This article is written by Pranav.R, from School of Law, SASTRA University. This exhaustive article deals with international recognition of the status and rights of refugees. Procedure to claim status of refugee and the laws governing it are discussed in detail.

“The world will not be destroyed by those who do evil, but by those who watch them without doing anything.”

-Sir Albert Einstein

Introduction 

There is a huge parity between illegal entry and Refugee which narrows the minds of many countries who do not protect and shelter refugees. Until 1951 there has not been a comprehensive international law that recognises the status and rights of refugees. The Refugee Convention of 1951 has paved the way to recognise and solve the problem of refugees. The signatory countries to this convention have legislated their own national laws with respect to the recognition of refugees. UNHCR has also played an active role to grant refugee status to countries without asylum laws and has been trying to create a safe environment for the refugees who fled from their home country with a strong hope for a better life in some other country.

Who is a refugee

Refugees are people who have fled from their own country to seek shelter in another country due to war, violence, or any gross violation of human rights which made them unable to live in their own country. Article 1(A)(2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality or habitual residence and who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group. Often there is a misconception between the word migrant and a refugee. The reason to exercise the choice of migration is the basic distinguishing factor.  A refugee is an individual who leaves the home country due to a well-founded fear or agony due to violence or human rights violation which made their life unsustainable. However, on the other hand, a migrant is a person who leaves his own country in search of better jobs or other economical reasons. It is vital to differentiate between a refugee and a migrant because refugees are the people who are protected under the Refugee Convention, 1951.

Procedures for claiming asylum

When a person flees from one’s own country to another, one has the right to claim asylum. Asylum is nothing but the legal recognition of those individuals as refugees and the protection of those individuals by the state.  An individual can claim Asylum by following the due process involved: 

Step 1- Registration

A person who is willing to apply for asylum should register with UNHCR. He or she should approach the nearest UNHCR Registration Centre. One should carry with them documents such as birth certificates, marriage certificate, passport, or any other identification documents which they have for submitting it during the UNHCR Registration interview. If there aren’t any documents of proof one can still register with UNHCR. During the registration interview, the person will be asked to fill up a form with basic information about the refugee’s name, date of birth, nationality, education, etc. It is mandatory to answer the question pertaining to the reason to leave the country and the reason for not going back to the country in the form. One will also be given assistance to fill up the form and will be guided through other procedures.  Picture, fingerprint, and iris scan would also be taken from the applicant. 

Step 2- Obtaining an Under Consideration Certificate

After the registration process is over, the applicant will be given a case number and a certificate called ‘Under Consideration’ which acknowledges that the person has applied for asylum and that the application is under process. 

Step 3- Refugee Status Interview

Refugee Status interview can be scheduled between 20 months from the receipt of the Under Consideration certificate. UNHCR will determine the refugee status based on the information provided in the form regarding nationality and the current situation in the home country which the applicant belongs to. The result of the interview can be expected within 12 months from the date of the interview.

Refugee Convention

In light of Article 14 of the Universal Declaration of Human Rights (UDHR) which recognizes the ‘Right to Seek Asylum’, the United Nation adopted the Refugee Convention to protect and safeguard refugees in 1951. In 1951, the convention was entered to protect the refugees fleeing from Europe due to the result of World War 2. The convention was entered on 21st April 1951 and has been subjected to only one amendment to remove the geographic limitation. The 1967 protocol made the Refugee convention universal coverage. The refugee convention is a comprehensive legal instrument that has consolidated all previous instruments relating to refugees. This convention not only gave recognition to refugees but also protected the refugees from exploitation, human trafficking, and other human right violation. 

Article 1 of the refugee convention has defined who can be a refugee and this definition emphasizes the protection of people from different forms of persecution. The fundamental principles emphasized under this convention are non-discriminatory, non-penalization, and non-refoulement. The convention also clearly explains the people who don’t fall under the ambit of refugees. The convention doesn’t apply to people who have committed war crimes and crimes against humanity and have acted contrary to the principle of the UN. It is also not applicable to people who are already receiving aid from the UN. 

The convention has thrived to stand as a pillar to upkeep Article 14 of UDHR. The convention has protected the refugees from being expelled out of the country and has laid down the minimum standards of treatment. It doesn’t place any limitation on the state in improving the lives of refugees. Thus, the refugee convention has played an active role in the recognition and protection of refugees.

Refugee status determinations by UNHCR

Many countries which do not have asylum laws, the status of refugees is adjudicated by the officials of UNHCR in those particular territories. For e.g., the status of refugees in India is adjudicated by the office situated in Chennai and Delhi. After registering in the local UNHCR office, all applicants have the right to attend an individual interview for the examination of the documents and for the grant of refugee status. Asylum seekers should explain and prove the well-founded fear which made their home country inappropriate to live.  The asylum seekers are permitted to bring the witness. UNHCR discourages and prohibits the witness from providing testimony in the presence of applicants. After the Refugee determination examination, all applicants are entitled to know the result of the same. The applicants also have the right to explanation in writing if there is a negative result. The applicants who are not granted refugee status have the right to appeal.

The UNHCR usually determines the refugee on an individual basis. Sometimes there would arise a need for urgency to determine the refugee status. During those times, the UNHCR adopts to decide refugee status based on prima facie refugee status.  All individuals who qualify in the refugee status determination are issued the UNHCR certificate which recognises that the holder is a legitimate refugee and is entitled to protection from refoulement and other basic human rights. 

Rights of refugees

The 1951 convention guarantees many rights to refugees. They are as follows:

• Human rights

Human rights violation is the prime reason for the refugee to flee from their home country to other countries. So it is important that human rights are protected both in the home country and as well as in the host country to solve the problems of refugees. The Refugee Convention 1951 stands as the cornerstone to the recognition of human rights of refugees such as the right to non-refoulement, right to seek asylum, right to equality and non-discrimination, right to return, right to remain, etc.

• Child rights

Children are the worst affected category of people who might be safe in the host country. Yet it makes the survival of the children difficult, who migrate to some foreign country without any support from the parents. Many children are deprived of psychological and educational support which makes their livelihood come to a pity state. There are also high risks of child trafficking for illegal activities which would deprive the basic right to be secured. So it is the responsibility of the UNHCR and the State to protect the children and provide all basic amenities to protect their rights irrespective of their immigration status of their parents or themselves. The “best interests of the child” principle are evidenced in Mugenzi v. France and Tanda-Muzinga v. France. In these cases, the Court emphasized that where family reunification involves children, the national authorities must give precedence to the best interests of the child in the review of the proportionality of the interference with family life. 

• Freedom of movement

Freedom of Movement is, however, a key right guaranteed to refugees under Article 26 of the 1951 convention which states that the States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Freedom of movement of refugees has become an issue of concern in many countries. Many countries that have limited resources host many refugees and confine them to a refugee camp thereby restricting them to move freely and access other rights that they are entitled to. Many countries restrict the movement of refugees by their national laws.

• Non-refoulement

Non-refoulement is the most essential part of refugee laws. Non-refoulement is the protection of a refugee from returning to the home country where the refugee has a reason to fear persecution. The legal protection has been provided under many national and international laws. Article 33 (1)  of 1951 convention has upheld the principle of Non-refoulement which is the heart and soul of the refugee law that has been given assent by 140 countries clearly depicts their willingness to adopt this principle in their national refugee laws. However, the Right of Non- Refoulement is not an absolute right yet subject to two exceptions in which a refugee cannot claim this right is enumerated under Article 33(2). They are as follows:

1. A refugee on reasonable grounds regarded as a danger to the security of the country in which he seeks protection.  
2. A refugee convicted by a final judgement of a particularly serious crime constitutes a danger to the community of that country.

• Right to liberty and security of the person

The reason why the refugees leave their own country in search of another country is due to the lack of security in their homeland in the event of war or violence. Thus it is the obligation of the state to ensure safety to refugees. Article 9 of UDHR guarantees the right to liberty and security to all the people and also protects people from arbitrary arrest and detention. The state which hosts the refugees should cooperate with the UNHCR in the process to grant legal refugee status and should maintain international standards. It is also the duty of the refugees to adhere to laws, rules in the host country.

• Right to family

The 1951 convention is however silent about the right to the unification of family. However, the Final Act of the UN Conference of Plenipotentiaries states that “the unity of the family is an essential right of the refugee. At the same time, it also stressed the special needs of children, particularly unaccompanied minors who have been separated from their parents.

In the chapter on the principle of family unity in its handbook, UNHCR notes that this recommendation in the Final Act is observed by the majority of states, whether or not they are parties to the 1951 Convention or the 1967 Protocol.

However, these do not have any legal conclusion, yet these as “soft law” which aids in the interpretation and application of refugee law instruments. The distinctive approach to family reunification for refugees emerges from two important cases, Tuquabo-Tekle v. the Netherlands and  Gül v. Switzerland.  In the former case, a mother left her daughter behind when she fled Eritrea to seek asylum, following the death of her husband. Her protection needs were recognised not as a 1951 Convention refugee, but rather with another form of (less secure) humanitarian protection. Nonetheless, the Court remarked that it was questionable whether the mother left her daughter behind “her own free will”. Accordingly, it was held that the Netherlands was obliged under Article 8 of the Convention to admit her daughter to the territory so that they could enjoy family life together there.

In contrast, in Gul v. Switzerland, the Court found no violation in Switzerland’s refusal to grant admission to a son to rejoin his father in Switzerland. In that case, the father had sought asylum in Switzerland but was merely granted a residence permit on humanitarian grounds. Considerable time had passed since then, and the father recently had made several visits to his son in Turkey. The Court held that there were no longer “strong humanitarian grounds” for the father to remain in Switzerland, so re-establishing family life in Turkey would be practicable. This analysis reveals that family reunification is generally the only way to protect the right to respect for the family life of refugees’ with current protection needs. 

• Other rights

The other rights of refugees under the convention include:

• The right not to be expelled, except under certain, strictly defined conditions (Article 32)
• The right not to be punished for illegal entry into the territory of a contracting State        (Article 31)
• The right to work (Articles 17 to 19)
• The right to housing (Article 21)
• The right to education (Article 22)
• The right to public relief and assistance (Article 23) 
• The right to freedom of religion (Article 4)
• The right to access the courts (Article 16)
• The right to be issued identity and travel documents (Articles 27 and 28)

Specific problems of climate refugees 

• What does the term climate refugee mean

Climate refugees are refugees who flee from their homes to the country due to climate change. Climate refugees are individuals who are forcibly displaced by short- and long-term natural disasters. Such short-term disasters consist of typhoons, hurricanes, wildfires, and tsunamis, while long-term environmental changes include desertification, deforestation, rising temperatures, and rising sea levels, among others. Environmental problems such as droughts, floods, and food shortages are some of the reasons which force the refugees to cross borders with a belief to lead a better life. Massive changes in climate are one of a distinguished form of persecution.

• Problems of climate refugees

• Across international humanitarian law, human rights law, refugee law, and other bodies of law, protections for climate-induced displaced persons forced to cross international borders are limited, piecemeal, and not legally binding.

• The severity and duration of natural disasters are increasing to the point where peoples’ homelands are no longer habitable, and resettlement may need to be permanent. Hence the homeland becomes unsuitable for living. Many people who are dependent on nature for their livelihood, such as farmers will be hard hit by natural disasters, such as drought. So these people are forced to leave their country in search of better habitation.

• Non-recognition of long-term disasters as a reason for persecution. A refugee is given legal sanctity only if there is a lack of support by the local government (or governments) is denied on the basis of race, religion, membership of a particular social group, or political leaning.

 Countries without asylum laws

There are many countries in the world such as Egypt, Jordan, Malaysia, India, etc that host a large number of refugees without being a party to the 1951 Convention and 1967 protocol. In countries which don’t have asylum laws, the refugee status determination is done by the officials in the office of United Nation High Commissioner For Refugees. The refugee status conducted by the State is similar to that of the refugee status conducted by UNHCR. 

International Treaty and Custom Laws related to refugees

There are several international treaties that protect and recognise the status of Refugee Laws. Countries that are part of the Convention of 1951 have legislated their own asylum and refugee laws in parlance with the 1951 Convention. Some of  the regional and international instruments related to Refugee laws are:

• 1951 Convention relating to the Status of Refugees
• 1967 Optional Protocol relating to the Status of Refugees
• Universal Declaration of Human Rights (Art. 14)
• American Declaration on the Rights and Duties of Man (Art. 27)
• American Convention on Human Rights (Art. 22)
• Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama (Cartagena Declaration)
• African [Banjul] Charter on Human and Peoples’ Rights (Art. 12)
• OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa
• Arab Charter on Human Rights (Art. 28)
• Cairo Declaration on Human Rights in Islam (Art. 12)
• European Convention on Human Rights (Arts. 2, 3, and 5)
• Council Regulation EC No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national
• Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Art. 3)
• African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa
• Convention on the Rights of the Child (Art. 22) 

What are various policies on refugees around the world

There are many countries around the world that have framed many policies and decisions to improve the status of refugees. Some of the common policies are:

1. Legislate a national law for refugees in accordance with the 1951 Convention and 1967 protocol. 
2. Cooperate with the international organisation, ie UNHCR to conduct the refugee status determination and protect the refugees. Many countries have strongly stood beside UNHCR to combat the social evil of trafficking of refugees, illegal detention and other human rights violations. 
3. Many countries with their humanitarian approach have offered to train refugees for jobs and offer skill development programs to make them self-sufficient in nature. 
4. Many countries have also framed policies to offer citizenship to refugees after they live for a prescribed time in the country and treat them as a citizen of the country who are entitled to all rights and privileges that a normal citizen in that country could avail.
5. Many countries have created livelihood to refugees who have good entrepreneurial skills by setting up a business, also promoted farming, and provided employment to contribute to the development of the nation. Recognition of Refugee camps as special economic zones would allow entrepreneurs to promote broader immigration reforms. The tax concessions given by the government to investors investing in special economic zones will encourage many entrepreneurs to create employment and bring welfare reforms to refugees.

Are the current rights and obligations enough to protect refugees

1951 Convention though being a single, unified, and compiled document of refugee law still poses many limitations. Some of the limitations are:

1. The definition of the term “persecution” is very limited and doesn’t recognise other forms or reasons for persecution. This is one of the main reasons why many individuals who flee to another country other than reasons enlisted in the definition don’t get a legal sanctity of refugee status.  For example, it does not recognise the people who left the country due to economic and social reasons. A country can have high poverty rates and if the state does not make reforms to alleviate poverty it would force the people to move to another country in search of a better economic situation. Ignorance of these reasons under the definition of the term ‘persecution’ makes it less effective.  This limitation in the refugee law is one of the major reasons for the nonrecognition of climate refugees as a refugee under Article 1 of the 1951 Convention.
2. 1951 Convention though being the most celebrated and widely recognised international document, which recognises the status and rights of a refugee cannot legally bind the countries which are not a signatory to follow the principles highlighted in the convention.
3. While determining the status of refugee, the definition of refugee and the well-founded fear is not assessed in light of the humanitarian law which is one of the main reasons why many applicants for refugee status, who fled the country due to gross human rights violation, don’t get legal recognition. For eg, All citizens are guaranteed the right to a healthy environment. A violation of this particular human right due to climatic changes that remains unresolved would have influenced the people to migrate to other countries. These climate refugees are not legally recognised as refugees under Article 1 of the 1951 Convention.
4. Undue delay and complex procedures in the refugee status recognition process is also another limitation to refugee law.
5. Unfortunately, the legal recognition as a refugee wide certificate given by UNHCR is not adequate to protect the refugees in that particular country who are subject to denial of basic amenities and other gross human rights violations.

Recommendations

• Speedy assessment of refugee status application

Undue delays can cause undue hardship to the refugees. The countries should expedite the process to assess the application of refugee status. During the process, the applicants should be provided with language training and other civic amenities.

• An assessment of employment availability should be done 

It is essential to assess the country in light of job availability which matches the skill of refugees before dispersing them into the country. For eg, there is no meaning in sending a refugee who is a farmer to urban parts of the country.

• Refugees should be treated in accordance with their background

The need for support of one refugee varies from that of another. So the government should first judge the needs of the refugee. Appropriate skill development should be given to refugees to lead a self-sufficient life.

• Mental and physical issues should be of prime consideration 

Physically harmed refugees needed to be treated first irrespective of the migration status on the humanitarian grounds. Refugees would have been subject to many hardships and separation which would have affected their mental health. Due importance should be given to treat those refugees who suffer from post-traumatic stress disorder to ensure good mental and physical health.

• Amendment in the definition of the term refugee in parlance with human rights law

The scope of the definition of the term ‘Refugee’ and ‘persecution’ under the 1951 Convention should be widened to accommodate other reasons for fleeing the country such as social, cultural, and other economic problems. The definition of the term refugee should be integrated into the international laws relating to human rights for better recognition and protection of refugees.

Conclusion 

A refugee needs as much protection as a normal citizen needs. It is important that all countries realise the need to protect the existing people from well-founded fear to reduce the increasing count of refugees and also realise the importance to protect refugees from other countries. The country should extend its full support to UNHCR to combat the problems of trafficking of refugees, implement and follow the principles of Non-refoulement of refugees in their national laws. 1951 Convention might not be legally binding on the countries yet all the countries have the obligation to protect people of other countries who had come to seek shelter in their country. The term refugee in 1951 and the term refugee in 2020 has experienced a significant change which makes it essential for the term refugee to be amended to fit all cultural, economic, environmental reasons to flee the home country. It is quite essential that all countries should join hands with UNHCR to protect, shelter the refugees and solve the heating international issue of refugees.

References

• https://www.roads-to-refuge.com.au/whois/whois_law.html
• https://ijrcenter.org/refugee-law/
• https://blogs.lse.ac.uk/humanrights/2016/02/08/international-refugee-law-definitions-and-limitations-of-the-1951-refugee-convention/
• www.unhcr.org

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