Legal protection of refugees: Follow-up questions

On 21 October, PHAP hosted an online learning session on the legal protection of refugees with over 250 online participants. With a 30-year career with UNHCR followed by research and teaching positions, Jean-François Durieux shared his broad expertise on the topic, and provided participants with an introduction to international refugee law and other legal frameworks protecting refugees, introducing the key legal concepts, the purpose of international refugee law, and its primary sources. In addition to answering questions in live during the event (which you can listen to in the event recording), Jean-François has also answered follow-up questions submitted by the event participants, which you can read below.

 

“Is there any legal instrument that prioritizes more vulnerable refugees, such as persons with serious diseases or unaccompanied children, who could be reunified with their families in the hosting country?”
- Emergency Program Manager, INGO, France

There is no refugee-specific binding instrument on these matters. International conventions exist, however, e.g. on the rights of persons with disabilities, the rights of the child, and the right to family life – and refugees are protected by those treaties too, provided that the host country has ratified them.

In the refugee law domain, the Executive Committee of UNHCR has adopted numerous conclusions on refugees with special vulnerabilities. They can be found on UNHCR’s website and on Refworld.

 

“Have State parties to the 1951 Convention invoked Article 38 (‘settlement of dispute’) to escape their legal obligations regarding refugees?”
- Research Associate, Singapore

No state has ever invoked the settlement of disputes clause of the Convention (Art.38). Note, however, that it cannot be invoked by a state to evade its own responsibilities: ‘settlement of dispute’ refers to the [hypothetical] case in which one State party complains about the performance of another State party.

 

“Is it in line with refugee law to not accept asylum seekers who are in possession of a regular visa?”
- Legal Operator, Italy

No, it is not. Refugees are excused for entering a country of asylum without the proper documentation (Art. 31 of the 1951 Convention) – but this does not mean that refugees MUST be undocumented! What, arguably, a receiving state is allowed to do is to wait until the valid entry visa has expired before determining whether the person is a refugee. Nonetheless, the asylum request must be registered at the moment the person concerned claims asylum, regardless of her migration status at the time. Indeed, this is an important guarantee against the risk of refoulement.

 

“Can the state which is receiving refugees ask the refugees' state of origin for compensation for all costs involved?”
- Student, Palestine

Refugee law does not deal with the responsibilities of the state of origin. The complaining state should therefore resort to general international law, in particular the law of state responsibility for wrongful actions. See the following resource (click here).

 

“How is the resettlement process negotiated? Is there any particular legal punishment foreseen for a State that expels refugees?”
- Area Coordinator, NGO, Democratic Republic of the Congo

On resettlement: criteria and priorities are set on a regular basis – at least once a year – by UNHCR and the major countries of resettlement. Once the target groups and categories are thus identified, there follows a process of selection of individuals and families corresponding to the criteria. The pre-selection is usually carried out by UNHCR, but the final decision is always made by the authorities of the resettlement country.

On expulsion: if such expulsion is carried out in violation of Art. 32 or 33 of the 1951 Convention, any affected State may take the matter up to the International Court of Justice in application of Art. 38 – but in practice this has never been done. The affected individual(s) may have a recourse domestically under human rights law, which also prohibits refoulement, as well as mass expulsion and inhuman treatment.

 

“Should the principle of non-refoulement be considered jus cogens or an erga omnes obligation?”
- Lawyer, Brazil & Senior Legal Researcher, Rwanda

There is ample literature on the subject, indeed. See, e.g., Jean Allain’s “The jus cogens Nature of non-refoulement” in the International Journal of Refugee Law.

Personally, I do not see how a reference to jus cogens or erga omnes would make the non-refoulement rule stronger or more effective. For most states in the world this is a treaty-based obligation, and for the other states, one can invoke the existence of a customary rule.

 

“When asylum seekers are denied refugee status and they have to be returned to their home country, does international law grant them any special protection inside their home country?”
- Program Management Analyst, United States

In principle, no – if they are not refugees they do not fear persecution in their home countries, hence they do not need any special protection there. Of course, if you can prove that the negative decision on their refugee status was made in error, then you must advocate for their evacuation back to the state that made the wrong decision. On occasion, situation-specific agreements have provided for some post-return monitoring of the situation of rejected asylum seekers – e.g. inside Vietnam within the framework of the Comprehensive Plan of Action (1989). Another example is the 1994 agreement between the governments of Switzerland and Sri Lanka for the UNHCR-supervised repatriation to Sri Lanka of failed Sri Lankan refugee claimants in Switzerland.

 

“Why do some states say those fleeing armed conflict are not refugees, and to what extent can they apply their own interpretations?”
- Immigration Advisor, United Kingdom

Fear of unmanageable numbers of asylum seekers is probably what causes states to argue that refugees from armed conflict are not “genuine” refugees. Where a legal argument is made, it is usually to deny a “nexus” with a Convention ground – i.e., to say that violence in war is indiscriminate, therefore those fleeing cannot argue that they would be persecuted for reasons of any specific characteristic, such as race, religion, etc. If we take a rigorous look at the refugee definition in the 1951 Convention, we must accept that those who flee the indiscriminate effects of armed conflict (e.g. famine, destruction of public health infrastructure, loss of livelihoods) do not meet the criteria. On the other hand, there is a lot of discriminate persecution within armed conflict, which means that (as UNHCR has argued) most refugees fleeing from Syria these days should be recognized as Convention refugees on the basis of their imputed political opinion, ethnicity, or religion.

UNHCR regularly issues guidelines on interpretation of the refugee definition – you will find them on UNHCR’s website.

This does not guarantee, however, that all States parties will interpret the terms of the definition in the exact same way.

 

“Should gender be listed as grounds within the 1951 Convention?”
- Gender and Protection Lead, INGO, Greece

In my opinion, yes – this would require an additional (optional) Protocol. I spoke on this very subject in London on 24 October – the talk will be podcast soon on the site of the Refugee Law Initiative.

 

“If someone is excluded due to one of the mentioned reasons (i.e. fugitives from justice; war crimes, etc.), they might still enjoy subsidiary protection under human rights law, is that correct?”
- Crisis Monitoring Advisor, INGO, Germany

Correct. They may be protected against forcible return to torture under the Convention against Torture, or against return to cruel, inhuman or degrading treatment under the European Convention on Human Rights (ECHR), etc. What residence status they get is, however, not determined by the treaty that prohibits return. In EU law, subsidiary protection is regulated, but this is not the case everywhere.

 

“Are there any clear examples of group determination of refugee status used in an African context?”
- Legal Fellow, United States

Yes, examples are aplenty. Check my article with Hurwitz: “How Many is Too Many?” (German Yearbook of International Law 47, 2004) and the references therein. You can also find illustrations in the work of Rutinwa, e.g., in “Prima facie status and refugee protection”.

 

“In many countries, e.g. the UK, large scale undocumented migration is presented as 'the problem', preventing 'genuine' refugees from accessing protection under the 1951 Convention. Is this a major issue?”
- Immigration Advisor, United Kingdom

I believe the issue you are referring to is one of perceived abuse of the asylum system: (1) by migrants who are not refugees but still claim that they are, thus clogging the system; and (2) by refugees who “jump the queue” – i.e. they move from a first place of (relative) safety to Europe without being “invited.” It is a mantra of, in particular, Australian policy that such spontaneous movers are hurting the refugees with a greater need of resettlement (e.g. the more vulnerable and the poorer ones) who languish in refugee camps. Of course, from a strict legal point of view, both those arriving spontaneously and those suffering in camps have rights, including the right to seek and enjoy safe asylum.

 

“The 1951 Convention is the cornerstone of the Common European Asylum System. As regards the access to the rights and benefits deriving from the status of international protection, according to Article 23 of the Qualification Directive (Directive 2011/95/EU), family members of beneficiaries of international protection shall receive the same rights as the beneficiaries of refugee status/subsidiary protection. Moreover, under Article 3 of the Reception Directive (Directive 2011/33/EU), family members who are covered by the application of international protection shall also receive material reception conditions. Can you please explain if the aim of the legislation is to guarantee such rights to family members only as long as the beneficiary/applicant is alive and in the concerned Member State? Will the benefits and the rights of the family members be automatically withdrawn once the beneficiary loses his/her status? Or are their rights independent once they are granted?”
- Legal Consultant, Belgium

Derivative rights and benefits inevitably depend on the principal beneficiary being alive, and (in most cases) physically present, too. However, if dependent children find themselves unaccompanied or orphaned at some point, they will in this “new capacity” obtain at least as many rights and benefits as they previously had on a derivative basis.

You can access the rest of the Q&A as well as further resources on the event page.