Asylum Seekers and Refugees in the Contemporary World

David J. Whittaker

• Publisher: Routledge
• Year: 2006
• ISBN:
  9781134236008
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Examining a number of case studies, including Palestinian, Afghan and Iraqi refugees, David J. Whittaker's book provides a balanced introduction to this very controversial subject.

Fuelled by extensive coverage in the media, the issue of asylum seekers and refugees is one of the most talked about subjects in contemporary politics. Whittaker cuts through the emotive language to give an objective introduction to the subject.

Asylum Seekers and Refugees in the Contemporary World discusses the international as well as national implications of the issue, and the book looks in detail at the issue as it has affected Britain and Europe in particular, as well as including material on the UN and its response to the refugee 'problem'.

Including a final statement on the British government's 2005 proposals for dealing with refugees, this volume is essential reading for all students of the history of the modern world and is ideal for newcomers to the subject.

1
Asylum seekers and refugees

Definition, facts, figures

This chapter attempts to trace pathways through the forest of meanings so evident in press and public debate. A number of questions will be considered. In what ways are bona fide refugees and other asylum seekers distinguishable? Fifty years ago an international convention and, later, broadened definitions, set down lines of definition and outlined means of helping the oppressed. A ‘well-found fear of persecution’ was stated to be a criterion for recognising the refugee. What significance can be given to this as a determining factor? Are there ways in which these meanings and approaches have shifted over the years? Are they still valid in the contemporary world?

Human floods

‘Asylum seeker’ is a term heard on all sides today, prominent in newsprint and on television screens, discussed everywhere in parliaments, regional assemblies, women’s associations and working men’s clubs. The meaning the term is given in common parlance is vague, ambiguous, often censorious, and its implications are hotly debated. Over against this difficulty in careful definition is the fearful scenario of millions on the move, in turmoil and danger, deprived of a normal life because of conflict and persecution and pressing inexorably upon the settled communities of the civilised world.

More and more people move around the world than ever before in recorded history, as the next chapter will record. The movements are difficult to gauge with any accuracy but a common estimate is that since 1945 some 50 to 60 million people have been uprooted and left their homes either voluntarily or involuntarily. The so-called ‘zones of anguish’, from which ‘persons of concern’ have flooded, were Europe in the 1950s, Africa in the 1960s, Asia in the 1970s and 1980s and, once more, Europe, particularly since the 1990s. These victims of persecution and conflict seek safety and opportunity elsewhere. Today, there are at least 17 million people in transit seeking some form of asylum—over 6 million in Asia, 4.2 million in Africa, and 4.2 million in Europe. These figures will be examined in detail in the next chapter (Tables 2.1 and 2.2). Probably half of these unfortunates are women and children.

It is difficult to calculate the size of the migrant flood in view of its astonishing diversity and changes in its composition. There will be those desperate to get away from persecution and discrimination whom the world will acknowledge as genuine refugees. Others, the economic migrants, will be searching for a better life and prospects elsewhere. Environmental degradation will force many to leave their homes. Great numbers of people are displaced within their own land, victims of war or political coups or ethnic cleansing. Many will be unable to escape to a friendlier country, remaining holed up in temporary camps or inhospitable regions; others will flee abroad, chancing their fate somewhere as illegal immigrants. Overall, with growing ease of travel, the world is a smaller place, with a chance to get away more easily to knock on other doors. Given this diversity, a search for meanings is vital, though forbidding in its complexity and scale.

The search for meaning

There is, then, every reason to do something about mass migration. All manner of issues are raised—humanitarian, ethical, legal, political. In order to act positively there must be a consensus as to the meaning of the terms used.

In 1945 a Specialised Agency of the recently formed United Nations, the United Nations High Commission for Refugees (UNHCR), was given the task in Geneva of framing a tight definition of the term refugee. This would be a modern, legal enactment of the ancient tradition of furnishing asylum to anyone at risk and danger. The definition devised is the one used today, and given the scale and diversity of human movement it remains more than ever necessary to use it to separate very precisely those who are to be distinguished as victims of persecution. A convention was eventually drawn up after seven arduous months of discussion and published by the UNHCR in July 1951 to give the term refugee a very clear definition, namely:

A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/ her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail himself/her self of the protection of that country, or to return there, for fear of persecution.

The Convention was to consolidate previous international instruments relating to refugees and would provide a comprehensive codification of basic rights. It must be applied to all without prejudice to race, religion or country of origin.

It was ordained that no application for refugee status would ever be allowed from any person found guilty of committing what was considered to be a war crime or a crime against humanity or a serious non-political offence, or if (in terms thought innovative in 1951) he had been guilty ‘of acts contrary to the purposes and principles of the UN’. Such persons were undeserving of international protection and should face justice. (In later years this ruling was to lead to dilemmas for the UNHCR endeavouring to cope with mass streams of people in the Balkans and Central Africa when all too clearly the agents of assassination and genocide must be among those looking for sanctuary.)

There were several essential requirements for refugee validity in the Convention definition of refugee. First, one had to cross a frontier in seeking sanctuary elsewhere, to be recognised as a bona fide refugee. Rather strangely, it seems, the Convention was not to apply to those refugees who were the concern of UN agencies other than UNHCR, such as Palestinian refugees in the Near East (UNRWA). Further, one must be the victim or target of an individual and specific form of harassment; it was not enough to be one of a crowd endeavouring to escape the threat or heat of battle, nor to be merely a member of a group suffering from some form of active discrimination. The life and liberty of an individual was at stake. Second, and quite crucially, there was the existence of a rational and ‘well-founded fear’ that any return to the country of origin would be impossible, resulting in individual harm. This must go beyond presumption to some proof, and the burden of proof would be upon the claimant, although UNHCR would do its best to scrutinise evidence of a prospective risk. Third, and most importantly,

No Contracting State shall expel or return [refouler] a refugee against his or her own will in any manner whatsoever to the frontier of territories where life or freedom would be threatened on account of his race, religion, nationality, membership of a particular group or political opinion.

It was understood by Convention signatories that they would not be required to give permanent asylum to all refugees but, of course, must do their best to ensure adequate and effective protection. As the next chapter records, this proviso has led to many states granting only temporary protection and to encouraging voluntary repatriation when a second or third state is judged to be a ‘safe’ harbour.

The last qualification, known as refoulement, has been much debated since 1951. Even so, there is general acceptance of its over-riding desirability. Two points have been emphasised both by UNHCR and commentators. In the first place, this ruling must not allow any exception, provided that a claimant is not regarded by a host state as a danger to a community or to any aspect of security. A host state must accord any refugee the same treatment and rights as its nationals receive in respect of legislation, right to property, education, housing, welfare benefits and entry to the professions. A special travel passport would guarantee freedom of movement. No refugee must regard himself as outside the law in a country of refuge. Any transgression of that law would render them liable to deportation, if possible, though, to a ‘safe third country’ rather than to a state judged unsafe. Second, and crucially, it was to be a refugee’s actions that would be regarded as hostile by a receiving state rather than any affiliation. Detention, even expulsion, in that case might be the only consequence, although there was to be a right of appeal. (Again, in later years this ruling was to prove troublesome to many governments unsure how far an applicant for asylum was associated with nefarious ideas or schemes.) The Convention was also mindful of the importance of family to a refugee. Governments should take necessary measures to ensure that unity of a family was maintained whenever possible and should take particular care of unaccompanied children. For this and other exigencies, adequate welfare services would be most necessary.

The Convention of 1951 only binds those states (Contracting States) that have signed the documents in Geneva and so are party to it. At present, 140 states out of the 190 United Nations membership have signed in accord. Non-contracting states include a number of Caribbean and southwest Asian states, but the inclusion in that number of significant political players such as Malaysia, Myanmar (formerly Burma), Pakistan and the United Arab Emirates is rather disconcerting to upholders of fundamental human rights. After all, it could be argued that these states have a duty to cooperate with UNHCR since they are signatories to the United Nations Charter whereby they are obliged to cooperate with the Specialised Agencies.

Broadening definition

Events in the later 1950s and 1960s, when many countries were rent by East-West tensions, political coups, social and religious volatility and inter-ethnic strife, soon pointed to a need for broader definitions to take account of multiple menaces to human rights. The original and basic definition was taken rather further in 1967 in a Protocol Relating to the Status of Refugees. This was related to the 1951 Convention in spirit and format but was an independent instrument. A statement from UNHCR itself affirmed that the Protocol ‘fundamentally transformed the 1951 Convention from a document fixed in a specific moment in history into a human rights instrument which addresses contemporary forms of human rights abuse which are properly called persecution’. Certainly the Protocol stressed that the protective regimes of 1951 and 1967 should not be subject to geographical or territorial restrictions or any time restriction but were, in essence, universal in character and operation. The explanation of this ruling is that the Convention drawn up in the immediate aftermath of the Second World War had limited its protective scope mainly to persons who became refugees before 1 December 1951 and as a result of events that had taken place in Europe. Fifteen years later, there was a need to make Convention provisions applicable to the growing numbers of displaced persons everywhere. In every sense, signatory states (States Parties) must undertake undivided cooperation with UNHCR, given that the enactments of 1951 and 1967 were primarily concerned with protection rather than material assistance. (Once more there is a ruling here which was to be overtaken by the sheer scale of material wants of hordes in flight— UNHCR, in liaison with other United Nations agencies and non-governmental organisations, simply had to ensure that refugees remained alive).

Very likely by the mid-1960s such a Protocol was easier to see accepted than in the confusing aftermath of a recent world war. Most major refugee flows were now in the developing world rather than in a lacerated, post-conflict Europe. Decolonisation had brought new states into being and such communities were anxious to stabilise erosion of population and to bring into being schemes for relief for their displaced and disadvantaged people. The industrial states of the developed world were now envisaging programmes for addressing human rights violations on a larger scale. In respect of their evident ‘conscience’, it has to be said that within such states there were now active and vocal champions of refugee need. Perhaps influential too in bringing into being a more evident public concern for dislodged people was the growth of a civil rights movement in the United States undermining exclusionary practices and calling for a new deal for the world’s uprooted. In due course, and by 2003, 145 nations have acceded to the Protocol and now find themselves pledged to a very firm obligation to cooperate with UNHCR in exercising its function of offering a particular individual refugee guaranteed protection, the safeguarding of human rights, a means of transit, and altogether the assurance of an accessible and safe refuge. Signatory states were now given the task of keeping the UN Secretary-General informed as to the extent they were implementing the Protocol through laws, regulations, decrees and actual fieldwork with refugees. Above all, the term recognised refugee (the one to be used) had now been given a widely enhanced significance.

Meanings framed in this manner lay upon signatory states an obligation to offer a particular individual protection, the safeguarding of fundamental human rights, the means of transit and the assurance of an accessible and safe refuge. Most importantly, the recognised refugee will expect and be offered a permanent place of safety. Nevertheless, it has been argued, the refugee claimant becomes subject to decisions by states which may rate their own political agendas higher than humanitarian concerns. There is the point, too, that expanding the definition of ‘refugee’ to include individuals from other endangered groups brings the risk that governments will shut the door on all groups.

What, though, should be done to identify and protect the increasing numbers rendered vulnerable and hapless when political happenings on a grand scale make normal life impossible for an individual, such as has been the case in regions of Africa, in the Balkans and in much of Central and South America? Members of the Organisation of African Union (OAU) came together in 1969 to extend the 1951 definition of refugee, for they were well aware of the unfortunate consequences of civil instability following decolonisation in their new lands. A legitimate understanding of the term ‘refugee’ would be any person who ‘owing to external aggression, occupation, foreign domination or events seriously disturbing public order…is compelled to leave his habitual place of residence’. This broader formulation referring to circumstances threatening ‘life, physical integrity or liberty’ clearly had in mind express provision for persons forced to flee situations of generalised violence and in many ways constituted a mechanism of dealing with en masse refugee movements without individual screening. In north and east Africa at this time there was something of the order of a million people evicted forcibly from their homes. (Again, in later years such movements were to become increasingly common, raising ethical and logistical dilemmas for UNHCR.) A consequence of the expanded definition was that many developing countries anxious to help the oppressed became saddled with a disproportionate burden coping with numbers, material needs and funding. Particularly in Africa, newly independent nations regarded any individual as living within the context of a family as well as a community. A refugee had a responsibility to discharge kinship duties and to maintain family unity if at all possible. Thus, all family members, whether together or separated, should share in a refugee’s valid status on a prima facie basis. This unity was stressed in the Protocol more strongly than in the earlier Convention. If the family were separated, there was to be an expectation that they could be reunited. Refugee definitions on the OAU agenda appear to have had in mind collective concepts more than the rights of a lone individual. In some respects, rights in the developed world appear to be based on the concept of autonomous persons giving priority to individual, political and civic rights, where in non-Western traditions there is more emphasis on economic and social entitlement, family obligations and community duties. In any case, whatever the distinctiveness we may give to rights and duties, it is in poor, illiterate societies, especially, that force majeure, in the shape of war, starvation and environmental disaster, precipitates refugees.

Asylum seekers

Apart from the term refugee, a word on all lips is that of asylum seeker. Here, meanings are looser. The ancient right of asylum asserted, for instance, in innumerable documents and expressed most vividly by those who lifted the Sanctuary Knocker on Durham Cathedral’s great west door, is now interpreted by the oppressed and by observers as both expectation and claim. Moving from Here to There is to be prudent, justifiable and deserving of ready assistance. Generally, in the eyes of authority, an asylum seeker is a person in transit who is applying for sanctuary in some other place than his native land. He is a migrant in search of something better and in that sense is an intending immigrant. He has moved across frontiers, in common with the recognised refugee, but motives and experiences will have to be rigorously examined to see whether or not they meet the strict definition as enacted in the Convention of 1951 and the Protocol of 1967. The implications of being an asylum seeker will be looked at in detail in the next chapter.

Persecution

To understand fully what it is that drives a refugee to flee and seek asylum, it is useful to examine the implications of the term ‘persecution’. In 1996 the Council of the European Union sought to harmonise definition of the term ‘refugee’ with UNHCR, in order that European states could prepare common guidelines for the recognition and admission of persons claiming refugee status. The ‘well-founded fear’ of persecution had to be appreciated in the light of the circumstances of each case. It is for the asylum seeker to submit the evidence needed to assess the strength of a case, with the additional safeguard that once the credibility of the case has been established the asylum seeker should be given the benefit of the doubt unless there are good reasons to the contrary. The term ‘persecution’ is notoriously difficult to pin down in definition. The Convention does not do that, nor does UNHCR at all clearly. Nevertheless, there is broad agreement that persecution relates to actions which deny human dignity in any key way through systemic and sustained denial of basic human rights such as are codified, for example, in the Universal Declaration of Human Rights of 1948. What is important here is the extent to which a person deserves international protection because this is not available in the homeland.

Persecution itself is not legally defined but is generally based on persistent and consistent patterns of abuse, intervention and intolerance. Apart from the Universal Declaration, there have been many attempts to set these rights down as incontrovertible and universal. A moment’s reflection, however, presents what are termed fundamental rights as subject to conditions and cultural factors; indeed, to a mass of enabling or prescriptive factors. The conventional nostrum that human rights are universal, indivisible, interdependent and interrelated has never looked entirely credible since 1951 (and many never thought it so even then). After all, as many relief workers in disaster areas used to say, ‘human rights begin with the availability of breakfast’. Granted that this may be so, one has to start somewhere and one rather basic tabling of rights might be on these lines:

• Freedom from—arbitrary deprivation of life or liberty or movement, inhumane or degrading treatment.
• Freedom to—express thoughts and attitudes in public, to practise social and religious participation, to enjoy fair and equal protection in law, and benefit from socioeconomic rights in relation to shelter, jobs, health, education.

Denial of rights and freedoms such as these, where it is deliberate and ongoing, is surely persecution but the term is double-edged. The state has failed to ensure and guarantee protection. Recently, UNHCR even encapsulated this twin relationship in a formula where:

Persecution=the risk of individual serious harm+failure of state protection.

As for state failure to protect, this may be because the state responsible for what is held to be harmful action condones it, tolerates it, or generally either refuses adequate protection or is for some reason unable to offer it. No breach of human rights can be ignored, discounted, or explained away on the basis of culture, tradition or religion. (Frequent violations of basic rights occur in Afghanistan, Myanmar, Saudi Arabia and among Palestinian refugees in Israel.)

For many years, Amnesty International has chronicled spiralling political violence in very many countries which, when it bears down upon certain groups and particularly upon individuals, constitutes persecution. Colombia, Chechnya, Pakistan, Sudan, Congo, Israel, China, North Korea, Uzbekistan, Georgia and Indonesia are countries where arbitrary detention has furnished a host of ‘prisoners of conscience’ and, for those who escape, a revelation that physical abuse including torture is either a sustained means of dealing with those who dissent on moral grounds, or episodic, so leading to mental breakdown, attempted escape, even suicide. A particular difficulty for a claimant and often for UNHCR investigators is that persecution may well be a form of behaviour whose exact instigators are difficult to trace. Is a government to be held responsible for violations and abuses committed constantly or from time to time by its security forces or by independent agents? Governments, and, indeed, their agents are unlikely to admit guilt and may even act claiming some degree of impunity. How far is it possible to shame, as it were, a government into redressing human rights violations when an escaped refugee provides full and impartial evidence of ill treatment, ‘disappearances’, arrest and detention...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• 1 Asylum seekers and refugees
• 2 Searchers after asylum
• 3 Asylum seekers in Britain
• 4 Asylum seekers in Europe
• 5 Globality of concern
• 6 Case study 1
• 7 Case study 2
• 8 Case study 3
• 9 Case study 4
• 10 The question of return
• 11 Refugee testimony as an aid to understanding asylum issues
• 12 Retrospect
• Postscript