REFUGEE PROTECTION UNDER THE 1951 REFUGEE CONVENTION: EXCERPTS FROM THE REFUGEE CONVENTION, CASE STUDIES AND RESOURCES

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1 : EXCERPTS FROM THE REFUGEE CONVENTION, CASE STUDIES AND RESOURCES Convention Against Torture Training and Accreditation Programme Hong Kong Bar Association 11 June 2017 Martin Jones Senior Lecturer in International Human Rights Law Centre for Applied Human Rights University of York

2 TABLE OF CONTENTS DEFINITION OF REFUGEE 2 EXAMPLES OF REFUGEE RIGHTS IN THE REFUGEE CONVENTION 3 CASE STUDY 1: MYA 5 CASE STUDY 2: AHMED 6 CASE STUDY 3: BERTA 7 RESOURCES 8

3 DEFINITION OF REFUGEE Excerpted from Article 1 of the Convention relating to the status of refugees of 1951: Article 1(A)(2) For the purposes of the present Convention, the term "refugee,, shall apply to any person who [a]s a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Article 1(D) This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention. Article 1(E) This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. Article 1(F) The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that. (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. 2

4 EXAMPLES OF REFUGEE RIGHTS IN THE REFUGEE CONVENTION Article Wage-earning employment 1. The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment. 2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions: (a) He has completed three years' residence in the country; (b) He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefit of this provision if he has abandoned his spouse; (c) He has one or more children possessing the nationality of the country of residence. 3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes. Article Self-employment The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies. Article Public education 1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education. 2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships. Article Freedom of movement Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances. 3

5 Article Expulsion 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. Article Prohibition of expulsion or return ("refoulement") 1. 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. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. 4

6 CASE STUDY 1: MYA After marrying at a young age, a young woman (Mya) suffered domestic violence at the hands of her husband in Myanmar. She spoke with several close friends and one civil society organisation assisting victims of domestic violence about her situation; all those she consulted told her that her situation was unfortunate but could not be remedied. She fled her new family home and travelled to Malaysia. She entered the country irregularly, along its northern border with Thailand (after spending some time with her sister who lives in Thailand). After entering Malaysia, she worked for three years as a live-in caregiver for an elderly man using a false identity card and a subsequently acquired Burmese passport. More recently Mya left (and re-entered) Myanmar as a result of the terminal illness of her mother. She remained in Myanmar for one month and assisted with the organisation of the funeral of her mother which was attended by her estranged husband. On her return to Malaysia, she was accompanied by her young daughter (who is now enrolled in a community based school in Malaysia). Her husband did not give his approval to his daughter leaving the country and is deeply unhappy about this action. She has recently been brought to the attention of Malaysian immigration authorities and has been threatened with deportation. What issues do you identify that are relevant to the determination of whether Mya is a refugee? What further information do you need about Mya s situation in Myanmar? How do her irregular activities, the passage of time, and/or the presence of her daughter with her in Malaysia affect your consideration of Mya s situation? 5

7 CASE STUDY 2: AHMED Ahmed is a young man from Syria. He is from the town of Raqqa and was training as a medical doctor in Aleppo before his departure. He participated in several (very small) demonstrations against government environmental and public health policies in the years leading up the Arab Spring. Once the anti-government rebellion began in 2011, he surreptitiously provided medicines to other doctors who ran secret medical clinics for victims of government violence. His medical supervisors became suspicious of his loyalties and suspected he was stealing medicine. Ahmed was arrested on two occasions (once before and once after the Arab Spring). In both cases he was arrested as part of mass arrests near anti-government demonstrations and detained for less than one week. While the conditions of his detention were deplorable, he was not tortured. He traveled to the UK as a tourist, after obtaining a visa after a period of residence and employment in Jordan. He believes he may have been expelled from his university though this is hard to discern as his university has since closed. Were he to go back to Syria he would almost certainly face immediate conscription into the Syrian army (to which all young males are subject) as his exemption due to his studies has ceased; he would likely be required to serve as a doctor in a military hospital for (government) victims of the civil war. His temporary status in the UK is renewable but he wishes to immediately seek asylum. What issues do you identify that are relevant to the determination of whether Ahmed is a refugee? What further information do you need about Ahmed s situation in Syria? How does his past activities and mistreatment and his prospective desire to avoid military conscription affect your consideration of Ahmed s situation? 6

8 CASE STUDY 3: BERTA Berta was born into an indigenous family in Honduras. She grew up in that country during a period of unrest and with a mother who was very active in her community. As a student, Berta became politically active at her school and co-founded an organisation to promote indigenous rights. She has also given her support to a range of other human rights issues, including women s rights and LGBTI rights. Over the last decade, Berta has been involved with local indigenous groups in their opposition to a hydro-electric development project that will displace indigenous peoples and damage the environment. The project is financed by an international development bank and backed by an international consortium, including overseas and local corporations. The Honduran government has conducted an environmental assessment of the project, denies any rights violations, and fully backs the project as an important source of jobs and as providing important and urgently needed infrastructure. Her long history of activism has given Berta an international profile (she has received awards as an environmental activist and as a human rights defender). Her efforts to oppose the project have resulted in substantial delays and financial losses by some of its corporate backers. In recent years, the levels of threats (by unidentified individuals but who Berta suspects are tied to corporate interests involved in the development project) has escalated. The Honduran Courts have recognised the risk posed to Berta and have issued protective orders (as have the human rights institutions of the Inter-American system). The Honduran government generally blames renegade individuals and private interests for any threats to Berta. What issues do you identify that are relevant to the determination of whether Berta is a refugee? What further information do you need about Berta s situation in Honduras? How does your understanding of the agent of persecution and the reasons for persecution affect your consideration of Berta s situation? 7

9 RESOURCES Legal framework of the international refugee regime: Convention relating to the status of refugees, 189 U.N.T.S. 150, entered into force April 22, Protocol relating to the status of refugees, 606 U.N.T.S. 267, entered into force Oct. 4, Statute of the Office of the United Nations High Commissioner for Refugees, G.A. res. 428 (V), annex, 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1775 (1950). Regional refugee regimes: Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 U.N.T.S. 45, entered into force June 20, Cartagena Declaration on Refugees, Nov. 22, 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, at ( ), 17 April European Union Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) Council of the European Union, O.E.U. L337/9 to L/337/36 (20 Dec 2011) [the EU Qualification Directive ]. Interpretation of the definition of refugee: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/IP/4/Eng/REV.1 (1992). UNHCR, UNHCR Guidelines on International Protection, HCR/GIP/02/01 to 12 Websites: Caselaw and interpretative guidance: UNHCR RefWorld: refworld.org Country of origin information: European Country of Origin Information Network: ecoi.org UK Visas and Immigration Country Guidance: Country Guideline Determination caselaw from the UK UT (previously AIT): 8