Who is a 'refugee'? Is the current definition fit for purpose? Should it be changed, and if so, how? By defining a 'refugee', what does that mean for other people who do not fall into this category? These questions, and so much more, were discussed by three renowned speakers in a recent LSE podcast. You can listen to it below, or if you don’t have 90 minutes to spare, you can read our review instead ;)
"Who is a refugee?": An ostensibly simple question which on further analysis reveals a complex legal framework that is a) difficult to monitor or enforce, b) not ratified by every state, and c) remains contested on a number of fronts.
With right-wing and populist movements in many host nations clamoring to tighten the current legal definition, whilst refugee advocates and NGOs are requesting a reassessment and expansion of the very same definition, the question 'who is a refugee?' is a hot topic, and one which this podcast explores in meticulous and thoughtful detail.
Of course, aside from the legal question, there is a much deeper question that we must ask ourselves: By ratifying the term 'refugee', as defined by the UN Refugee Convention, we are creating a hierarchy of needs, with refugees at the top, and below, a growing underclass of 'non-refugees' who are left to rot in decrepit and unsanitary migrant camps for years, or face being sent back to unstable and dangerous countries- What about their rights?
So now let’s take a look at the podcast itself. I will provide a step-by-step analysis of the discussion, important quotes and stats, and some additional personal musings. But first, let's introduce the speakers..
Ahmad Al Rashid : Author, Syrian campaigner, and 'Violence, Conflict and Development' Postgraduate at SOAS. Al-Rashid currently works for the International Organisation for Migration, and is a prominent speaker and advocate for refugee rights. Rashid, himself a refugee from Syria, came to Europe in 2015- His journey was documented in the ground- breaking BBC series Exodus: Our Journey To Europe. (see a clip below)
Dr. Phillip Cole : Senior Lecturer in Politics and International Relations at UWE, Bristol, and author of a number of acclaimed books, including 'The Myth of Evil', 'Philosophies of Exclusion', and 'Liberal Political Theory and Immigration'.
Professor Elspeth Guild: Jean Monnet Professor ad personam at Queen Mary, University of London. A specialist on EU border and migration laws, she frequently acts as an expert on immigration issues for organisations such as the UNHCR, the European Commission, and the House of Commons and House of Lords.
IMPORTANT TERMINOLOGY YOU WILL NEED TO KNOW:
Non-refoulement: A basic principle of international law, enshrined in Article 33 of the Refugee Convention, 1951: "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever 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."
Secondary Movement: The journey of a refugee is commonly broken up into stages. Very often the first host country they reach (confusingly called the ‘Third Country’, eg Turkey) is not the ultimate destination due to reasons such as lack of resources or proper implementation of rights. From the ‘third country’ the refugee continues their travel to the destination country. This second journey is called ‘Secondary Movement’.
Soft law solutions: An international collaborative and elective framework which could be used to cater for ‘on the move’ people who do not fall into the category of refugee as outlined in the Refugee Convention, but nonetheless are vulnerable and in need of protection.
SOME PRETTY MIND-BOGGLING STATS. (Sourced from UNHCR)
65 million forcibly displaced people worldwide
22.5 million refugees (over half of these are under 18)
10 million stateless people
28,300 people forced to flee their homes every day
189,300 refugees re-settled
Top 5 host countries are all in the global South
Opening quote from the UNHCR:
“Migrants are fundamentally different from refugees, and thus are treated very differently under international law. Although refugees and migrants increasingly use the same routes and methods of transport to reach their destination, migrants (esp. economic migrants) choose to move in order to improve their lives, whilst refugees are forced to flee to save their lives or preserve their freedom.”
This quotation forms the axis of the discussion: It is this balance between refugee and non-refugee which lies at the heart of the debate.
The host, Dr Fine, introduces the discussion with some pertinent questions:
“Is the UNHCR right to claim that migrants are fundamentally different from refugees? If so, how is the distinction to be drawn? And why exactly does it matter? What is the relationship between migration and refugeehood? And what does this mean for internally displaced people? Is the existing legal definition of a refugee fit for purpose? And what might be the implications of seeking to modify that definition?”
THE MAIN DEBATE
PHASE 1: CLARIFYING THE CURRENT DEFINITION OF A ‘REFUGEE’ & UNDERSTANDING ITS LIMITATIONS.
Guild opens by providing the current legal definition of a ‘refugee’, and the supporting legal framework. This definition was established in the UN Refugee Convention of 1951, and is widely ratified by countries across the globe. It has remained largely the same for the last fifty plus years, with a couple of amendments added to include the 1984 UN Convention Against Torture, and the 2006 UN Convention Against Enforced Disappearances. Guild notes that both of these modifications are justified under the principle of ‘non-refoulement’.
“A refugee is someone who is outside his or her country of nationality, as opposed to an internally displaced person; Who has a well-founded fear of persecution on the basis of race, religion, nationality, membership of a social group or political opinion.”
Guild emphasizes the anxiety of the international community to provide appropriate protection for refugees, and the concern that the definition of refugeehood is still too narrow. By evoking the principle of non-refoulement, international bodies attempt to make the appropriate changes to the Refugee Convention to accommodate new categories of people at risk.
“The story is not so much a story of failure or of luck- it’s a story of the need for international solidarity and proper implementation.”
But Guild admits there are huge problems with the definition: First of all, how do you define persecution? How do you define torture? Should there be more than just five guiding principles of non-refoulement? And how can you even be sure if a person faces genuine persecution or not? (This question in particular explains why there are huge discrepancies in the number of refugees accepted by different host countries).
Even with this arguably sparse definition, there are many grounds for exclusion, most commonly on the grounds of terrorist threat, or war crimes.
When prompted by the subsequent question, “Could you tell us, when, if ever, does somebody stop being a refugee?”, Elsbeth explains that a refugee will cease to be a refugee when they are no longer in need of protection and can return to their country of origin. Or, when the person acquires citizenship of the host country, and therefore ceases to be a refugee and becomes a citizen.
That seems pretty straight forward, but of course the problem lies in the initial acknowledgement of refugee status. Therein lies the core of the difficulty, says Elsbeth, who cites the huge variation in asylum-seeker acceptance rates, with one particular EU country recognizing zero Syrians in the last year, but in another, a huge 99 percent receiving refugee status.
So we now have the basic UN-definition of a refugee, plus additional amendments. We understand what ‘non-refoulement’ means, and how it applies. We understand the complexities of creating a definition which is fair and applicable, and the pitfalls of creating a definition which is very hard to verify (eg,“How can I know if this person is really at risk of torture?”), to implement and monitor ("Why has this country only accepted one refugee? Are they disregarding the definition?), and to enforce ("How can we make a host country accept more refugees?").
PHASE 2: THE DIFFERENCE BETWEEN A REFUGEE AND AN ASYLUM SEEKER.
Essentially, all refugees were asylum-seekers, but not all asylum-seekers are refugees; An asylum-seeker is someone who is applying for refugees status (or 'asylum'). Until their application is accepted, they remain an asylum-seeker, and once they are accepted, they become a refugee.
Once their asylum application is accepted (and this does not happen for all cases!), they are afforded protection, governmental support, access to benefits and education and the right to stay for a certain period of time as specified by that particular host country (eg France allows a stay of 10 years), with the option of extension after this period has elapsed.
Asylum seekers, on the other hand, have none of these benefits. Until their application is accepted, they live in limbo, surviving on meagre allowances, and facing the constant anxiety of being sent back to their country of origin. (To read more about the life of an asylum seeker, check out my recent article: “Why Do French Asylum Seekers love the colour Pink?")
Professor Guild provides the helpful analogy of losing your passport, to explain the process of seeking asylum:
“In international law, you’ve always been a refugee. But for the States purposes you were an ‘asylum seeker’ until the State examined your case and decided that you were a refugee, but with that retroactive effect. It’s as if you arrive at the airport in the UK and you say, “I’m a British citizen but I’ve lost my passport”, and the immigration officer says, “you probably are/ are not: Here are a pile of papers, fill in all these forms, we will give you an interview in a couple of weeks, and if we can establish you as a British Citizen then you are entitled to be here. If you are not, we will send you back to where you came from.”
PHASE 3: IS THE CURRENT DEFINITION SUFFICIENT? AND HOW CAN THE ASYLUM-SEEKING PROCESS BE IMPROVED?
We now understand the difference between a refugee and an asylum-seeker. We know how the asylum-seeking process works, and the five key areas under which an asylum-seeking application must fall in order to receive refugee status (e.g race, religion, social group, nationality, political opinion). But, is this adequate?
"Do you think that the international legal definition is in need of modification? And if so, why? I would like to hear about any problems that you’ve identified with the processes involved in being recognized as a refugee.”
Ahmed Al-Rashid draws the discussion away from the EU admissions process, and brings the focus to the Middle East’s treatment of refugees, and the accompanying legal complexities. He identifies a loophole that many countries, including Turkey, are using as a way of preventing refugees from receiving the full benefits of refugee status. He also mentions the confusion and total bewilderment of being a refugee in these countries, of not understanding the jargon, or knowing their rights.
Ahmed describes his own experience crossing the Syrian border into the Iraqi-Kurdish region of Northern Iraq, and being greeted by border officials who tell him that he is a ‘guest’. This is a double-edged sword: On the one hand, this is a far more relaxed and open way to welcome refugees. But on the other hand, the term ‘guest’ is vague, and deprives the new arrivals of any official status or related rights.
“In northern Iraq, because of the politics of that country, I was seen not as an asylum seeker, or as a refugee. When they tell me that you are a ‘brother’, because of my ethnicity, that you are a Kurdish brother that is coming from Syria to Iraq, it meant that I am at home, that I needed to respect the regulation, the rules that they set. On the other hand they deprived me of the legal definitions. There was no one there that told me, “this is what it means to be an asylum seeker, this is what it means to be a refugee. These are your rights”.”
Ahmed describes the experience of many of his friends who arrived in Turkey or Northern Iraq, and were given a piece of paper with information about their rights and contact details; but in technical language that nobody understood.
“At refugee camps in northern Iraq and Turkey you’ll be given a piece of paper stating your rights, contact details and info… All technical terms- you do not understand them. If you go to an official. They say, “you need to ask someone else.””
He explains that lack of knowledge keeps refugees stuck in protracted situations, unable to access their rights, or even understand what they are entitled to. This loose definition of ‘guest’ exploits the general chaos, and Ahmed believes it is used deliberately by governments as a way of obscuring information, and denying people access to their legal rights.
“If you look at the bigger picture- what is the definition of a guest? What does this mean for me? And for how long can I remain a guest? I know people that have lived in Turkey for the last 5 or 6 years. They still cannot distinguish between refugee and asylum-seeker, and a guest or whatever. I believe there is a deliberate policy by some governments to remove this word. (…) We say ‘brothers’ and ‘sisters’, and ‘guest’. It is too vague. It has no meaning. You find some political parties using this for their ends.”
Ahmed ends with emphasizing how rigorous the refugee process already is- of the plight of his friends and family, still waiting for some sort of resolution at the refugee camps, and of the need for a standardization of the asylum-seeking procedure. Particularly in the current political climate, he voices his concerns over the effect that populism will have on the already tight restrictions on migration, and criticizes the Euro-centric, security-based current definition of a refugee.
“If you bring it back to the single thing of, “who is a refugee?” It’s a person who is fleeing persecution, fleeing for his life.”
Dr Cole returns to the question of the normative definition and whether it is sufficient. He makes two points, firstly, on the legal definition of a refugee. He favors the theoretical, human-rights based approach, which defines refugeehood on the basis of human rights:
“a refugee is someone whose fundamental human rights cannot be met without migration. They can only happen if they leave.”
This leads to supplementary questions: what is a fundamental human right? Would it be possible to meet those rights in some other way other than migration, such as humanitarian intervention in the territory of that state? An argument about "alternative to flight strategies”. Can we do something that makes flight not necessary?
Cole also reminds us that the UN definition of a refugee is not legally recognized in all countries, including Bangladesh (a worrying fact, given the current crisis in Myanmar, see our recent article here for more info).
The next point he makes (which echoes Ahmed’s previous point), is the problem of Euro-centricity- the fact that most discussions are focused on the ‘issues’ of integration and migration, and the perceived ‘refugee crisis’ and all the threats this poses to European countries and citizens. This distracts and detracts from the truly vulnerable stake holder: the refugee.
“The processes, both political and policy, don’t recognize refugee as a stakeholder. One interesting thing is how to include the refugee voice at all levels of this, so they get heard. They are the key stakeholder here. Regarded as passive objects, a problem to be solved, rather than the people who HAVE the problem.”
Guild concludes by saying she doesn’t think there needs to by a total re-definition of a Refugee. The current definition is useful and relatively flexible, and under the principle of non-refoulement, it continues to expand. But there needs to be more conventions added to it, to cover an increasing number of people, including people fleeing environmental disaster.
“People recognize and want to protect their neighbours who need protection. We don’t live in a world where refugees are unwelcome. We live in a world where there is a tremendous cleavage between the people who States say are refugees and welcome, and the people States say are NOT refugees, just pretending to be refugees. Whether or not these people are getting a genuine hearing.”
SUMMARY OF PART 1
Some very interesting points were raised by all speakers, and in principle, all speakers agree that refugees deserve protection, and that other migratory groups also need to be cared for. Where the speakers differ is in the strategic way in which this should be done.
Prof. Guild proposes keeping the current UN definition of a refugee, but adding extra laws which provide protection to an increasing number of vulnerable displaced people, who do not currently fall into the category of 'refugee'.
Al-Rashid meanwhile seems to implicitly suggest that the definition itself is too narrow and should be expanded. He also voices concerns about the treatment of refugees in Third Countries, such as Turkey or Lebanon, which are using unofficial terminology which robs the refugee of any legitimacy in the eyes of international law.
Dr Cole concentrates on the more philosophical end of the discussion, and makes a salient point about the Euro-centric nature of the current definition.
Okay, if you have got this far then WELL DONE. Hopefully Part 1 has got you thinking more about the complexities of defining Refugeehood, and you have had the chance to familiarize yourself with some of the basic terminology surrounding refugee discourse (non-refoulement is key!).
If you enjoyed this article then please 'like', share and post any comments in the comments bar below. Thank you for reading and STAY TUNED for Part 2, coming very soon!