Non-Citizen News Roundup

Map showing border enclaves, via The Economist

 India/ Bangladesh: People living on the border region's "enclaves" have been stateless and living in destitute poverty for nearly 60 years, but have seen their living conditions deteriorate even further as river waters rise and engulf their villages. Now, villagers from both sides are protesting to ask the government to implement a border enclaves exchange that will swap territories and make it possible for people to gain citizenship and access to basic public services.
People Stateless at India-Bangladesh border (with video) (via IBN)
Border Agreements- The End of the Enclaves  (via The Economist)

 Australia: Everyone is still miffed about the abandoned Malaysian Refugee Swap solution. The public is angry about the alleged $4.6 million in preaparatory costs for the plan. Tbe Prime Minister isn't thrilled about leaks about the plan from the cabinet making its way to the media. And would-be refugees are probably pissed that the shelving of the deal also means an additional 1000 yearly spots for refugees in Australia are off the table. In sum, what a disaster.
 Government defends cost of Malaysia Solution (via ABC Sydney)
 PM Guillard warns against cabinet leaks (via Sydney Morning Herald)

California: Governor Jerry Brown signs in a new package of laws aimed at helping undocumented migrants. Most importantly, he signed a state-version of the DREAM Act that makes it possible for undocumented students to apply for student aid. As the NY Times puts it,  "With these new laws, California is telling immigrants not to stay hidden but to get educated and keep working hard." What a contrast to the message being sent in Alabama.
Brown Signs California Dream Act (via LA Times)
A Sensible Path in California (via NY Times)

Nubians in Kenya- New Case on Birth Registration

Nubian family, ca. 1940, via Nubians in Kenya

There has recently been a very interesting case to come out of Africa that deals with the persistent refusal of the Kenyan government to recognize the nationality of a minority group that has been present in the country for almost a century. The case, Nubian Minors v. Kenya, was brought to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) by the Institute for  Human Rights and Development in Africa along with the Open Society Justice Initiative. The ACERWC is an institution that deals with interpreting and deciding on issues related the OAU's African Charter on the Rights and Welfare of the Child, Africa's answer to the Convention on the Rights of the Child.

Like the CRC, the African Charter provides explicit nationality and legal personality rights for children. Article 6 requires that every child is entitled to a name, a nationality, and birth registration. Further, children who would otherwise be stateless are entitled to the nationality of the country in which they are born. The Nubian Minors case was brought under these provisions, along with the non-discrimination clause and several other collateral clauses.

Nubians from KAR

The Facts

The story of the Nubians of Kenya is old and interesting. Apparently, this group came from the Nuba mountains in present-day Sudan, and were forcibly conscripted by the British in the 19th century into the King's African Rifles. After service, they requested to be sent back to Sudan, but were instead allocated land in Kenya, namely, Kibera, right outside of present-day Nairobi. Next best thing, right? Wrong.

Now here is the tricky part: having been moved to Kenya, most of these people held no Kenyan citizenship. The British also refused to grant citizenship. At the time of Kenyan independence, in 1963, nothing about the Nubians was settled- they were still considered aliens by the government, who also refused to recognize Nubian title to the Kibera settlement. To make matters worse, these status problems were passed by the Nubian Kenyans down to their children. It is allegedly difficult in Kenya to register children in the absence of the parent's identity documents (which as we know, many people of Nubian descent do not possess.) And other human rights organizations have noted discriminatory practices in birth registration, such as refusing to issue a birth certificate. Further, children in Kenya do not receive proof of citizenship until the age of 18, at which point many children of Nubian descent find the fairly straight-forward procedure to verfiy their nationality complicated by discriminatory procedural barriers and delays. The result? Generations of legally invisible and de facto stateless people.

The Case

After considerable efforts to obtain remedies at the state level (see section 15-22 of the Decision) the applicants were able to have the case heard on the merits. The first issue the Court considered is whether the ACRWC grants citizenship from birth. While the reading of art. 6(1) doesn't provide a right from birth, taking into consideration the best interests of the child principle, this is a logical reading. Further, statelessness is particularly devastating for children.

Whatever the root cause(s), the African Committee cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherits an uncertain future. For instance, they might fail to benefit from protections and constitutional rights granted by the State. These include difficulty to travel freely, difficulty in accessing justice procedures when necessary, as well as the challenge of finding oneself in a legal limbo vulnerable to expulsion from their home country. Statelessness is particularly devastating to children in the realisation of their socio-economic rights such as access to health care, and access to education. In sum, being stateless as a child is generally antithesis to the best interests of children. (at 46)

 Having said that, the Committee considered several possible arguments by Kenya. First, the fact that some Kenyans of Nubian descent had acquired citizenship through the normal legal procedure. The Committee considered that this did not destroy the central argument, that a significant portion had not, which would be enough to violate their obligation. Second, Kenya could have argued that the Nubian children may be entitled to Sudanese citizenship. In this case, the Committee responded, the government could have tried to cooperate with Sudan to facilitate such granting of nationality, but there was no evidence that they had done so (at 51). In sum, they had violated their obligation to provide children with nationality, birth registration, and to help them avoid statelessness, all in violation of the key provisions of Article 6.

As to the discrimination claim under ACRWC art. 3, the Court found prima facie discrimination. The government's absence made it impossible for them to meet the burden of proof with evidence that the discrimination served a legitimate end, however the Court looked for explanations, and in the end relied on findings by the Kenyan National Commission on Human Rights, that  

“the process of vetting… Nubians… is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society” (at 56)

 In the subsequent paragraphs the Court found that these violations also deprived the Kenyan children on Nubian descent of their right to health and their right to education. In other words, positive findings on all fronts for the applicants.

Follow Up

Of course, it remains to be seen what the impact of the case will actually be on affected communities. Kenya was instructed to come up with an implementation plan, which would have to include some legal mechanisms to register extant stateless minor  Nubians as Kenyan, as well as a method of birth registration and subsequent acquiring of citizenship that is non-discriminatory and functioning.

In the meantime, lawyers have some excellent new case-law. This case speaks to, specifically:

• the fact that statelessness is not "in the best interests of the child"
• the link between birth registration and preventing statelessness
• the impact of statelessness and legal invisibility on the ability of a child to access his health and education rights
• additional barriers to birth registration and citizenship on the basis of ethnicity/ origin of parents can constitute discrimination.

All in all a big win, and a situation that lawyers interested in statelessness and legal invisibility will definitely want to keep an eye on.

You can read more on the case here: Open Society Justice Initiatives- Nubian Minors v. Kenya

And for a cool multi-media website on Kenya's Nubians, check out this online exhibit by Greg Constantine: Kenya's Nubians- Then and Now

Alabama Latinos protest "Juan Crow" Immigration Law

Scenes from an protest in June, photo by Mark Almond/ The Birmingham News

Good news out of Alabama today, as Latinos across the state stay home from work as a show of solidarity against the dreadful, recently upheld immigration law (HB-56). The law, which is likely the most punitive in the country, requires a number of harsh measures aimed at making the state as uncomfortable as possible for undocumented migrants. As its written the law has provisions that make it a crime to transport undocumented immigrants (because you can tell, just by looking at them) and makes it illegal for colleges to enroll undcocumented students (because, once again, university admission counselors are perfectly equipped to make immigration status determinations.)  Most importantly, the law requires police to verify immigration status during many routine encounters, such as traffic stops. Not only that, but in a move that brazenly violates federal jurisprudence, the law requires schools to verify immigration status while enrolling children. The effect of these measures is to encourage police harassment of Latinos, to cause children to stay home from school, and to reduce an entire segment of the population to living in fear and uncertainty.

That's why its very encouraging to see Latinos across the state- both documented and undocumented- staying home from work to peacefully protest.

"We want the mayor, the governor, this judge to know we are part of the economy of Alabama," said Mexican immigrant Mireya Bonilla.

Its important to note here that even US citizens are participating in this protest, according to reports. Given the nature of immigration status, it is more than clear that a law that provides for measures against people "suspected of being illegal" is code-wording for  Latino. State governments need to know that when they pass laws that broadly encourage racial profiling and discrimination against Latinos, that the legally-present won't keep silent so as not to be lumped in with the undocumented.

CBS News: Hispanics Skip Work to Protest Immigration Law
The Birmingham News: Looking at the Human Side of Alabama's Immigration Law

Sweden: Refoulement of Kurds to Iran?

According to Change.org, 20 Kurdish refugees have sewed their mouths shut in Sergels torg while facing imminent deportation to Iran.

With their lives on the line, the asylum seekers -- all of whom are documented refugees with the United Nations -- have taken the extraordinary step of going on a hunger strike to protest their deportation. Several of them have been hospitalized after collapsing from hunger. Those remaining have sewn their mouths shut.

This isn't the first time that Sweden has been in the limelight for  deportation of Kurds. Last January UNHCR spoke out against the deportation of Iraqi Kurds back to some of the most dangerous regions in Iraq, and stated that they most likely should have been covered by the Refugee Convention or the Qualifications Directive.

Now there is a petition to the Swedish Migration Board to save these Iranian Kurds from being deported, and it already has more than 36,000 signatures. You can add yours here.

Non-Citizen News Round Up

Photo by Sandy Huffaker for the NY Times

US: Programs aimed at helping settled refugees to start their own farms are gaining traction across the country, as well as making farmer's market offerings more diverse.
When the Uprooted Put Down Roots (via the NY Times)

Australia: UNHCR endorses the controversial Malaysian refugee swap deal? According to this article, the High Commissioner feels refugees are better off in Malaysia, where at least they can work.
Australia's Malaysia Refugee Swap Deal Gets Support from UNHCR (via All Headlines News)

Cuba: Numbers of emigrants going up, likely due to stalling economy
Number of Cuban Migrants Has Surged in 2011 (via Miami Herald)

Mozambique: UNHCR will follow up last years program of mapping and documenting statelessness with a program this year to register Mozambique-born stateless persons. An estimated 2 million people are at risk.
UNHCR to Support Registration of Stateless People (via All Africa Global Media)

Norway: As "paperless" youth gain increased intention in Norway, some are calling for the revival of the Nansen Passport.
Effort Grows to Revive Nansen Passport (via Norway International Network)

Ryan Gosling on immigration...

Like this shoutout to Margot Canady, via  Jezebel.

Human Rights Watch on Immigrant Injustice in the US

Grace Meng, a researcher from Human Rights Watch, has a great commentary today about the decline in living conditions for undocumented immigrants in the United States.
We already know that the conditions in states that have passed punitive immigration laws (eg: Alabama) have deteriorated significantly, but Meng points out that the Obama administration's stance has the ICE tormenting undocumented people all over the country.

Undocumented immigrants have long been afraid of government officials, but that fear is now translating into a fear of the justice system. Immigrants avoid going to court in communities from Fresno to Rochester, even to pay traffic tickets or to help a family member with translation, because Immigration and Customs Enforcement agents like to hang out by the courthouse. In North Carolina, a victim of domestic violence told me she would never again call the police for help after being questioned more about her immigration status than her safety the first time she called.

Naturally, this fear is likely to continue until Congress passes some form of Comprehensive Immigration Reform. In the meantime, we will have to hope that SCOTUS gets its hands on the Alabama law or one like it and strikes down punitive laws like this for good.

UNHCR launches new campaign against Statelessness

A photo by Greg Constantine for a UNHCR photo essay on statelessness.

Just in time for the 50th anniversary of the 1961 Convention, UNHCR announced today that they are launching a new campaign to combat statelessness.

"These people are in desperate need of help because they live in a nightmarish legal limbo," says António Guterres, the UN High Commissioner for Refugees. "This makes them some of the most excluded people in the world. Apart from the misery caused to the people themselves, the effect of marginalizing whole groups of people across generations creates great stress in the societies they live in and is sometimes a source of conflict."

So that's good news, right? The campaign will apparently entail renewed efforts to encourage states to sign the statelessness convention, challenges to citizenship laws that left people out after state succession, and publicity to clarify definitions and get the issue "on the public agenda."

It's heartening to see that statelessness is receiving so much attention lately! Let's hope the mounting pressure from UNHCR has an impact!

Consequences of statelessness/ legal invisibility

The inability to prove your own nationality can be a major obstacle in realizing even the most basic of human rights. For example, in many ex-Yugoslav states, all citizens of a certain age are required to hold a valid state-issued identification card which is necessary for accessing a number of social services. The application for the card requires documents that a stateless or legally invisible person is unlikely to possess, such as birth certificate and proof of citizenship. Without this card or other forms of identification, living a normal life is difficult. In Macedonia, for instance, ARKA writes that Roma without verifiable citizenship or birth certificates are denied access to “education, health services, housing, formal employment, financial services social security, justice, property rights, legal marriage, and participation in the democratic process.”  And of course, without a passport, individuals are also restricted in their freedom of movement.

The problem has significance at systemic levels, as well. The lack of accurate statistics on birth rates can mean insufficient budgetary allocations for school and social welfare systems. Additionally, municipal planning policies for housing and basic amenities such as water may be skewed by a lack of official housing registrations. And when the government doesn’t have accurate information about the population, employment policies also suffer. This is a particular issue for populations who are vulnerable to employment discrimination, as Roma often are.

The repercussions also extend to democracy and public safety. Without identification, a significant portion of the population cannot vote or be elected to public office. Further, they are far more vulnerable to practices such as human trafficking and child prostitution. Without official proof of age they may also be at risk for child labor and early marriage. And more generally, without identification the government at every level cannot keep track of this population, or take precautions to ensure their safety. And, when parents are stateless, they are far more likely to pass this status down to their children, since identification is required to register birth and paternity in many cases.

So in sum, statelessness means being paralyzed- unable to access your rights and improve your life- and, like a communicable disease, you have to watch your children go through the same frustrating process without being able to help.

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Photo via UNHCR.

Statelessness versus Legal Invisibility under International Law

International law identifies two types of stateless people, de facto and de jure. International standards such as the Statelessness Convention are primarily designed to protect de jure stateless persons, ie, those who are legally without citizenship from any country. However, it has long been acknowledged that this definition accounts for only a portion of the individuals who are not receiving the protection of a nation state.

“De facto stateless persons” has been used in the past to refer to those individuals who do not meet the definition of the Statelessness convention, but other than being defined in the negative this term is not widely agreed  upon. A group of UNHCR experts recently defined de facto stateless persons as “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.” The “valid” reasons for its ineffectiveness generally connect to the reasons for one becoming a refugee under international instruments. For instance, being unwilling to avail oneself of government protection due to persecution on the basis of race, religion, political views, or membership in a particular social group. Escape from genocide or conflict are likely other valid reasons. 

 

The Equal Rights Trust has adopted a more expansive definition. In their “Draft Guidelines on the Detention of Stateless Persons” they write that “a person who has a legal nationality which is not effective- for example, a person who does not benefit from consular protection from his or her country of evident nationality- is considered de facto stateless.” The difference between the two definitions is that one indicates that the de facto stateless person is always at least a refugee, while the other one acknowledges that many individuals lack state protection in a way that falls short of outright persecution.

Regardless of which definition is accepted, it is doubtful that states are legally bound by the Stateless Convention to protect de facto stateless persons. However, many have argued that they should receive the same level of protection, since they are largely facing the same risks. UNHCR has on occasion argued that both categories should receive state protection and a 2010 UNHCR report on the topic argues that de facto stateless persons fall under UNCHR’s mandate, so long as they are outside of their country and unable to receive protection from their home country.

  

Legally Invisible Persons

If de facto stateless persons receive limited protection in comparison to de jure, then even less protected are individuals that fall short of either definition. For example, individuals of indeterminate nationality, or unable to prove their nationality, or inside the country of their origin but unable to receive the protection connected to citizenship.

For the purposes of this blog, individuals barred from enjoying effective citizenship for any reason (short of voluntary disavowal) shall be referred to as  “legally invisible,” a term borrowed from Praxis, a Serbian NGO that works with many such cases. As Praxis points out, legally invisible persons “do not have the possibility to live their lives like other citizens… [they are] not recognized as legal subjects.”  Since the distinction between “legally invisible” and “stateless” may be hazy in some cases, the following list attempts to differentiate between the two groups.

Stateless Persons:

• Are not considered citizens by any state
• Cannot, without hardship, produce documents allowing them to easily gain or regain citizenship
• May have been deprived of citizenship by an act of state, or by the dissolution of the state
• Are in most cases outside their state of origin
• Are, in the case of de facto stateless, unable or unwilling to receive state protection because of recognized reasons, such as due to persecution

Legally Invisible Persons:

• Have a valid claim to citizenship
• Cannot prove this claim due to a number of reasons, such as lack of access to documents, complexity of registration process
• May have automatically acquired citizenship at birth or through other operation of law
• May be inside or outside their state of origin.

In sum, for a person to be stateless, they need to have no citizenship, ineffective or otherwise. Since a determination of this type requires, at the very least, information from both the records of the person and the records of the government, it is not immediately apparent whether a person seeking assistance is de facto or de jure stateless, or legally invisible. However, since the risks for both groups overlap heavily, it makes sense in my opinion to address the problems together, while keeping in mind that these concepts are different and are not totally agreed upon under international law.

Denmark: Points and Palestinians

Denmark's ousted Immigration Minister

For the last few weeks Denmark has been rocked by a political scandal featuring leaked documents, intrepid reporting, a shady minister and... stateless Palestinians?

That's right. Denmark, being a signatory to the 1961 Convention on the Reduction of Statelessness, is required to offer citizenship to children born in the country who would otherwise be stateless. On the contrary, it was recently revealed that a number (36, to be exact) of youngsters of Palestinian heritage had been rejected when they applied for citizenship- and that far more had never been informed about their right to become Danish.

Worse, it turns out that this human rights violation was more than just an oversight. The Immigration Minister, Birthe Hornbech, when questioned earlier in the month about her possible involvement, denied any prior knowledge of the mistake and claimed the rejections occurred under earlier administrations.  However, leaks soon made their way out that confirmed that Hornbech knew about the error- as far back as 2008- and failed to inform anyone. She even asked for and recieved legal advice that directly contradicted Denmark's procedure. Now, being forced to file a report at the prompting of a media investigation, Hornbech has been fired as the government tries to distance itself from her actions. But so long as its just an isolated incident, alls well that ends well, right?

Or, one could see this in the context of further worrying anti-immigrant developments that have been occurring in the country in the last year. For instance, in January the government announced a new point system that would make the country's already strict requirements for foreign spouses even tougher. It requires, among other things, that the Danish spouse put up a large sum of money, that both spouses be 24 years old, and that the foreign-born spouse pass a language and knowledge test. In other words, they are trying to make it extremely difficult for Danes to marry foreigners, and possibly violating the ECHR by interfering in the right to private and family life.

These developments are worrying, and are significant of a larger swing to the right throughout Europe. The question is, to what extent can countries' prior generous human rights commitments restrain them from making the temporarily popular decisions that violate them? Denmark would be a good case to watch.

COE Commish on Statelessness

Thomas Hammarberg, the Council of Europe's Commissioner for Human Rights, has an excellent record so far of bringing attention to Europe's bete noir's: the war on terror, Roma, migrants, and now, the problem of statelessness.

In a speech to the CoE during a conference on nationality, Hammarberg highlighted the problem of statelessness throughout Europe, but especially among the Roma.

A great number of stateless persons are Roma. The problem exists in many countries, but it is particularly acute in the Western Balkans, notably in the countries of ex-Yugoslavia. Several thousand persons, among them many Roma, became victims of the decision in Slovenia in 1992 to erase non-Slovene residents from the Register of Permanent Residents. Many had moved to Slovenia from other parts of Yugoslavia before the dissolution of the federation. It was only in 2010 that this unjust regulation was changed through amendments to the law.

In other states in the Balkans, there are Roma who are without citizenship or even basic identity papers. Those who have moved from the former Yugoslav Federation to other parts of Europe often lack personal documents and live in legal uncertainty. They are de facto stateless. Their newborn children are frequently not registered and risk losing their right to apply one day for citizenship as they cannot prove legal residence in the country

Two important things to note about this speech:
1) He mentions the Slovenian "erasure" problem, the subject of the Kuric case currently referred to the Grand Chamber. ( Kuric and others v. Slovenia App. no. 26828/06). Sounds like he endorses the ECtHR's finding of wrong-doing on the part of Slovenia. (Article 8. if you'll recall.)
2.) He brings up the problem of unregistered (or, "legally invisible") people, and their children who do not receive birth registration, and implicitly endorses them as de facto stateless. Interesting stance.

We'll definitely want to keep an eye on Hammarberg, and the CoE to see what steps they take, if any, to back up their stance on statelessness in Europe.

LGBTQ Asylum II:Case Law- USA

The last post discussed the 1951 Convention and its "membership in a particular social group" clause, concluding that this is most likely the best fit for LGBQT asylum claims, and was perhaps even contemplated as such by Convention drafters. In this installment, we'll review some important case law where states used the clause to grant protection to applicants.

USA: Matter of Acosta (1985)

In Acosta, a 36 year old Salvadorian man requested leave to remain in the USA during a deportation hearing, applying for asylum. The Judge denied in the first instance, stating that he had failed to meet the burden of proof for his claim, and he appealed to the BIA (Board of Immigration Appeals.) His argument rested on the fact that he was a member of a group of Taxi drivers that was being harassed by anti-government guerillas, whom eventually directly threatened his life. The Court had to address: does this count as a "social group"?

The BIA held that members of particular social group usually share a “common, immutable characteristic” or sometimes a “shared past experience.” More to the point, the Court held that the common characteristic “must be one that the members of the groups either cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” (emphasis mine)

Although not meant to address LGBQT concerns, this definition (the "immutable" principle) is useful because it accommodates much of the debate surrounding sexual orientation. Although it is increasingly believed that sexual orientation is an innate characteristic that cannot be altered by, for example, religious conversion or therapy, it is all the same problematic to sweep out individuals who may feel that their sexual behavior is a choice, but one that is an essential part of their identity. This definition helpfully leaves the debate out of the question by including characteristics that, regardless of their immutability, should not be forcibly eradicated.

Unfortunately, it also leaves the door open for Judges to opine that sexuality is something that both can and should be changed by the applicant. And in the US, this opinion is unfortunately not so uncommon.

Not Gay Enough for the USA

Another big problem with the US asylum scheme for LGBQR applicants is covered in Deborah Morgan’s article "Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual Orientation Asylum Cases" (2006) . Morgan focuses on a United States asylum case that pointed out some of the flaws of the immigration system when dealing with an applicant that did not fit into preconceived sexual orientation notions.

 In the Mohammed case, the asylum seeker was a gay Iranian man seeking asylum in the United States after many years of sexual abuse, discovery by the Iranian government (who sometimes punishes homosexuality with death) and further abuse and disownment by his family.  He filed an asylum claim in the United States, and went through the standard interviews and procedures that accompany the asylum process there. However, “Mohammed” had a problem: he did not have sufficient evidence of his sexual orientation. He did not appear “feminine, ” was not openly “out” in the United States where he lived with his Iranian-American partner, and did not have evidence of any of his participation in activities that would have confirmed his identity, such as “participation in gay pride parades.”  (Yes, seriously.) The immigration judge concluded that, “Mohammed was able to hide his sexual orientation well enough to pass as a heterosexual, therefore upon returning to the Iran he could do the same and not have any further problems.”  Unfortunately, this case is just one of many where asylum was denied because of person’s perceived ability to pass or non-demonstration of gay stereotypes.

Not only is this standard absurdly unfair, it also goes far beyond what is required by the 1951 Convention. The Convention requires a nexus between an individual’s membership in a particular social group and his reasonable fear of persecution. Why should it be necessary, then, to match the certain characteristics that this social group might have in the receiving country? An analogous situation would be the Court requiring a person fleeing persecution based on their religious identity to demonstrate that they live out their religion in the receiving country in the same way as other members of that religion do in that country. This additional hardship is likely to cause problems for people coming from non-Western countries, where the LGBT lifestyle is lived very differently.

In sum, the US has some excellent and broadly useful case law on social group membership that can be very beneficial for LGBQT asylum claimants. On the other hand, the perceptions and stereotypes of individual Judges reflect the same ones of the rest of the society, and can unfortunately present a significant obstacle for individuals from non-Western countries.

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For more on Acosta, see: Susan B. Goldberg. Give Me Liberty or Give Me Death: Political Asylum and the Global Persecution of Lesbians and Gay Men. 26 Cornell Int’L L. J. 605, 613-615. (1993).

For more on LGBQT Asylum claims in the USA, see: The Difficulties of US Asylum Claims based on Sexual Orientation, Swetha Sridharan, via MPI.

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)

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.

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