Legal professionals don’t personal the phrase “refugee”. The time period has been in use because the eighteenth century and has its personal evocative, wider that means within the public consciousness. These fleeing Ukraine or relocating to the UK from Hong Kong can validly be known as “refugees”, for instance, even when they aren’t formally recognised as refugees, may not even qualify for refugee standing and may not describe themselves as refugees.
Earlier than we get to that, we now have hundreds of content material about refugees and asylum on our web site. One of the best place to see what we’ve bought is to try our Asylum Hub web page. There yow will discover our refugee regulation starter pack, our assortment of articles addressing numerous asylum myths, our 60 second explainer movies, our most up-to-date articles about trafficking, hyperlinks to vital House Workplace coverage paperwork about asylum, signposts to high organisations and charities working with refugees and way more.
We’re planning another refugee-related content material for you over the subsequent week as properly, together with an up to date briefing on the state of the UK’s asylum system, a refresh of our submit on the distinction between an “asylum seeker” and a “refugee” and a brand new submit on the upper commonplace of proof beneath the Nationality and Borders Act 2022.
In case you are interested by refugee points, you possibly can signal as much as our refugee and asylum e-newsletter here. As quickly as we publish one thing on refugee or asylum regulation, we’ll ship you an e mail about it. You can even optionally join our fundamental weekly e-newsletter and, if you wish to, one among our different newsletters offering immediate updates on another chosen immigration regulation subjects.
In case you are actually interested by refugee regulation, check out my textbook on Refugee Law, revealed with Bristol College Press. It was reviewed within the Worldwide Journal of Refugee Regulation and I’m happy and relieved to inform it was a constructive one…
What’s the Refugee Conference?
The total title of the Refugee Conference is the 1951 UN Conference on the Standing of Refugees. The unique Conference is right this moment often learn with the 1967 New York Protocol. When attorneys confer with “the Refugee Convention” we’re often utilizing that as shorthand for the 1951 Conference and 1967 Protocol collectively.
The Conference was handed by a particular United Nations convention on 28 July 1951 and entered into drive on 22 April 1954. It was initially backward wanting, within the sense that it was restricted to defending those that grew to become refugees as a consequence of occasions occurring earlier than 1 January 1951. The 1967 Protocol gave the Conference new life, making it a residing, ahead wanting instrument that provided safety on an ongoing foundation.
You may learn concerning the historical past of the Refugee Conference and its full textual content on the UNHCR web site here.
Not all nations have signed as much as each the unique 1951 conference and the 1967 protocol and a few have retained the optionally available geographical limitations which had been permitted when the Refugee Conference was first created. Turkey, which in 2021 hosted some 4 million refugees, has ratified each the conference and protocol however maintains a geographical limitation to “events in Europe”, with the impact that Turkey is due to this fact beneath no worldwide regulation obligation to supply these refugees the rights set out within the conference.
What’s the authorized definition of a “refugee”?
The authorized definition of the time period “refugee” is about out at Article 1A(2) of the Refugee Conference, which defines a refugee as an individual who:
owing to well-founded concern of being persecuted for causes of race, faith, nationality, membership of a specific social group or political opinion is outdoors the nation of his nationality and is unable or owing to such concern, is unwilling to avail himself of the safety of that nation; or who, not having a nationality and being outdoors the nation of his former recurring residence is unable or, owing to such concern, unwilling to return to it.
The definition will be damaged into constituent elements:
- Possession of a concern that’s properly based slightly than fanciful
- Of therapy that’s so dangerous it quantities to being persecuted
- For one among 5 causes, known as ‘Convention reasons’: race, faith, nationality, membership of a specific social group or political opinion
- Being outdoors one’s nation
- Being unable or unwilling to acquire safety in that nation
All the circumstances should be met for the particular person to be thought-about a refugee. For instance, an individual may need a properly based concern and be unable to get safety but when that particular person doesn’t concern being persecuted for a Conference purpose then the particular person is just not a refugee in authorized phrases. One other particular person could meet all the opposite standards for refugee standing however be residing in a refugee camp in their very own nation, through which case she or he is just not a refugee and as a substitute would usually be known as an Internally Displaced Individual.
In informal dialog or within the media the phrase “refugee” is usually used to confer with folks fleeing civil warfare, catastrophe, famine or battle. There’s nothing fallacious with calling them refugees, however they don’t essentially meet the authorized definition of a refugee within the Refugee Conference. Even victims of civil warfare don’t at all times qualify for refugee standing, if for instance they’re thought-about to not have been focused by both aspect within the battle however to have fled the overall safety scenario.
Need all this defined in simply 60 seconds? Try our video on the Refugee Conference:
Need all of it explaining in boring outdated written phrases? Learn on…
What does “well founded fear” imply?
There are two dimensions to “well-founded fear” beneath the Refugee Conference:
- The refugee should usually present that she or he is telling the reality. If the entire account of what occurred is fake then often (however not at all times) there will probably be no properly based concern if the particular person is returned.
- The extent of threat of one thing dangerous occurring if the refugee is returned have to be greater than fanciful, in any other case it isn’t “well founded.”
Legal professionals and judges within the UK have traditionally, because the landmark Home of Lords case of ex p Sivakumaran [1988] AC 958, used a typical of proof which is extra beneficiant than the conventional civil commonplace of the stability of possibilities. With the stability of possibilities, an individual should present that one thing is extra probably than not, or that there’s no less than a 51% likelihood of it occurring.
In refugee circumstances the usual of proof is expressed as “reasonable degree of likelihood” or “real risk”. This commonplace was being utilized each to assessing whether or not the refugee is telling the reality and what the possibilities of one thing dangerous occurring are sooner or later. Now that section 32 of the Nationality and Borders Act 2022 has come into impact for asylum claims made on or after 28 June 2022, a extra advanced cut up commonplace of proof will apply. The civil commonplace will apply to evaluation of the refugee’s private traits and previous occasions and the true threat commonplace will apply to evaluation of future threat of hurt. Now we have one other submit taking a look at this alteration in additional element popping out later this week.
What does “persecution” imply?
The that means of “being persecuted” is just not outlined within the Refugee Conference itself. That is deliberate: it permits the that means of the phrase to be versatile and to evolve over time. That is helpful for refugee safety functions, however it does imply that the coed of refugee regulation might want to look to numerous different sources and reference factors so as to perceive the modern that means of the phrase and the way it has advanced. These sources embrace the views of UNHCR (the workplace of the United Nations Excessive Commissioner for Refugees) and refugee regulation lecturers, different related worldwide authorized devices and the home and worldwide courts.
The revered UNHCR Handbook begins its description of persecution at paragraph 55:
There is no such thing as a universally accepted definition of “persecution”, and numerous makes an attempt to formulate such a definition have met with little success. From Article 33 of the 1951 Conference, it could be inferred {that a} risk to life or freedom on account of race, faith, nationality, political opinion or membership of a specific social group is at all times persecution. Different severe violations of human rights — for a similar causes — would additionally represent persecution.
The courts have been cautious of giving particular steerage on the extent of ill-treatment required earlier than that ill-treatment will be described as ‘being persecuted’. The rationale for this obvious vagueness is solely that essentially the most judges realise that inflexible steerage is inappropriate. As Man Goodwin-Gill wrote within the traditional second version of The Refugee in Worldwide Regulation (Oxford, 1996):
There being no limits to the perverse aspect of human creativeness, little objective is served by making an attempt to record all identified measures of persecution. Assessments have to be constructed from case to case by speaking account, on the one hand, of the notion of particular person integrity and human dignity and, on the opposite, of the style and diploma to which they stand to be injured.
Some steerage has emerged over time as to the extent of seriousness the therapy should attain. Within the influential landmark Home of Lords case of Shah and Islam [1999] INLR 144 Lord Hoffman famously adopted the formulation
Persecution = Severe Hurt + The Failure of State Safety
The difficulty of state safety is examined in additional element under, however “serious harm” is as shut because the UK courts have come to providing a working and readily intelligible definition of the excessive threshold for persecution.
Right here within the UK, the Nationality and Borders Act 2022 defines persecution at section 31. Persecution have to be sufficiently severe by its nature or repetition as to represent a extreme violation of a primary human proper or will be an accumulation of assorted measures that have an effect on a person in a comparable method. This may, for instance, embrace an act of bodily or psychological violence, together with sexual violence, authorized, administrative, police or judicial discriminatory measures, prosecution or punishment which is disproportionate or discriminatory or different measures.
How vital are the Refugee Conference causes?
The 5 Conference causes — race, faith, nationality, social group and political opinion — are essential as a result of with out exhibiting that the long run threat is due to one among these causes, a declare to refugee standing will fail.
Which means that some folks generally known as refugees are usually not formally refugees inside the authorized that means of the Refugee Conference. For instance, individuals who flee their houses as a consequence of famine or flooding or environmental catastrophe don’t concern persecution for any of the Conference causes.
A lot of the Conference causes are pretty self-explanatory. Everyone knows roughly what is supposed by race, faith, nationality and political opinion. Some additional rationalization and definition will be discovered within the Nationality and Borders Act 2022 and in case regulation however these phrases are primarily interpreted inside their peculiar that means.
The Conference purpose most open to interpretation is “membership of a particular social group”.
There’s some authorized consensus on what it does not imply:
- The definition shouldn’t be so large that it renders the opposite Conference causes redundant: it isn’t some type of “catch all” class.
- The members needn’t be homogenous, cohesive or small in quantity.
- It’s not needed to point out that every one members of the actual social group are persecuted.
There’s additionally authorized consensus on what it does imply.
- The specific social group should exist independently of the persecution suffered; if persecution alone created a specific social group then there can be no want for some other Conference purpose, rendering them otiose.
- The that means needs to be “of a kind” with the opposite Conference causes.
- Members of that group share an innate attribute, or a standard background that can’t be modified, or share a attribute or perception that’s so elementary to id or conscience that an individual shouldn’t be compelled to resign it.
Section 33 of the Nationality and Borders Act 2022 provides an extra situation: that the social group “has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.” This was beforehand thought-about another method of figuring out a specific social group slightly than an extra requirement, which raises the priority that the change makes it tougher for some folks to qualify as members of a specific social group.
Instance
Ladies have been held to be a specific social group the place there’s proof of systematic State discrimination towards girls: Shah and Islam [1999] 2 AC 629.
Females prone to Feminine Genital Mutilation had been held to be members of a specific social group in Ok and Fornah [2006] UKHL 46.
Being a member of a household was additionally held to be able to being a member of a specific social group in Ok and Fornah [2006] UKHL 46, even the place the persecution directed towards the household initially arose for causes aside from beneath the Conference. This brings a sufferer of a blood feud probably inside the scope of the Conference, for instance.
Homosexual women and men had been held to be able to constituting a specific social group in HJ (Iran) [2010] UKSC 31 the place there’s proof of discrimination.
In SM (PSG, Safety Rules, Regulation 6) Moldova CG [2008] UKAIT 00002 the Tribunal discovered that “former victims of trafficking” and “former victims of trafficking for sexual exploitation” are able to being members of a specific social group due to their shared widespread background or previous expertise of getting been trafficked.
What degree of failure of safety is required?
The Refugee Conference has been described as providing “surrogate international protection”, that means that the place an individual’s personal state persecutes or fails to guard them, they’re entitled beneath worldwide regulation to hunt safety elsewhere. The place an individual faces persecution, no safety is offered and so they can’t fairly be anticipated to relocate elsewhere of their residence nation, they may qualify as a refugee.
The place a state is persecuting an individual, the difficulty of safety does not likely come up. The police are unlikely to supply safety and should certainly be actors of persecution themselves. It’s unlikely in a state persecution case that the sufferer will be capable to discover anyplace secure within the nation involved.
The place the persecution comes from non-public people or non state actors, reminiscent of a political organisation, a faction in a civil warfare or a terrorist organisation, the problems of state safety and inside relocation turn out to be extra related.
In a case known as Horvath [2000] UKHL 37 the Home of Lords held that the take a look at is whether or not the system of safety is one which is usually efficient versus one which ensures prevention of hurt for the particular person looking for asylum. This was a controversial choice and it might probably imply that an asylum seeker is distributed again to a rustic of origin despite the fact that there’s a properly based concern of significant hurt.
The Horvath choice is now codified in section 34 of the Nationality and Borders Act 2022, which states that safety have to be thought-about to be accessible the place the state or an entity controlling the state or a considerable a part of territory “takes reasonable steps to prevent the persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution” and the particular person looking for asylum is ready to entry that safety.
Section 35 of the Nationality and Borders Act 2022 states that an individual can’t qualify for refugee standing if they will fairly be anticipated to journey to and stay in that a part of the nation. The that means of “reasonable” is just not elucidated any additional within the laws itself.
This take a look at for whether or not it’s affordable to anticipate an individual looking for asylum to return to their residence nation and reside someplace else (“internal relocation”) was thought-about by the Home of Lords in two circumstances in pretty fast succession, Januzi [2006] 2 AC 426 and AH (Sudan) [2008] AC 678. These circumstances unhelpfully reply the query of when an asylum seeker may fairly be anticipated to relocate by posing a brand new query: would it not be ‘unduly harsh’? Case regulation makes it clear that it is a excessive take a look at, although: can the particular person lead a comparatively regular life — judged by the usual of their residence nation — with out dealing with undue hardship?
What else is within the Refugee Conference?
In addition to the definition of a refugee at Article 1A(2), the Refugee Conference consists of articles dealing particularly with Palestinian refugees, lack of refugee standing, exclusion from refugee standing and the rights of refugees. If you wish to know extra, take a look at our Asylum Hub or purchase my refugee law book. In addition to taking readers by means of the Refugee Conference itself it consists of chapters on the broader worldwide regulation framework, the historical past and evolution of refugee regulation, outlines the basic options of the UK asylum system and appears to the way forward for refugee regulation and safety.
What’s the distinction between a refugee and an asylum seeker?
Later this week we are going to publish an up to date weblog submit taking a look at this query so we’ll preserve it brief right here.
An asylum seeker is an off-the-cuff time period used to explain somebody who’s looking for asylum however has not but formally been recognised as a refugee.
The phrase “refugee” is typically reserved for profitable asylum seekers, that means those that have achieved formal recognition as a refugee. However that isn’t the entire story. There’s nothing within the Refugee Conference stating {that a} refugee is an individual who has been formally recognised by a state and even by UNHCR as a refugee. The entire thought of a ‘”recognised refugee” or of “refugee status” is completely absent from the Convention, in fact. As soon as a person meets the definition at Article 1A(2) of the Refugee Convention — that they have a well-founded fear of being persecuted and so on — that person is a refugee.
So, a formal recognition by a state or UNHCR that a person is a refugee and a formal grand of “refugee status” merely declares something that was already true: that the person is a refugee because they already meet the definition of a refugee. For this reason, lawyers say that refugee status is declaratory.
An asylum seeker may be a refugee. Given the incredibly high success rates for asylum seekers of certain nationalities — Syrians, Eritreans, Sudanese, Afghans and Iranians for example — it seems entirely appropriate to refer to them as refugees even if they have not yet been formally recognised as such.
What is the difference between a refugee and an economic migrant?
Some people set great store by the difference between refugees and economic migrants. A refugee is a person who flees persecution, they say, and an economic migrant is someone seeking a better life. UNHCR have historically drawn a sharp distinction between the two concepts. This is sometimes referred to in academic circles as the refugee/migrant binary: the idea that you can be a refugee or you can be a migrant but you cannot be both.
The problem is that there is no sharp divide. Rebecca Hamlin has written a whole book about this, which I highly recommend: Crossing: How We Label and React to People on the Move.
There is nothing in the Refugee Convention which excludes from refugee status a person who also, as well as having a well-founded fear of being persecuted and so on, also wishes for a better life. If you were fleeing from Afghanistan, Eritrea, Syria, Ukraine or elsewhere, wouldn’t you wish to settle someplace that isn’t solely secure but additionally the place you possibly can rebuild your life, get a job and be joined by your loved ones? This is among the many causes it’s merciless and inhumane to take away refugees to Rwanda. The prospects for constructing a brand new life for oneself and one’s household in Rwanda are a lot, a lot worse than in the UK.
Numerous refugees flee to adjoining nations and keep in refugee camps. Some hope to return throughout the border. Others lack the wherewithal to maneuver on. However some do transfer on. That doesn’t trigger them to cease being refugees. Many refugees are additionally, concurrently financial migrants. And there’s nothing fallacious with that.
It’s also true that many financial migrants are not refugees. If we think about a Venn diagram, the circle of refugees would largely fall inside the far, far bigger circle of financial migrants.
So, that’s the authorized definition of what “refugee” means in accordance with the Refugee Conference and the way the conference is interpreted right this moment. Personally, I believe it’s wonderful for folks to make use of the phrase extra broadly when referring to victims of flood, famine or different pure disasters. They are going to be looking for refuge, in any case. However for attorneys, the phrase “refugee” has a really particular that means and applies to a a lot slim group of individuals.
This text was up to date by Sonia Lenegan in June 2024.
Inquisitive about refugee regulation? You may like Colin’s ebook, imaginatively known as “Refugee Law” and revealed by Bristol College Press.
Speaking vital authorized ideas in an approachable method, that is an important guide for college kids, attorneys and non-specialists alike.
