Blog post by Joysheel Shrivastava, a practicing lawyer based in Mumbai, with a keen interest in gender studies, human rights and international humanitarian law.
With armed conflicts across the world, the international community is arguably observing the highest levels of displacement since World War II. Today, 70.8 million people are displaced from their homes, either as a refugee, an asylum seeker, or internally displaced person (IDP). Every two seconds, 1 person is forcibly displaced due to conflict or persecution. The current situation is often referred to as a ‘Refugee Crisis’, which is misleading, as 58% (41.3 million) are IDPs, i.e., those who have not yet crossed the borders of their country), but rather are ‘on the run at home’.
Words like ‘refugee’, ‘asylum seeker’, ‘migrant’ are often used interchangeably in everyday conversation or in the media, masking important differences in legal status and protection. While the law has prescribed a very clear difference between asylum seekers and economic migrants, States have conflated the meaning of the two, and have used it to side-step their obligations under the 1951 Convention Relating To The Status of Refugees (hereinafter, the 1951 Refugee Convention).
An overview of the problem
International refugee law and human rights law requires States to: (a) equitably consider the claim for asylum made by an asylum seeker; and (b) not force the asylum seeker to return to their country of origin if there is a possibility of torture, etc. (principle of non-refoulement). On the other hand, the international framework mandates no obligations on part of the States towards economic migrants (refer to 1990 Migrant Workers’ Convention), who are considered to be ‘voluntary migrants’, and are not afforded international protection.
States often prioritize their territorial sovereignty and tend to be hesitant towards allowing incoming migrants (regardless of the reason for their arrival, thereby including asylum seekers as well), citing concerns such as national security, law and order, etc. Importantly, while the difference between a ‘economic migrant’ and ‘refugee’ is very clear on paper, realities on the ground tell a different story. The drivers for movement are more fluid and complex in nature; there are various reasons for inception and perpetuation of movement; and these reasons are functions of time, located in various spheres of economics, politics, culture, security, etc. Various factors act in conjunction with one another and ultimately lead to migration. Therefore, drivers for movement operate as a ‘continuum’, and are not capable of being pigeonholed into a dichotomy of forced-versus-voluntary.
An analysis of state practice
In spite of this background, States are often unwilling/unable to distinguish between ‘economic migrants’ and ‘asylum seekers’; and often do not fulfill their legal obligations towards those worthy of international protection, such as, (a) granting them temporary admission and processing their claims, (b) allowing them to live a bare minimum life with access to education, food, shelter, and other basic necessities, (c) not violating the principle of non-refoulement. As a result of being shunted from one State to another, these (should be) protected individuals, unable to return to their country of origin, turn into ‘refugees in orbit’, i.e., stuck in a limbo with no determinate status, and a bleak future.
Arguably, States often conflate the two concepts in practice to restrict immigration. The term ‘economic migrant’ has frequently been politicized and used by the media and politicians to criticize the claims of ‘self-identifying’ asylum seekers. States have leveraged the fact that the individual may be travelling without legal documentation, and have often made an implicit assumption, that asylum seekers are in fact ‘mere’ economic migrants, in an attempt to refuse consideration of their claims for protection. This is notwithstanding the fact that refugees, by definition, flee from their homes in times of desperation and emergency, and often do not have the opportunity to carry with them proper legal documentation which may help their cause.
Over the past few years, Europe (and several other regions) had experienced a sharp surge in irregular boat migration, spiking in 2015, leading to an influx of over one million people into the continent. This led to a series of discussions in the European Union about how to deal with the humanitarian and border crisis. The Hungarian President at the time, Viktor Orban, while characterizing the crisis as “a rebellion by illegal migrants”, stated that economic migrants constitute “an overwhelming majority” of those who seek to enter the Eastern European bloc. Along similar lines, the Slovak Prime Minister at the time, Robert Fico, stated that 95% of the people arriving in Europe by boats were economic migrants.
The Western bloc (especially Germany and France) has been observed as being more permissive towards protecting even economic migrants, and criticized the Eastern bloc for not doing the same; however, by 2016, support of even the West for expansive protection waned.
In 2015, the European Union (EU) devised a relocation programme or refugee quota policy to make the distribution of incoming refugees more equitable and less onerous on the border States of Italy and Greece. As per this programme, other EU member States were required to relocate a pre-determined percentage of the refugees and migrants landing at the shores of Italy and Greece, into their own territories.
Despite this, Poland and Hungary blatantly refused to take in a single refugee, and Czech Republic took in only 12 refugees, on grounds of national security, law and order and protection of local customs. Notably, Poland has accepted fewer asylum seekers per capita than any other European nation, and even refused to pay the fine (to be imposed by the European Union) of 250,000 Euros for every refugee it turned away. On 2 April 2020, the European Court of Justice ruled that these three States – Poland, Czech Republic and Hungary – had violated EU law, by failing to meet the mandatory refugee quotas.
United States of America
The negative assumptions and demonization of asylum seekers and migrants has been seen in a variety of states. Some politicians claim that asylum-seekers are cheats, con-men, or charlatans, and perceive them as untrustworthy; they believe that migrants and asylum seekers use up resources and take up opportunities at the cost of the nationals of the host country, and that their presence will lead to an increase in crime rates or threaten national security.
This has best been exemplified by the rhetoric and policy of the Trump Administration in the United States of America, which has rebuffed many of its international obligations by attempting to deny the entry of asylum seekers and other migrants to the U.S. – via a permanent ban on travel from 8 countries (North Korea, Chad, Iran, Libya, Syria, Venezuela, Yemen, and Somalia). Notably, most of these countries are experiencing some form of armed conflict, humanitarian crisis or persecution, meaning that many individuals from these countries would be likely to fulfill the requisite criteria for refugee status.
The United Kingdom’s right-wing politician Nigel Farage supported this move by the U.S.A, echoing the claim that most of the people coming from these countries into Europe or U.S.A were economic migrants, and not refugees.
India has a sizeable refugee population and a history of offering refuge, owing to conflicts in various neighboring States. For instance, in 1959, the Dalai Lama and 100,000 of his followers fled the Chinese repression of the national uprising in Tibet and sought political asylum in India; in 1971, the end of the war with Pakistan led to the independence of Bangladesh, and the exodus of 10 million refugees from Bangladesh into India (i.e., the largest single displacement of refugees in the second half of the 20th century); and in the 1980s, more than 134,000 refugees fled from Sri Lanka in the backdrop of the bloody civil war.
The Indian Government recently passed the Citizen Amendment Act, 2019 (CAA), which offers fast track citizenship to Hindus, Sikhs, Buddhists, Jains and Christians, who arrived in India from Afghanistan, Bangladesh and Pakistan, before 31 December 2014. While this Act has been positioned as a relief for individuals fleeing persecution, the word ‘persecution’ is missing from the text. Further, this Act is narrow in its scope, and excludes various groups, such as Sri Lankan Tamils (approximately 100,000 in number, either Hindu or Christian), living in camps in the southern state of Tamil Nadu; Ahmaddiya Muslims from Pakistan (approximately 150,000 in India); and Rohingyan Muslims from Myanmar (stripped of their citizenship in Myanmar in the 1980s, over 40,000 have been known to escape the genocide in Myanmar, and make India their home).
In response to widespread criticism of the CAA for being divisive and discriminatory on the grounds of religion, and its impact on excluded communities, the Union Home Minister, asserted that all refugees in the country will granted citizenship under the CAA. While reassuring on the face of it, this statement needs to be read together with the CAA, which is limited to only certain religions from certain countries. It is foreseeable that the excluded communities will either remain in the refugee camps (infamous for the squalid conditions) until their case is adjudicated upon (which is typically not an expedient or efficient process), or be sent back to their respective countries of origin. Therefore, this statement points to the pre-conceived notions and prejudices which colour a government’s view of drivers of migration, who qualify as ‘refugees’, and accordingly, those entitled to protection.
In cases such as that of Rohingyans or Ahmaddiya Muslims, deportation would most likely be a violation of non-refoulement principle. In cases such as that of Bangladeshi immigrants and Sri Lankan Tamils, the analysis pertaining to deportation would be different – the government may rely on the stance that these migrants may not necessarily face persecution if sent back to their country of origin; and that while these communities are victims of a historical conflict, today many of the individuals of these communities are ‘economic migrants’ i.e., not worthy of international protection. However, as mentioned above, given the forced-voluntary continuum, there may well be individuals even in these communities, whose deportation may qualify as a violation of refugee law obligations.
Role of lawyers and humanitarian workers in protecting migrants and asylum seekers
There is reason to believe that the presumption of States that most irregular arrivals are economic migrants not deserving refugee status is false. For instance, between 1976 and 2015, 81% of those who have arrived in Australia via boat were found to be eligible for refugee status. Furthermore, UNHCR estimates that over 50% of those who arrived in Europe by sea were from war-torn Syria alone; while many others were from conflict-ridden regions such as Afghanistan and Iraq, and from lands of oppressive regimes such as Eritrea and Gambia, which would be likely to qualify them for asylum.
Lawyers and humanitarian workers play a key and fundamental role in ensuring that States perform their obligations under international law – they can help facilitate the safe movement of asylum seekers through safer migration channels; collaborate with neighboring States to facilitate a smoother and quicker screening of claims made; provide legal aid and representation to assist refugees and asylum seekers; assist these protected groups to ensure that they are not deprived of their rights under international law, in camps and other temporary settings while they await a permanent status or return.
In addition, an attempt must also be made to engage in advocacy efforts to encourage States to not shut down migrant routes and send back those who arrive at their borders (for instance, as per the EU-Turkey deal, Greece is permitted to send back irregular migrants back to Turkey; or India’s intention to deport stateless Rohingyans back to Myanmar); and formulate policies which are sensitive to the needs, vulnerabilities and potential contributions of asylum seekers and migrants alike.
When States function on a number of negative premises concerning asylum seekers, they deny their right to a fair consideration of their claims to international protection, and risk committing refoulement. States must build the requisite infrastructure and devise methods to be able to distinguish between those who are worthy of international protection, and those who aren’t, and refrain from turning away migrants without making a just and adequate inquiry into their status.
The distinction between the treatment afforded to economic migrants and asylum seekers leads to the larger question as to whether this differential treatment remains morally justifiable today, given that it is often difficult to disentangle political conflicts from poverty (one of the of the main drivers for economic migration). It is generally undisputed that refusing protection to a Syrian, and forcing them to return to the conflict is not just legally prohibited but morally reprehensible. Similarly, why should it be legally or morally permissible to extract a Sri Lankan Tamil from Tamil Nadu, where they settled down almost 30 years ago, built a life, and have access to food, education and shelter, and send them back to Sri Lanka – where they would have to start from scratch; or worse, force an individual fleeing the heavily crime-ridden every day life in Guatemala to return there? Similarly, why should the global community condone the act of sending a migrant back to an impoverished region or a natural disaster zone? It may well be time to rethink these legal distinctions in order to protect better all those who need it most, whether they are driven to migrate by persecution, conflict, poverty, health or disaster.
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