdom as an example of the state management of refugees as they enter a country and have their claims to refugee status determined. The administration of borders and refugee status determination processes vary from country to country as the Refugee Convention does not mandate any particular method for determining who is or is not a refugee. There are undoubtedly common themes as well as important differences which emerge from a comparative study but these issues are beyond the scope of this book. Bureaucratic processes are subject to constant change at the government department responsible for borders, immigration and asylum in the United Kingdom, the Home Office. Many such changes are essentially superficial, though, and at the time of writing, the basic structure of the refugee status determination process and the basic experience of the refugee had remained broadly constant since reforms introduced in the late 1990s and early 2000s. This ‘asylum system’ taken as a whole consists of several parts. The first is the externalized border, which as far as possible has been exported to external territories through visa regimes, carrier sanctions, juxtaposed border controls and security measures. These expedients prevent refugees from reaching the territory of the United Kingdom but are presented as being morally counterbalanced by a resettlement programme operated in cooperation with UNHCR which was first launched (at a very small scale) in 2003. The second is an accommodation and support system specific to refugees, into which refugees are forced because they are prohibited from work or self-employment until eventually formally recognized as a refugee.
The current international regime of the protection of refugees has, quite rightly, been subject to sustained criticism. Many millions of refugees find themselves warehoused for years in refugee camps, where multiple generations are unable to work and are denied many of the minimum rights of a normal human life. While talk of tackling the ‘root causes’ of refugee crises is commonplace at an international level, the number of refugees worldwide has dramatically increased in the last decade, more than doubling between 2010 and 2020 from 10 million to over 20 million. Emma Haddad’s argument that refugees are ‘an inevitable if unintended consequence of the international states system’ seems borne out, although this cannot itself explain why the numbers of refugees have risen so swiftly in recent years. Crises in Syria and Venezuela had given rise to around seven million refugees and four million other forcibly displaced people but, similarly, cannot wholly explain the overall increase. Meanwhile, thousands of refugees, shut out by non-entrée policies, die attempting to reach more prosperous countries of asylum. An estimated 40,000 refugees and other migrants died between 2014 and 2020 in the process of moving between countries around the world, with over half of those deaths occurring by drowning in the Mediterranean. Refugees have become a hugely controversial issue in contemporary politics in the Global North. A very substantial portion of public opinion in prosperous countries of asylum considers that the refugee protection regime is too generous and that fewer, not more, refugees should be admitted.