MIGRANTS, REFUGEES, AND ASYLUM SEEKERS: LEGAL PROTECTIONS & HUMANITARIAN RESPONSES

Author: Akash Dey Bhowmick; a student at St. Xavier’s University, Kolkata

ABSTRACT

The United Nations High Commission for Refugees (UNHCR), 2023 report states a staggering figure of 114 million individuals who have been subjected to forceful migration of which 35.3 million are refugees while 5.4 million are asylum seekers.

From an international law perspective, “migrant” is an umbrella term which clubs together all such persons who have moved away from their usual places of residence within or across an international border either temporarily or permanently for a variety of reasons.

Now, there resides two kinds of migrants- wilful migrants and forced migrants. The former is a representation of a voluntary movement in search of better opportunities and livelihood whereas the latter is the sad and unfortunate representation of an involuntary or coerced displacement for reasons beyond their control or personal choice. While economic migrants serve as the ideal example of wilful migrants; the vulnerable communities of refugees, asylum-seekers, stateless people and internally displaced persons (IDPs) serve as the instances of forced migrants who are covered under the realms of International Humanitarian Law and International Refugee Law coherently.

Economic migrants are not seen as a community who has had their basic human rights curtailed but rather as a community who has simply opted to elevate their life through their search and settlement for better conditionalities. This is where they stand demarcated from refugees and asylum seekers who have had their most fundamental human rights breached and violated. Hence the legal protections and humanitarian responses that extend to them are tailor-made to reinstate their gravely displaced human rights and in doing so, the pursuit to undo their forced displacement continues too.

INTRODUCTION

The concept of refugeehood and asylum-seekers was first proactively introduced into the international legal realm through the United Nations Convention on the Status of Refugees, 1951 (UNSCR, 1951). Therein, as per Article 1 of the convention, a refugee is defined as a person who has been forced to flee from his country of origin owing to a well-founded fear of persecution on the grounds of race, religion, membership of a social group or a political opinion and nationality. This definition has been laid down in conformity with the two essential mandates of the Universal Declaration of Human Rights, 1948 (UDHR, 1948) which are not to deprive an individual from his right to nationality as mentioned under Article 15 therein and the right of an individual to seek asylum from persecution in other countries as stipulated under Article 14.

The very cardinal aspect of the concepts of refugeehood and asylum is to decipher the true sense of “well-founded fear of persecution”. This terminology has got a deeper connotation than what actually appears to the eye. It has an objective as well as a subjective understanding. The objective connotation of it relates to the “well-founded elements” which serve as the evidences of the actual situation from which the person is fleeing and the subjective connotation relates to the “psychological fear” that has been infused because of it.

While the term “persecution” remains largely undefined due to lack of consensus, the UNCSR with reference to Article 33 infers it as a threat to life or freedom arising out of race, religion, nationality and political opinion or social group.

 The term “race” encompasses all groups of common descent including those forming a minority within the larger population. In terms of “religion”, there exists an amalgamation of rights as laid out in a number of different human rights and refugee rights conventions. The UDHR and the ICCPR (International Covenant on Civil and Political Rights) covers the right to freedom of thought, religion and conscience. The UNCSR too includes the right to practice religion in public and private capacity. “Nationality” in the context of UNCSR pertains to those who have become refugees due to conflicts stemming from inter-state or intra-state boundary disputes. 

Lastly, the purview of social groups or political opinion has been dealt with separately. For a “social group”, it is not necessary for it to be cohesive, connected or organised; it simply needs to have common mutable or immutable characteristics; women, gays and lesbians qualify as social groups and the same has been upheld in the landmark international law judgment of Islam v/s Secretary of State for Home Department, 1999. In relation to “political opinion”, Article 19 of the UDHR comes in application which guarantees freedom of expression of political opinion. The UNCSR recognising the same extends its coverage to even those people who have been forced to flee his country for having a political opinion contrary to the majority of the people therein.

Therefore, anyone who is under any of the aforementioned categories and circumstances along with the existence of the danger of refoulement i.e. forcible return qualifies to be conferred with the status of a refugee and a subsequent asylum-seeker.

LEGAL PROTECTIONS

Refuge Law is guided by the three main principles of ‘non-refoulement’, ‘right of asylum’ and ‘non-discrimination’ which serve as the three foundational frameworks for the legal protections which are enjoyed by an asylum-seeker or a refugee.

‘Non-refoulement’ is dealt under Article 33(1) of the UNCSR, 1951 where in it has been explicitly stated that no reservation is permitted against refoulement i.e. to derive back or repel or return back a refugee to the country where he is likely to face persecution or torture. It covers all such refugees who are in conformity with the definition of refugee as laid out in Article 1A of the convention and do not fall within one of its exclusion provisions ranging from Articles 1D to 1F. Over time, non-refoulement has become a peremptory norm in international refugee law and at present serves as a jus-cogens, a rule that is non-negotiable. Apart from the UNCSR, Article 7 of the ICCPR (International Covenant on the Civil and Political Rights, 1966) and Article 3 of the Torture Convention too recognises the same internationally. Additionally, many regional conventions too such as the ‘OAU (Organisation for African Unity) Refugee Convention’, ‘the American Human Rights Convention’, ‘the European Convention for the Protection of Human Rights and Fundamental Freedoms’ mention the principle of non-refoulement with substantial emphasise and importance.

‘Right of asylum’ is recognised my several international human rights instruments such as the UDHR, ICCPR and the CERD (Convention on the Elimination of All Forms of Racial Discrimination). The United Nations Declaration on Territorial Asylum, 1967 further necessitates it. The ‘grant of asylum’ to a refugee is seen as a peaceful and humanitarian act which cannot be regarded as unfriendly by any other state unless there are serious reasons for consideration against the asylum-seeker on the grounds of having committed any humanitarian crime, any war crime or any crime against peace that might hinder or compromise the country’s national security that is extending the asylum at the first place.

And finally, the principle of ‘non-discrimination’ is in conformity with Article 3 of the UNCSR, 1951 which makes it essential for every nation to treat refugees without any discrimination based on race, religion or country of origin. Articles 12 to 30 of UNCSR,1951 ensures that the refugees and asylum-seekers are given the same rights as the nationals of the receiving country or foreign country.

The certain grundnorms which every host country needs to abide by to furnish appropriate protections to the interests of the refugees and asylum-seekers are as follow: –

1. No asylum seeker is to be rejected at the frontier or if he has already entered the territory in which he seeks asylum. Expulsion for compulsory return to any State where he may be subjected to persecution is forbidden except in a situation where the receiving or foreign country is standing on the verge of mass influx and it needs to safeguard its population from the same to uphold its territorial integrity and sovereignty.
2. The persons who would be granted asylum are not to be engaged in any kind of activity that is contrary to the purposes and principles of the UN.
3. To properly document the asylum-seekers through issuance of certificates and identity cards.
4. For the enhanced security of the refugees, the host countries should settle them as far as possible from the frontiers of their countries of origin.
5. When a host country is finding it difficult to grant asylum to refugees due to its natural resources being stretched to the limit; other countries either individually or jointly out of the feelings of international solidarity should take in the refugees to lighten its burden.
6. To create different safe zones or safe havens for refugee settlements. These are locations within the disputed territory which is neutral and free of any belligerency having complete humanitarian access.

HUMANITARIAN RESPONSES

The three established solutions to any refugee crisis are: –

• Voluntary repatriation is considered only when there are conditions for the reintegration of the refugees in their country of origin. When such a process takes place, the responsibility is shared by both the country of asylum and the country of origin to ensure that conditions are adequate and sufficient for the refugees to re-establish themselves in their home country again. This is attained through a transparent dissemination of information in regards to the subsisting conditions and scenarios which once triggered the refugeehood thereby enabling the refugees to make free and informed choice about their return so as to cater to their specific needs. This is deemed as best suited for a long-term solution to any refugee crisis. 

• Local integration serves as the rather durable alternative in giving the refugees another chance to build a new life by integrating them into the local community of the country where they had sought refuge. This takes place through three processes. Firstly, the legal process of entitling the refugees with a more comprehensive range of rights in the host state. Secondly, the economic process of establishing a sustainable livelihood and standard of living comparable to the host community. The third and final stage of local integration involves the social and cultural process of adaptation and acceptance. Local assimilation is the most challenging and complicated process since it requires to take on board both the interests of the refugees as well as the host community so as to attain a smoother and harmonious integration.

• Finally, the resettlement solution to a refugee crisis arises when the refugees have been living in terrifying conditions with their specific needs unaddressed in the country where they have sought protection; in such an unforeseen event, resettlement to a third country is considered the viable option. The refugees are transferred from an asylum country to another state that has agreed to admit them and grant them permanent settlement. The resettlement states provide legal and physical protection to the refugees with access to civil, economic, political and cultural rights which are at par with those which are already enjoyed by the nationals of the resettlement states. This form of humanitarian response to refugees or asylum seekers are least preferred since it carries with it an innate chance of consistent circumstantial challenge in the form of the refugees being resettled to a country where the society, language and culture are so different that an insurmountable barrier comes in their way of a proper exercise of their rights.

CASE LAWS

Some notable case laws which uphold the interests and well-being of refugees and asylum-seekers are as follow: –

Majid Ahmed Abdul Majid Mohammed Jad Al-Hak v/s Union of India – In this case, the principle of non-refoulment was upheld along with the establishment of the requirement to provide adequate and appropriate food and medical care to the detainees as a bare minimum for their survival. Along with these aspects, it was also laid out that refugees and asylum seekers are to be given their right to practice and profess their own religion subject to reasonable restrictions that apply to everyone including aliens(foreigners).

Then in the case of Ktaer Abbas Habib Al Qutaifi v/s Union of India, the principle of non-refoulment was brought under the broad purview of an individual’s right to life when two Iraqis were not deported back to their original country of origin since a persistent threat to their life remained upon their return.

Furthermore, through the case of Bogyi v/s Union of India, a precedent was set that there must be a liberal interpretation of detention to enable UNHCR to determine the status of the refugee and not to deport back the refugee until so happens.

CONCLUSION

It is to be understood that refugees once and originally belonged to the mainstream community only and primarily was well settled in their element, it has been through the continuous processes of wars, revolutions and state building that certain communities have got displaced from their habitual states having fallen prey to the everchanging geo-politics. From the times of the forced displacement of the Kulaks during Russian Revolution which for the first time in recorded history triggered refugeehood to the infamous and ill-fated contemporary instances of the forced migration of the Rohingyas and the Kurds, the plight has still been the same. While many a regional and international instrument have sprung up to attend and alleviate the conditions of refugees and asylum-seekers, the very need of the hour resides in their proper identification and framing of domestic laws catering to their specific needs in conformity with their personalised struggles so as to ensure that they are not put through further harassments than what they have already been put through. Proper checks and balances need to be enforced in domestic statutes of respective countries which deal with refugee laws in a rather arbitrary manner and brandish unlimited power upon such sensitive issues. The global bodies need to be more steadfast and resolute in their approach towards these vulnerable communities. 

REFERENCES: –

1. “International Humanitarian and Refugee Law” by Puneet Pathak, 2023
2. https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/international-organization-migration-iom_en#:~:text=International%20Organization%20for%20Migration%20(IOM),-International%20Organization%20for
3. https://www.unrefugees.org/refugee-facts/statistics/#:~:text=35.3%20million%20refugees,protection%2C%20a%20majority%20from%20Venezuela
4. https://indiankanoon.org/doc/711652/
5. https://indiankanoon.org/doc/1593094/#:~:text=They%20have%20been%20detained%20under,as%20refugees%20with%20the%20UNHCR.
6. https://www.refworld.org/jurisprudence/caselaw/indhc/1989/en/13688
7. https://www.asylumlawdatabase.eu/en/content/uk-islam-ap-v-secretary-state-home-department-regina-v-immigration-appeal-tribunal-and