Refugee law is the branch of international law which deals with the rights and duties States have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law. The discussion forms part of a larger debate on the fragmentation of international law. While some scholars conceive each branch as a self-contained regime distinct from other branches, others regard the three branches as forming a larger normative system that seeks to protect the rights of all human beings at all time. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation (IHL) or to certain groups of people including refugees (refugee law), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Geneva Convention III).
Who Is a Refugee?
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 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. Applying this definition, internally displaced persons (IDPs) – including individuals fleeing natural disasters and generalized violence, stateless individuals not outside their country of habitual residence or not facing persecution, and individuals who have crossed an international border fleeing generalized violence are not considered refugees under either the 1951 Convention or the 1967 Optional Protocol.
Countries in the Americas and Africa experiencing large-scale displacement as the result of armed conflicts found that the 1951 Convention definition did not go far enough in addressing the protection needs of their populations. Consequently, both Article 3 of the Cartagena Declaration and Article 1(2) of the 1969 OAU Convention extend refugee status to an individual who “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.” OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa, art. 1(2); accord Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico & Panama, art. 3. The African Union is unique in having a convention that specifically addresses the protection needs of IDPs. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. Finally, the United Nations High Commissioner for Refugees (UNHCR) provides protection to IDPs and stateless individuals in addition to 1951 Convention refugees.
The problems of mass exodus of refugees and their influx into a nation have put international refugee law at a crossroads time and again. Questions such as whether the principle of non-refoulement is applicable to situations of mass exodus have also been under consideration of the international community for over a long period of time – in an effort spasmodically pursued by state behaviour and consistently contentious with the global refugee program administrator, the UNHCR. Further, the supposed territoriality application of this principle and the competing considerations of national security and humanitarianism have clouded this field of international law with sufficient doubts. This paper seeks to evaluate the existing literature and the development of the law, as evidenced by contemporary state practice on the subject and seeks to make an argument for the pre-eminence of the principle of non-refoulement even in cases where states have attempted to put forth exceptions to the rule by citing security reasons and instances of mass exodus.
Under Article 33 of the Convention Relating to the Status of Refugees, 1951, the Contracting States are prohibited from returning a refugee in any manner whatsoever to the frontiers of territories where he would be subjected to persecution. This is known as the principle of non-refoulement, with the state so sending back referred to by the French word refouler. However, certain nations have issued declarations under various circumstances that ‘asylum-seekers’, especially those who come through boats, can be interdicted and ordered to leave the territorial waters of such nations, even if it meant forcibly sending them back. The question whether such mass repatriation of ‘asylum-seekers’ amounts to a violation of the principle of non-refoulement has been answered both in the affirmative and negative by the domestic courts of these nations and by the international community.
The fact that the term ‘asylum-seeker(s)’ is being put forth for the purposes of this argument is creating fundamental nomenclature problems. The distinction that states strike here is that one who lawfully pleads entry is an asylum-seeker while one, by whatever means, has somehow found his presence in the territory of another state becomes a refugee. However, this distinction is artificial and rather perverse, for a person illegally entering might have to show greater than the one standing at the borders that he does not attract any of the exception clauses in Article 33(2). It appears that the purpose of conferring this uneasy legal status to a person as an ‘asylum-seeker’, not being a ‘refugee’ under the Convention, but one still satisfying the substantive requirements thereunder, enables states to evade the exacting pressures of the Refugee Convention. This is rightly so because if these persons were to be termed ‘refugees’, it would amount to doing two things with legal repercussions: firstly, the state so saying might be forced to agree that the persons in question are indeed refugees under international law; secondly, there is the problem of automatic application of the caveat in Article 33 that prohibits, in any manner whatsoever, the return of these persons and thus rendering, even the interdiction of these people for the purpose of forcing them to leave by coercion, illegal. We argue that regardless of this distinction between refugees and asylum-seekers, if at all one exists, the prohibition in Article 33 is wide enough to cover all those who are on the verge of a border or have entered a border, subject to the only condition that the person so entering fears one or more of the kinds of persecutions that the Convention lists.
The preceding paragraph does not, however, seek to cast doubts on the prevalence of the term ‘asylum-seekers’ in international law before the 1951 Convention. In fact, the law on seeking and providing what has been referred to as ‘diplomatic asylum’ was considered by the ICJ in the Asylum case, in 1950, before the Convention came into being. The term ‘asylum’ can be categorically traced back to the UDHR, which provides, in very generic terms, that a person fleeing persecution has the right to seek and to enjoy asylum in other countries. Introspection shows that this provision was neither intended at that time to create legal consequences for states, nor was it envisaged then that an exclusive convention on refugees under the UN aegis would be born. Thus, the right to asylum was used in a normative sense and on somewhat comparable lines to what is today the legal doctrine of non-refoulement. This was potentially a nascent move towards according legal status to the rule which was suddenly heightened by the fact that the Refugee Convention did not use the word ‘asylum-seeker’ but consistently adhered the ‘refugee’ terminology. It is doubtful if it was predicted then that the term refugee – naturally implied to include and subsume within it all its nomenclatural synonyms and variations, a fact well evidenced by the wide definition in Article 1(A) – would create problems like the ones we are witnessing now, a distinction between a refugee and an asylum-seeker.
However, there has come to be a view that the principle of non-refoulement embodied in Article 33 of the Refugee Convention is applicable only to those who have gained admission to the territory, even if illegally, but not to those who seek asylum at the frontiers. Apart from the theoretical distinction that we seek to thwart between refugees and asylum-seekers, there has been this self-legitimized follow-up action that states have taken on the basis of this distinction. It is put forth by these states that since asylum-seekers have not entered borders, including territorial waters, the states would have a right to refoul them outside their borders since the Convention is territorially operative and cannot apply to or control state parties’ activities outside their borders. Supporters of this view resort to the travaux préparatoires of the Convention where, they argue evidence can be found that the participants in the Conference took pains to record the same. However, the deliberations show the contrary. Some states even went further to stress that Article 33 did not cover cases of mass migration. Judge Edwards, in Haitian Refugee Center v. Gracey, observed “that ‘expulsion’ would refer to a ‘refugee already admitted into a country’ and that ‘return’ would refer to a ‘refugee already within the territory but not yet resident there’.” Thus, it is argued that the Convention was not intended to govern parties’ conduct outside their national borders. This view has found recognition and approval within the academic community as being correct. These scholars argue that even the UNHCR has implicitly acknowledged that the Convention has no extraterritorial application, though the validity of this argument is yet to be tested.
It is also argued that state practice in this area has been consistent with this provision. Commentators point out instances such as these, in Sale v. Haitian Centers Council, Inc., where the US Supreme Court upheld the order of President Bush declaring the immediate return of all passengers in the Haitian boats seeking asylum to Port-Au-Prince without any screening as valid on the ground that the Refugee Convention does not apply outside the territory of a state party. Various other states in applying the principle of non-refoulement with regard to return of asylum-seekers at the frontiers have followed this precedent. Thus, it is believed by these commentators that a categorical refusal to allow disembarkation cannot be equated with breach of the principle of non-refoulement, even though it may result in serious consequences for asylum-seekers. Even if such a refusal amounted to a breach, it has been observed that the silence maintained by the international community during the mass repatriations concerning the Rwandan and Kosovo refugees, suggests that the principle can be violated with no adverse consequences.
Further, there is no doubting that terrorists are far more likely to pursue illegal migration channels to infiltrate a state than to use asylum procedures as, according to normal procedure, asylum-seekers are subject to rigorous identity and security checks, document verification, administrative scrutiny, suspicion of credibility, and, in some states, mandatory administrative detention. The nations which support this theory resort to Security Council Resolution 1373 (2001) which has declared that all member countries shall ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts. Also, under customary international law, in order to safeguard the population (i.e., of the state in which asylum is sought), as in the case of mass influx of persons, refugees may be rejected at the frontier, more so, when there is a possibility of entry of terrorists in the guise of asylum-seekers. The General Assembly Declaration on Territorial Asylum provides that exception may be made to the principle of non-refoulement for national security reasons in order to safeguard the population, as in the case of a mass influx of persons.
However, we submit that the acceptance of this principle as a rule of international law would undermine the very existence of refugee law. The Security Council and the General Assembly Resolutions in this context cannot be seen as clarifying or substantially qualifying what is in quite unequivocal terms in the Convention. The binding nature of Security Council Resolutions under Article 25 of the Charter read with Article 103, as one even above any other treaty obligation – to the extent of modification of those obligations – has not been that easy a conclusion and the scholarly community has quite consistently cautioned that the Security Council is incompetent to alter or modify treaty obligations. The position of law should be assumed to be expressly clarified by the General Assembly in a later resolution, where the Assembly, while condemning terrorist activities, “Stressed the importance of full compliance by States with their obligations under the provisions of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, including the principle of non-refoulement of refugees to places where their life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group or political opinion, and affirming that the present Declaration does not affect the protection afforded under the terms of the Convention and Protocol and other provisions of international law.”
Rightly, the UNHCR has declared that the principle of non-refoulement applies to asylum-seekers both at the borders and within the territory. In fact, in the light of state practice since 1951, a strong case can be made that non-refoulement now includes non-rejection at the frontiers, and further that non-refoulement of refugees has crystallized as a rule of customary international law binding on all States.
With respect to mass influx, it has very weakly and very rarely been asserted that the non-refoulement rule ceases to apply in such situations. On the contrary the Executive Committee of the UNHCR has expressly stated that in such cases “the fundamental principle of non-refoulement … must be scrupulously observed.” It has also reaffirmed the fundamental importance of the observance of the principle of non-refoulement at the border and within the territory of a state, of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.
In the situations of large-scale influx, the so-called asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection. However, during a mass exodus, it may not be possible to carry out individual screening or RSD procedures by the High Commission. In such circumstances, particularly when civilians are fleeing for similar reasons, it may be appropriate to declare ‘group’ determination of refugee status, whereby each civilian is considered a refugee, prima facie – in other words, in the absence of evidence to the contrary.
Regardless of any other consideration, if a person is fleeing persecution, armed conflict, threats to life or abject poverty, that person is entitled to minimum human rights and minimum standards of treatment. Even in situations of mass influx, where other priorities like national security may prevail, the emphasis on individual procedural rights may be replaced by a group or categories approach.
It also appears that the principle of non-refoulement cannot be violated on the ground that persecution has not emanated from the state. Persecution may also emanate from entities for which no link with the state can be established and which the state is unable to control. Persecution that does not involve state complicity is still, nonetheless, persecution. Perhaps, an analogous phenomenon in the law can be seen here as useful to construct this argument. When states traditionally do bear international responsibility for the wrongful acts committed by private actors on its territory, with certain qualifications though, it can be seen that when a state is unable to prevent violence against its own people, it has failed in its paramount duty to protect the life and property of its citizens, thus subjecting them to persecution indirectly. The normative underpinnings behind the rule against refoulement have been taken to the level of arguing that a State, which returns a refugee, causes persecution akin to an accomplice of the persecutor. Furthermore, the UNHCR believes that non-refoulement has gained customary status, and even ius cogens.
It is true that under Article 33(2) of the Refugee Convention, if there are reasonable grounds for regarding a refugee as a danger to the national security of the country of refuge, the protection against refoulement under Article 33 (1) cannot be availed of. This rule needs to be interpreted restrictively and the assessment of the danger needs to be individual and ex futuro. Thus, refoulement may be done only if a provable danger to the national security or community of the country of refuge exists, which is possible only when refugees are given an opportunity to establish their refugee status. International law, in keeping with its high human rights standards and the object of the Convention, should be assumed to have relinquished this discretion to states in the strictest manner. Indeed, while this being apart, it has even been suggested that the substantive issue relating to what is actually ‘persecution’, should be considered from a perspective that would underline the subjective nature of the issue, providing for refugee status on prima facie proof. If an issue, as important as proof of persecution itself could take a beneficial meaning, it needs to be asked why the technicalities of Article 33 should not give way to the object and purpose of the Convention. A fair, efficient and expeditious procedure for the determination of refugee status even in situations involving large numbers is definitely obligatory under international law.
As might be seen, this paper seeks no modification or rewriting of the international refugee law regime. It rather carves an argument in favour of removing the practices that have been plaguing the issue by trying to state what would be the right interpretation of the Convention. The paper sees a merely corrective role for states and the UNHCR through an effective clarificatory process.
Exceptions: Exclusion and Cessation Clauses
The 1951 Convention places a number of restrictions on eligibility for refugee status. Article 1(D) excludes individuals who, at the time of the 1951 Convention, were already receiving protection or assistance from another UN organ or agency. Article 1(D) largely applied to Koreans receiving aid from the United Nations Korean Reconstruction Agency (UNKRA) and Palestinians receiving aid from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and continues to apply to the latter. UNHCR, Handbook on Procedures for Determining Refugee Status under the 1951 Convention & the 1967 Protocol relating to the Status of Refugees, para. 142. Although Palestinians living in areas where UNRWA operates are eligible for refugee status under the 1951 Convention. Id. at para. 143.
Additionally, Article 1(F) excludes individuals:
with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Individuals who voluntarily avail themselves of the protection of their country of nationality or habitual residence or individuals who have received protection in a third country are also not considered refugees. See 1951 Convention relating to the Status of Refugees, art. 1(C).
What Rights Do Refugees Have?
Refugee law and international human rights law are closely intertwined; refugees are fleeing governments that are either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the context of an armed conflict, refugee law also intersects with international humanitarian law.
The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees, art. 33(1). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 22(8) of the American Convention on Human Rights and Article 3 of the Convention against Torture, the latter of which was further interpreted in the Committee against Torture‘s General Comment no. 4. [IJRC]
Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a prohibition against refoulement. See R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t EWHC 2937 (Admin.) (U.K.); ECtHR, Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January 2011. The principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. See, e.g., African [Banjul] Charter on Human and Peoples’ Rights, art. 12(5).
There are two important restrictions to this principle. Persons who otherwise qualify as refugees may not claim protection under this principle where there are “reasonable grounds” for regarding the refugee as a danger to the national security of the host country or where the refugee, having been convicted of a particularly serious crime, constitutes a danger to the host community. 1951 Convention, art. 33(2).
FREEDOM OF MOVEMENT
At the regional level, the rights to seek asylum and freedom of movement can be found within the text of the same article. See African [Banjul] Charter on Human and Peoples’ Rights, art. 12(1) and (3); American Convention on Human Rights, art. 22. The rights are closely related, since the inability to return to one’s country is the basis of an asylum claim while the ability to leave one’s country is a prerequisite for claiming refugee status under the 1951 Convention.
Freedom of movement, however, is also a key right for refugees within their host country. See, e.g., International Covenant on Civil and Political Rights, art. 12. Article 26 of the 1951 Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Meanwhile, Article 28 obliges States parties to issue refugees travel documents permitting them to travel outside the State “unless compelling reasons of national security or public order otherwise require.”
Freedom of movement is an especially important issue with regard to protracted refugee situations in countries with limited national resources and/or limited legal frameworks for protecting refugees who nonetheless host large refugee populations. In such countries, refugee warehousing – in which refugees are confined to refugee camps, thereby restricting their access to employment and education – is commonly practiced. U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009 (2009). Countries such as Kenya and Ethiopia specify in their national laws that the movement of refugees throughout the country may be restricted and that refugees may be limited to living in designated areas, namely refugee camps. National Refugee Proclamation, No. 409/2004, art. 21(2) (Eth.); Refugees Act (2014) Cap. 173 § 12(3) (Kenya).
RIGHT TO LIBERTY AND SECURITY OF THE PERSON
The right to liberty and security of the person is important in the context of how asylum seekers are treated within the intended country of refuge. The national laws of several countries provide for the detention of asylum seekers at one point or another during the adjudication of their claims. See, e.g., 8 CFR § 235.3(c) (U.S.); Refugees Act (2014) Cap. 173 § 12(3) (Kenya).
The detention of asylum seekers is a contentious issue because of the conditions found in the detention facilities of several countries. This is particularly an issue in Greece, a country overwhelmed by the number of asylum seekers it receives, many of whom use Greece as a port of entry as they try to access other European countries. In order to clarify which State has responsibility for a particular asylum applicant, the Council of the European Union issued 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 (commonly known as the Dublin Regulation).
Under the Dublin Regulation, the State through which the third country national first entered Europe is generally considered the State responsible for adjudicating that national’s asylum claim. See Dublin Regulation, art. 10(1). As a result, many of these asylum seekers are returned to Greece to have their claims adjudicated. Human rights organizations including Amnesty International have reported on unsanitary and over-crowded conditions in Greek detention centers. Amnesty International, Annual Report 2012 (2012), 157. Additionally, asylum seekers have claimed that they did not have access to a UNHCR representative or information about how to apply for asylum while in detention. Id. The European Court of Human Rights (ECtHR) has held in a number of cases that the conditions in the Greek detention centers violate individuals’ rights to humane treatment and dignity under the European Convention on Human Rights. See, e.g., ECtHR, M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January 2011.
RIGHT TO FAMILY LIFE
The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the State.” See, e.g., International Covenant on Civil and Political Rights, art. 23(1). In respect of this right, a number of countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her. See 8 U.S.C. § 1158(b)(3)(A) (U.S.); Immigration Rules, 2012, S.I. 2012/11, art. 339Q(iii) (U.K.); National Refugee Proclamation, No. 409/2004, art. 12 (Eth.); Refugees Act (2014) Cap. 173 § 15 (Kenya). However, should that individual’s refugee status be terminated, the status of dependent relatives will also be terminated. National Refugee Proclamation, No. 409/2004, art. 6(1) (Eth.); Refugees Act (2014) Cap. 173 § 20(1) (Kenya). Consequently, these domestic laws do not preclude dependent relatives from making their own asylum claims. National Refugee Proclamation, No. 409/2004, art. 12(5) (Eth.); Refugees Act (2014) Cap. 173 § 15(4) (Kenya).
The definition of a dependent relative, however, varies by the cultural notions of family prevalent in the State party. In the U.K., dependents are defined as the “spouse, civil partner, unmarried or same-sex partner, or minor child accompanying [the applicant]” while in Kenya, dependent relatives include the brother or sister of an applicant under the age of eighteen, “or any dependent grandparent, parent, grandchild or ward living in the same household as the refugee.” Immigration Rules, 2012, S.I. 2012/11, art. 349 (U.K.); Refugees Act (2014) Cap. 173 § 2 (Kenya).
The 1951 Convention also protects other rights of refugees, such as the rights to education, access to justice, employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the same treatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals. 1951 Convention, art. 16 (refugees are to be granted equal access to the courts), art. 17 (refugees are to be afforded the same access to wage-earning employment as foreign nationals), art. 13 (refugees are to be afforded the same rights to moveable and immoveable property as foreign nationals).
Despite these rights being protected in the 1951 Convention and under human rights treaties, refugees in various countries do not enjoy full or equal legal protection of fundamental privileges. Ethiopia, for example, made reservations to Article 22 (public education) and Article 17 (wage-earning employment), treating these articles as recommendations rather than obligations. U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009: Ethiopia (2009). Although not a party to the 1951 Convention, Lebanon is host to a large population of refugees, predominately Palestinians. Restrictive labor and property laws in Lebanon prevent Palestinians from practicing professions requiring syndicate membership, such as law, medicine, and engineering, and from registering property. Human Rights Watch, World Report 2014: Lebanon (2014).
ENFORCEMENT: CLAIMING ASYLUM
NB: The countries profiled here were chosen because they have historically received a large number of asylum applications and/or played host to large refugee populations.
The adjudication of asylum claims is reserved to individual States. Although some States, namely those that comprise the Council of the European Union, have made an effort to adopt a uniform asylum system, international and regional bodies lack the jurisdiction to adjudicate individual asylum claims. See Dublin Regulation; 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 (commonly known as the Qualification Directive). International and regional bodies do, however, adjudicate claims asserting violations of the human rights of refugees and asylum seekers.
Despite differences across, and sometimes within, States, there are a number of commonalities between the asylum procedures of States who have national frameworks for granting refugee status. The following is a general and simplified explanation of these procedures.
Interpretation of Key Terms
In order to understand how these procedures operate it is necessary to first identify how certain key terms in the 1951 Convention are defined within the domestic legal systems of particular States.
- Refugee – States parties to the 1951 Convention and/or the 1967 Optional Protocol have incorporated the Convention’s definition of a refugee into their domestic law. See, 8 U.S.C. § 1101(a)(42) (U.S.); Immigration Rules, 2012, S.I. 2012/11, art. 334 (U.K.); CESDA L711-1 (Fr.) (French); The Immigration and Refugee Protection Act, S.C. 2001, ch. 27, art. 96 (Can.). States that are also party to the Cartagena Declaration or the 1969 OAU Convention have also incorporated those instruments’ broader definition of a refugee, recognizing individuals fleeing generalized violence and other breakdowns of public order. See, e.g., Decree No. 3301, May 6, 1992 (Ecuador) (Spanish); Refugees Act (2014) Cap. 173 § 3 (Kenya).
- Asylum seeker – person within a State party who has applied for recognition as a refugee. If the asylum seeker is determined to meet the definition of a refugee they are granted asylum.
- Well-founded fear – individual States have interpreted the 1951 Convention’s requirement of a well-founded fear of persecution to require asylum seekers to show that there is a reasonable possibility that they will suffer persecution if returned to their country of nationality or habitual residence. See, e.g., Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). This is considered to be both an objective and subjective standard. Although well-founded fear refers to a future threat of persecution, individuals who have faced persecution in the past are presumed to have a well-founded fear. See, e.g., Immigration Rules, 2012, S.I. 2012/11, art. 339K (U.K.).
- Persecution – persecution is not defined in the 1951 Convention or the 1967 Optional Protocol. In an attempt to provide guidance on what constitutes persecution, the Council of the European Union included a non-exhaustive list in the Qualification Directive of acts that could be considered persecution such as:
acts of physical or mental violence, including acts of sexual violence; legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); acts of a gender-specific or child-specific nature.
Qualification Directive, art. 9(2). The persecution at issue also does not need to have been committed by a State actor; persecutory acts committed by non-state actors may qualify under the 1951 Convention where the State is unwilling or unable to protect the individual claiming refugee status. See, e.g., id. at art. 6.
- On account of – there must be a causal nexus between one of the five grounds and the persecutory act. In practice, this means that applicants must show that one of the protected grounds was or will be at least one central reason for the persecution. See, e.g., 8 U.S.C. § 1158(b)(1)(B)(i) (U.S.).
- Race, religion, nationality – the asylum applicant need not actually possess the racial, religious, or national characteristic in question provided that characteristic was attributed to the asylum seeker by the persecutor and is the reason for the persecution See, e.g., Qualification Directive, art. 10(2).
- Political opinion – like the above three grounds, political opinion may be imputed to the asylum seeker. There is some debate within the U.S. as to whether neutrality may qualify as a political opinion for the purposes of obtaining asylum. Compare Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (no persecution based on political opinion where refusal to join work stoppage resulted in threats and violence from militants because refusal was motivated by desire to earn wages) with Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1284-5 (9th Cir. 1985) (persecution based on political opinion where former military member refused to join guerrillas because he wished to remain neutral).
- Membership in a particular social group – there is still a lack of consensus as to what constitutes a particular social group and whether classes of persons not included in the 1951 Convention who nonetheless face persecution, such as women and homosexuals, fall within this category. (See Selected Case Law, below) The Council of the European Union has stated that persons may be considered to constitute a particular social group when they share a common immutable characteristic, that is, something innate to their being or so fundamental to their being that they cannot be expected to change it, and have a distinct identity within their country of nationality or habitual residence because they are perceived as being different by that society. Qualification Directive, art. 10(1)(d) (applying standard articulated in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (U.S.)).
- Particularly serious crime – the definition of a particularly serious crime varies by country. The UNHCR considers a particularly serious crime to be a capital crime or a very grave punishable act. The UNHCR recommends balancing the severity of the crime against the severity of the persecution feared but this balancing test has not been widely adopted. See Ali v. Achim, 468 F.3d 462 (7th Cir. 2006) (rejecting UNHCR balancing test). In the U.S., 8 U.S.C. § 1158(b)(2)(B)(i), provides that an aggravated felony shall constitute a particularly serious crime. Under the statute, aggravated felonies may include felonies for which the potential sentence is imprisonment for one year or more. (For withholding of removal, the potential sentence must be for at least five years.)
- War crimes, Crimes against Humanity – States apply the definition provided in international humanitarian law, as articulated in Articles 7 and 8 of the Rome Statute of the International Criminal Court. See A.B. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform  IEHC 198 (H. Ct.) (Ir.).
National Procedures for Claiming Asylum
Typically, refugee status determinations or asylum adjudications are conducted by an official from a designated government department or agency. These officials should have a solid knowledge of refugee law. In most cases, the official will interview the asylum seeker to evaluate his or her evidence and credibility. The burden is on the asylum seeker to prove that he or she meets the definition of a refugee and asylum seekers are encouraged to supply as much supporting evidence as possible. Supporting evidence may take the form of country reports, NGO reports, news articles, affidavits, or the in-person testimony of witnesses.
In accordance with Article 31 of the 1951 Convention, States parties provide in their domestic law that an applicant’s irregular entry (i.e., without an entry visa or other documentation) will not have a negative effect on the asylum seeker’s application. See, e.g., Refugees Act (2014) Cap. 173 § 11(3) (Kenya). Some States, however, do place time restraints on how many days after entry into their country an asylum seeker may make an application. Compare 8 U.S.C. § 1158(a)(2)(B) (U.S.) (imposing a one-year filing deadline on asylum applications, although there are some limited exceptions for extraordinary or changed circumstances) with National Refugee Proclamation, No. 409/2004, art. 13 (Eth.) (stating that asylum applicants shall apply within fifteen days of entry into Ethiopia). In addition to making a claim at the border, individuals in deportation proceedings may also raise an asylum claim, provided their claim is timely.
If the official finds that the asylum seeker has a well-founded fear of persecution based on one of the five grounds, he or she can grant the applicant asylum. Individuals granted asylum receive a residence permit for themselves as well as one for any dependent relatives. See, e.g., The Immigration and Refugee Protection Act, S.C. 2001, ch. 27, art. 95(1)(a) (Can.); 8 U.S.C. § 1158(b)(3)(A) (U.S.). States provide that where the Government denies an asylum application, the asylum seeker is to receive an explanation of the reasons for the denial. See, e.g., Refugees Act (2014) Cap. 173 § 11(6) (Kenya). Asylum seekers have a right to appeal their negative decision. Generally, an applicant may not be removed unless they have exhausted all of their available remedies. See CESEDA, L731-3 (Fr.); but see, Human Rights Watch, France: Amend Immigration Bill to Protect Asylum Seekers (noting that under French law appeal does not suspend expulsion for those placed in the fast-track procedure).
Individuals who are ineligible for asylum may nonetheless be eligible for more limited forms of protection. These include protection under Article 3 of the Convention against Torture, which forbids States parties from extraditing or returning an individual to a country where they risk being tortured or subjected to cruel, inhuman, or degrading treatment or punishment. States also grant complementary forms of protection, such as withholding of removal, subsidiary protection, and Temporary Protected Status to individuals who do not meet the definition of a refugee but whose life or freedom would be in danger if returned to their country of nationality or country of habitual residence. 8 U.S.C. § 1254, 1231(b)(3) (U.S.); C.E.S.D.A. L712-1 (Fr.).
Refugee Status Determinations by the UNHCR
There are a number of States who host large refugee populations but who are either not a party to the 1951 Convention and 1967 Optional Protocol or who do not have laws or policies in place to address asylum claims. These States include a large number of countries in the Middle East and Asia with significant refugee populations, including Egypt, Jordan, India, Malaysia, Lebanon, and Pakistan. See UNHCR, States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. In such cases, refugee status determinations are carried out by field offices of the United Nations High Commissioner for Refugees (UNHCR).
The refugee status determination (RSD) conducted by the UNHCR is similar to asylum adjudications conducted by States. After registering with the local UNHCR office, asylum seekers meet with an Eligibility Officer who examines their application and supporting documentation. All asylum seekers have the right to an individual in-person interview and may be accompanied by a legal representative. UNHCR, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate 4.3.1-3 (2003). Asylum seekers are permitted to bring witnesses, but UNHCR policy is that the testimony of witnesses should not be given in the presence of the applicant and should never be given in the presence of other witnesses or third parties. Id. at 4.3.9. All applicants are informed in writing of the Eligibility Officer’s decision. Id. at 6.1. Where the eligibility officer has decided not to award refugee status, the applicant is entitled to an explanation of the negative determination. Id. Applicants who have not been granted refugee status are entitled to an appeal. Id. at 7.1.1.
All individuals granted refugee status as well as derivative relatives are issued a UNHCR Refugee Certificate which stipulates that the holder is a refugee and is therefore entitled to protection, including protection from refoulement. Id. at 8.1. Unfortunately, in practice, issuance of a Refugee Certificate does not always guarantee an individual’s ability to work or protect them from being detained in their host country. See UNHCR, Global Focus: Malaysia 2016 Operational Context.
UNHCR normally determines refugee status on an individual basis; however, the agency will afford prima facie refugee status to groups in cases where a large group of individuals has been displaced and the need for protection is especially urgent. UNHCR, Resettlement Handbook, ch. 3, at 77 (2011). A recent example of this was the UNHCR’s 2007 decision to give prima facie refugee status to asylum seekers from southern and central Iraq. Id.
In addition to conducting RSDs and providing assistance to refugees and other persons of concern, UNHCR facilitates resettlement to third countries where voluntary repatriation or local integration is not feasible.
SELECTED CASE LAW
The following cases concern some of the most contentious issues in refugee law today.
Membership in a Particular Social Group
- In Matter of Kasinga, 21 I&N 357 (BIA 1996), the U.S. Board of Immigration Appeals (BIA) held that young women who were members of the Tchamba-Kunsuntu Tribe of northern Togo who had not been subjected to female genital mutilation, as practiced by that tribe, and who opposed the practice constituted a particular social group.
- The criteria for identifying a particular social group in the U.S., however, are not clear. In Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), the BIA held that members of a taxi-driver cooperative in El Salvador did not constitute a social group because their membership was not immutable. Meanwhile in Matter of C-A-, 23 I&N 951 (BIA 2006) the BIA held that non-criminal, uncompensated informants in Colombia did not constitute a social group because they did not share a common, immutable characteristic and because they were not a visible group, as the very nature of their work required them to work in secret. In Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), a case concerning a withholding of removal claim filed by an El Salvadoran national, the U.S. Court of Appeals for the Seventh Circuit not only rejected the social visibility requirement formulated by the BIA, it also criticized the BIA for inconsistently applying its own criteria, pointing to the fact that the BIA itself did not always require social visibility when evaluating whether individuals could be said to be members of a particular social group. Particular social group has been defined since as “a group of persons all of whom share a common, immutable characteristic.” See Cordoba v. Holder, 726 F.3d 1106, 1114 (9th Cir. 2013) (quoting Matter of Acosta, 19 I&N 211, 233 (BIA 1985)).
- In the joined cases, Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.),  (H.L.) (appeal taken from England) (U.K.), the U.K. House of Lords held that women in Pakistan constituted a social group, granting asylum to two women from Pakistan who had fled domestic violence. Cf., Matter of R-A-, 22 I&N 906 (BIA 1999) (denying asylum to woman claiming membership in social group identified as “Guatemalan women who have been intimately involved with Guatemalan male companions, who believe women are to live under male domination”). According to the House of Lords, whether such a broad definition of a social group qualifies under the Convention will depend on evidence of how that group is treated in the country of nationality or habitual residence at issue. Id. (citing In Re G.J.  INLR 387 (New Zealand Refugee Status Appeals Authority), a New Zealand decision granting asylum on the basis of membership in a particular social group to a homosexual from Iran.)
- In A and Another v. Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 (Austl.), the High Court of Australia rejected the asylum claim of Chinese nationals who claimed to have a well-founded fear of persecution because they sought to have a second child despite China’s one-child only policy. The asylum applicants claimed fear of being subjected to forced sterilization and argued they were members of a particular social group that consisted of “those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilized.” The Court rejected this formulation as too circular because it was not independent of the persecution feared. By contrast, the U.S. Congress has recognized forced sterilization as a per se ground of persecution in its legislation. See 8 U.S.C. § 1101(a)(42).
Non-refoulement and Countries of Transit
- In Sale v. Haitian Ctr. Council, Inc., 509 U.S. 155 (1993),the U.S. Supreme Court held that the U.S. was not in violation of its non-refoulement obligation when it returned Haitians interdicted on the high seas because the Haitians were not within U.S. territory and therefore the non-refoulement obligation did not apply. The Inter-American Commission on Human Rights (IACHR) rejected this reasoning in IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights (United States), 13 March 1997. The IACHR held that the U.S. had violated the petitioners’ right to seek asylum as well as their right to life, liberty, and security of the person when it summarily returned interdicted Haitians – many of whom were subsequently arrested by Haitian authorities – without providing them with a meaningful opportunity to have their claims adjudicated. The IACHR also held that the U.S. had violated their right to freedom from discrimination, noting that a much more favorable policy was applied to Cubans and Nicaraguans.
- In Abdi and Another v. Minister of Home Affairs (734/10)  ZASCA 2 (15 February 2011) (S. Afr.), the South African court rejected the Government’s arguments that two Somali nationals – one an asylum seeker and the other a recognized refugee – being held in the Inadmissibility Facility detention center at the airport while awaiting transfer to Kenya were outside the scope of South African law. The Court held that it was immaterial that the two had left South Africa for Namibia prior to their detention and, as illegal entrants, were subject to a Namibian deportation order.
- In ECtHR, Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January 2011, the ECtHR held that the Belgian government had violated an asylum seeker from Afghanistan’s rights under Article 3 of the European Convention on Human Rights by returning him to Greece, the country he had initially transited through, to adjudicate his asylum claim because it was common knowledge that the Greek government lacked adequate asylum procedures, thus, placing the applicant at risk of being returned to Afghanistan where his life or freedom would be in danger.
- In M70/2011 and M106/2011 v. Minister for Immigration and Citizenship & Anor,  HCA 32 (Austl.) the Australian High Court held that the Minister’s declaration under § 198A of Australia’s Migration Act that asylum seekers who arrived on the excised territory of Christmas Island could be sent to Malaysia where their asylum claims would be considered was not valid because he had failed to adequately consider the factors set forth in § 198A(i)-(iv), namely that Malaysia was not a party to the Convention, had no domestic law recognizing the status of refugees, and that the Arrangement between Australia and Malaysia – in which Malaysia would recognize refugees and adjudicate claims in accordance with international standards – was not legally binding.
- In ACommHPR, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, Communication No. 249/02, 36th Ordinary Session, December 2004, the African Commission on Human and Peoples’ Rights (ACHPR) found that a proclamation by then-President Lasana Conté made over national radio stating that Sierra Leonean refugees should be arrested, searched and confined to refugee camps resulted in widespread violence and discrimination against Sierra Leonean refugees to such a serious degree that many were effectively forced to repatriate to Sierra Leone despite the ongoing civil war. The ACHPR held that the treatment of Sierra Leonean refugees violated the principle of non-refoulement and the Sierra Leoneans’ right to freedom from mass expulsion. See also ACommHPR, Organisation mondiale contre la torture, Association Internationale des jurists démocrates, Commission internationale des jurists, Union interafricaine des droits de l’Homme v. Rwanda, Communications No. 27/89-46/90-46/91-99/93, 20th Ordinary Session, October 1996 (expulsion of Burundi refugees living in Rwanda without opportunity to contest their removal violated their rights under the African Charter); but see ACommHPR, Curtis Francis Doebbler v. Sudan, Communication No. 235/00, 46thOrdinary Session, November 2009 (no violation where Sudan announced, in coordination with UNHCR, cessation of Ethiopian refugee status following the end of the Mengistu regime and where there were procedures in place for Ethiopians who still had a well-founded fear of persecution to have their claims heard.)
- In Matter of S-K-, 23 I&N 936 (BIA 2006), the U.S. Board of Immigration Appeals (BIA) held that a Burmese national who had provided approximately 700 dollars to the Chin National Front, which was at the time considered a Tier III terrorist organization under U.S. law, was inadmissible on the grounds that she had provided material support to a terrorist organization. It was irrelevant that the U.S. Government supported the National Democratic League, an ally of the Chin National Front, and that the Chin National Front fought against the Burmese Government, to which the U.S. was opposed. In the wake of controversy following the broad application of the material support bar to refugees and asylum seekers, the U.S. Government has subsequently applied a discretionary waiver to several organizations, including the Chin National Front, permitting refugees who had supported these organizations to enter the U.S. as resettled refugees or claim asylum.
WAR CRIMES AND CRIMES AGAINST HUMANITY
- Negusie v. Holder, 555 U.S. 511 (2009): The U.S. Supreme Court remanded to the BIA to determine whether the Refugee Act, which incorporated the 1967 Optional Protocol’s exclusion of individuals who had committed war crimes and crimes against humanity from refugee status, included an exception for persecutory acts committed under duress. The Court held that the BIA, in denying Negusie, an Eritrean national’s asylum application, had erred in relying on Fedorenko v. United States, 449 U.S. 490 (1981), to find there was no duress exception because Fedorenko concerned a claim arising out of the Displaced Person’s Act and not the 1980 Refugee Act.
- A.B. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform,  IEHC 198  667 Ir. Jur. Rep. (5th May, 2011) (H.Ct.) (Ir.): Irish High Court granted leave to apply for judicial review where Refugees Appeals Tribunal had failed to conduct an adequate assessment of whether a former Taliban commander had personally participated in war crimes and crimes against humanity. The Court adopted the standard articulated in Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v. B und D  ECR I-000, whereby there is a permissive presumption that any person who occupied a high position within a terrorist organization participated in the activities articulated in Article 1F of the 1951 Convention but authorities must nonetheless conduct an assessment to determine the role the individual personally played in carrying out such acts.
PARTICULARLY SERIOUS CRIME
- Matter of Carballe, 19 I&N 357 (BIA 1986): BIA held that aliens who had been convicted of a particularly serious crime within the U.S. were presumptively dangerous to the community, denying withholding of removal to a Cuban national. See also, Ali v. Achim, 468 F.3d 462 (7th Cir. 2006) (affirming BIA’s holding that the Attorney General may consider other crimes not listed in the INA to constitute a particularly serious crime for preclusion from withholding of removal, rejecting contrary opinion of UNHCR guidelines, denying withholding of removal to a Somali national.)
- Conseil d’etat [CE] [Council of State] April 7, 2010, Rec. Lebon 2010, IX-X, 319840 (Fr.): Council of State granted asylum to Iraqi national who had participated in an honor killing while still a minor holding that the Commission des Recours des Réfugiés should have considered whether family pressure lowered his free will and whether his young age may have made him especially vulnerable to such pressure. (Decision is only available in French but an English summary can be found here.)
- R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t  EWHC 2937 (Admin.) (U.K.): In determining whether there is material before the Home Secretary that justifies a serious belief that the individual who claims protection has committed a serious crime, the Home Secretary is required to look at all the circumstances of the case including: the law of England and the law of the country where the crime is said to have occurred, the individual factual matrix of the alleged crime including any potential defenses, the age and circumstances of the applicant, and the likely punishment if found guilty. To be considered a serious crime, there must be a high degree of culpability on the part of the alleged offender. Here, the Home Secretary erred in finding there were serious grounds for believing the applicant had committed a particularly serious crime when she had found that the applicant, a minor from Afghanistan, had likely committed the alleged crime unintentionally and failed to consider his age and circumstances.