Thursday, September 30, 2010

Does the Refugee Convention Provide rights for non-Refugees?

The most elementary right owed to refugees is that they not be returned, or “re-fouled” to their home state where they are endangered. The classic expression of the principle is found in the 1951 Convention: “No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a certain social group or political opinion.”[1] The principle of non-refoulement is becoming, if it is not already, considered a “peremptory norm” of international law that binds all states. [2]     

In earlier treaties and in the original drafts of the 1951 Convention, the duty of non-refoulement applied only to individuals lawfully present in the state, “refugees who have been authorized to reside in [state party] regularly.”[3] But a shift occurred during the drafting, probably related to the fact that so many refugees were already present in the member states, that a restriction requiring legal entry would have the effect of delegitimizing the majority of valid refugees already present. It seems that parties had already acknowledged this fact, since the discussion of clandestine entry in the travaux is limited to stating that that it is acceptable.[4] Simply put, under the under the principle of non-refoulement any removal at all that puts the refugee in danger is prohibited, whether classified as deportation, forced repatriation, or any other name.[5] This applies to individuals regardless of whether they have been recognized as refugees by the state apparatus.[6] In other words, the principle of non-refoulement attaches at the same moment that you become a refugee under the 1951 Convention, and neither the status determination nor the attaching obligation is dependant on state classifications. This fact is important for undocumented migrants for two reasons

First, it legitimizes illegal entry in certain cases. As a matter of fact, the duty of non-refoulement only applies to individuals already present in the receiving state. As Hathaway explains, “if the duty of non-refoulement under Art. 33 of the Refugee Convention can be claimed only by persons who are, in fact, refugees, then it is not a right that inheres in persons who have yet to leave their country… because Art. 1 of the Convention defines a refugee as a person who resides‘outside the country of his nationality.’”[7] Opening the door to illegal entry is an important feature in and of itself, as it demonstrates that there are occasions in international law when the territorial jurisdiction of a state cedes precedence to the needs to an individual.
The second importance of non-refoulement as it relates to clandestine entry is that it creates a presumption that individuals entering a country illegally could potentially have a claim to asylum. This presumption in turn creates a need for a minimum standard of administrative procedures prior to expulsion that could be beneficiary for a person regardless of his or her status.

Status Determinations
If an individual meets the definition of refugee under the 1951 Convention then he or she is a refugee, regardless of whether or not his or her host government or any other body finds otherwise. The 1967 Protocol does not list formal status recognition as a requirement[8] and the Handbook on Procedures and Criteria for Determining Refugee Status (“the Handbook”) explicitly states that a person becomes a refugee at the instant he or she fulfills the criteria. “Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”[9] This being the case, states may not expel individuals without some basic form of procedural due process to determine the validity of their asylum claim, lest they violate the principle of non-refoulement.

UNHCR recognizes that a variety of procedural systems could adequately determine refugee status, and therefore does not suggest one method for doing so, but does lay out a set ofrecommendations for minimum standards when dealing with refugee status determinations that would comply with the Convention.[10] At the least, individuals should have an opportunity to speak to an official familiar with the State’s international obligations, have access to an interpreter, and the ability to remain in the country pending adjudication of his application, as well as the opportunity to appeal at a higher court.[11]

While it would seem that a majority of 1951 convention states do comply with UNHCR’s recommendation in some form, the effect of these basic due process provisions is beneficial to undocumented migrants regardless of whether or not they are enacted. First, they provide an opportunity to engage with the receiving state’s legal system that may lead to residence status, even in the absence of a refugee determination under the 1951 Convention. Second, in States that do not comply, the lack of these standards is a foothold for NGO’s and human rights treaties to attack the treatment of migrants in general.

*Excerpted from a previous memo on the subject of non-refoulement and rights for undocumented peoples.


[1] 1951 Convention at art. 33
[2] Daniel Bethlehem and Sir Elihu Lauterpacht "The Scope and Content of the Principle of non-refoulement: Opinion", in Refugee Protection in International Law 107 (Erika Feller, Volker Turk, Frances Nicholson eds., 2001)
[3] Convention Relating to the Status of Refugees, 159 LNTS 3663, Oct. 28, 1933 at Art. 3.
[4] Collected Travaux at A/CONF.2/SR. 5, 16 
[5] Bethlehem and Lauterpacht supra note 126 at 112.
[6] Id at 116
[7] James C. Hathaway. The Rights of Refugees under International Law. 307 (2005)
[8] 1967 Protocol
[9] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees ¶ 28, UN Doc.  HCR/IP/4/ENG/REV.1.
[10] Id at 191
[11] Id at 192 (i)-(vii)

Wednesday, September 15, 2010

LGBQT Asylum Part 1- a good fit under "particular social group?"

As states like Uganda pass restrictive measures against gays and lesbians, and countries all over the world continue to harass people that dare to be openly transgendered or gay, it is worth asking whether the 1951 Refugee Convention accommodates LGBQT asylum claims. My opinion? It should, easily, but the practices of receiving states vary, and often reflect their ambivalence with their own LGBQT populations.

"Particular Social Group"
The most vague group protected under 1951 Convention’s refugee definition is “member of a particular social group.” In recent years it has been invoked as a basis of asylum by a range of people both successfully and unsuccessfully, including but not limited to, victims of Female Genital Mutilation (See: Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)), ex-gang members (see: INS v. Elias-Zacarias, 502 U.S. 478 (1992)), the disabled , and a range of LGBT individuals. But what exactly does this phrase mean?

The Refugee Convention Handbook states, “a ‘particular social group’ normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality (77)." As this definition indicates, the “social group” category is rather broad. The travaux preparatoires is scarcely more helpful. “In the first place, experience had shown that certain refugees had been persecuted because they belonged to particular social groups.  The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included (14)” With so little elaboration, it is difficult to determine what exactly was contemplated at the time of the group’s inclusion within the 1951 Convention.

However, it's at least possible, if not probable, that persecution for reason of sexual orientation could have been in the mind of the authors of the convention. The other categories tend to roughly correspond to the groups of people that were persecuted under German and Italian fascism, and which had caused large numbers of refugees during the post-World War II period. It could scarcely have escaped the attention of the drafters that alongside Jews, Gypsies, Anarchists and anti-fascist Resistance members, gays and lesbians were also targeted heavily by the Nazis.

Additionally, UNHCR has clarified its position on several occasions, most notably in a 2004 Advisory Opinion to the Tokyo Bar Association. In the Opinion, UNHCR explains that sexual orientation can be a cognizable “social group” under the 1951 Convention. “…In UNHCR’s view, homosexuals can be within the ambit of a social group category, either as a group sharing a common characteristic or because they are perceived as a cognizable group in the society (8)". In addition, the Opinion notes that while not all LGBT individuals are automatically entitled to refugee protection, that persecution can be proved in a variety of ways, including by reference to laws criminalizing homosexuality(4).  

So, it would seem that "membership in a particular social group" is in fact a good fit for many LBQT asylum claims. Stay tuned for part two, when I'll review some relevant case law on the subject.