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Who is – and who isn’t – a refugee?

Many people think that anybody who flees a war zone or other calamity automatically becomes a refugee and is entitled so certain protections. Unfortunately, in the eyes of international law, the reality is often more complicated

How exactly is one determined to be a refugee? The question is not as simple as it may seem. For better or worse, escaping a war-torn country or other catastrophe doesn’t always make that person an official refugee in the eyes of international law.

A refugee is someone determined to have  “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and who therefore cannot return to his or her country of origin.

This definition is governed by the United Nations’ 1951 convention relating to the status of refugees as amended by the 1967 protocol to the convention, the key international law that defines refugee status. Two regional conventions, the 1969 OAU Convention in Africa and the 1984 Cartagena Declaration in Latin America, expand the definition above to grant refugee status “prima facie” to anyone arriving as part of a mass migration fleeing generalized violence, such as civil war.

According to these legal norms, many of the asylum seekers currently arriving in Europe are unlikely to achieve refugee status; they will be considered economic migrants who left their countries to seek work rather than fleeing ill-treatment or generalized violence. However, those who are escaping bloodshed and persecution may well be assessed to be refugees based on their specific cases.

Becoming a refugee begins with requesting asylum while outside one’s own country. It is important to remember that an asylum seeker is not a refugee and might not become one.

When, Where and How: Becoming a Refugee

A person may enter a country with the intention of claiming asylum, either as an individual or as part of a large group fleeing violence. In other cases, someone may happen to be abroad when circumstances at home change, rendering it unsafe for them to go back, so they decide to request asylum; this is known as sur place.

In all cases individual claims; group migration that may qualify members for prima facie refugee recognition; and visitors requesting asylum sur place the determining factor in becoming a refugee is having a well-founded fear of persecution in one’s country of origin.

Government agencies or the UNCHR conduct the Refugee Status Determination (RSD) process to figure that out. The RSD has two components: an interview with the asylum seeker, and research into the situation in the person’s country of origin to assess whether his or her circumstances fit the requirements of any applicable refugee convention. The result is a positive or negative determination of the person’s eligibility to be a refugee.

Refugee determination is forward-looking. The refugee agency officer is seeking to answer the question: “If this person goes back to his or her country, how likely is he or she to be harmed?”

Well-Foundedness of Fear

An interview with a refugee is an attempt to find out the reason for flight and the well-foundedness of the person’s fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion, in accordance with the 1951 Refugee Convention.

The asylum seeker’s fear is broken down into subjective and objective fears.

The subjective fear is that which comes from the perspective of the individual based on his or her circumstances and experiences. Because the refugee convention is forward-looking, an asylum seeker may be recognized as a refugee even if at the time of the RSD interview, no harm has yet come to that person.

The objective fear is what the interviewer assesses as existing. In making this judgment, the adjudicator looks at factors that would affect the likelihood of the asylum seeker facing persecution in his or her country of origin upon return.

For example, if an asylum seeker were to claim a fear of persecution based on his or her real or perceived political opinion, the person assessing that claim would research conditions in the country of origin relating to the government’s treatment of political dissidents. If the asylum seeker is from a country whose government has a long history of harassing, arbitrarily arresting and torturing political opponents, the assessor would use this information, along with any history of persecution that the applicant actually experienced, to make an informed judgment on the well-foundedness of the applicant’s fear of persecution in the future.

This is an assessment of the likelihood of persecution. In the adjudicator’s opinion, the applicant must face a reasonable likelihood of persecution in order to establish well-foundedness.

For example, let’s imagine that Ms. G, a high-ranking member of a former ruling political party, enters a foreign country seeking asylum. She fled after a coup brought the former political enemies of her party to power. Members of Ms. G’s party had persecuted, tortured and killed people belonging to this enemy party over the course of decades. The new ruling party is carrying out reprisal killings, arbitrary arrests and torture of members of Ms. G’s party. In this scenario there is a high likelihood that if Ms. G returns to her country she will be at risk of persecution, even if she was not personally involved in previous rights abuses.

Sur Place

The general public is often influenced in its perception of refugees by large-scale crises involving mass movements of people, such as the one currently unfolding in Europe. Refugees can be created on a much more individual basis, however, and may come from any socioeconomic class.

A person who travels outside of his or her home country for reasons unrelated to claiming asylum may still make a claim if he or she has a well-founded fear of persecution at home or there has been a change of circumstances in the home country. Such claims are known as sur place.

In the example of Ms. G, imagine instead that she is on a trip abroad when the coup at home happens. Ms. G is visiting a foreign country as a government delegate and, while there, her government is overthrown and its former members are targeted for political assassinations. Nothing has happened to Ms. G in her home country up to this point, but she faces the risk of persecution if she returns. If she claims asylum, it is possible that UNHCR or the host government may recognize her as a refugee.

Prima Facie

Regional refugee conventions such as Africa’s 1969 OAU Convention and Latin America’s 1984 Cartagena Declaration include the 1951 Refugee Convention’s definition, but broaden it to recognize as refugees large groups of people fleeing generalized violence. Because of this, it is much easier to be recognized as a refugee under these regional conventions.

Governments or the UNHCR often decide to recognize refugees under these conventions where there is a mass influx of asylum seekers and the numbers are simply too large to undertake individual RSD processes; basically, the group is recognized as a whole. This is a useful tool for recognition and is often applied when large groups are fleeing generalized violence. This is how Tanzania is currently granting asylum to Burundians fleeing unrest in their country.

Results of Refugee Status Granted or Denied

Granting of Refugee Status

In the case of a positive decision by a host country government, the individual who has been granted asylum may be placed on a track toward permanent residency or full citizenship in the country of asylum and the rights that come along with that status.

If the UNHCR was the entity making the positive decision, this may also open access to resettlement options at a later date, though only if they are recognized under the 1951 Refugee Convention (that is, the person has a well-founded fear of persecution). Refugees recognized under other conventions will have to be reassessed to see if they fit under the 1951 Convention before being considered for resettlement.

Denial of Refugee Status

When a government rejects an asylum seeker, it may decide that the individual should be returned to the country of origin because there is no personal risk to the individual and general conditions in the country of origin pose no danger. The government or UNHCR is in effect saying that this person does not meet the criteria to be considered a refugee and does not deserve the protection of the international community.

Even if a person does not win refugee status, there are human rights guarantees in place to prevent that person from being forcefully returned to a country where their safety cannot be guaranteed, especially if the country of origin is experiencing severe conflict. The 1966 International Covenant on Civil and Political Rights (ICCPR), for example, prohibits people from being returned to countries where they might face torture.

Denial of refugee status may also leave an asylum seeker stateless. For example, in a 2004 Australian High Court case called Al-Kateb v Godwin, an asylum seeker named Al-Kateb was denied refugee status and held indefinitely in detention. He applied to be able to return to either Kuwait or Gaza, since he was a Palestinian born in Kuwait. However, neither state would accept him. He was termed stateless and as he could not be returned to his own country, the court ruled that indefinite detention was acceptable under Australian law. Al-Kateb was eventually granted a bridging visa at a much later date and released from detention.

Appealing a Denial

Even if an asylum seeker’s initial application for asylum is rejected, all applicants are allowed to lodge appeals against negative decisions.

It is also worth noting that if the government of a country that hosts a UNHCR operation rejects the claim of an asylum seeker, the UNHCR can recognize that asylum seeker as a refugee under its mandate. This happens in cases where the UNHCR disagrees with the decision of the government and finds that the individual is at risk of persecution in his or her own country.

The appeals process varies across the legal systems of different countries. The governments of Canada and the United States, for example, have refugee appeals tribunals to deal with cases. Appeals from negative decisions usually lead cases into the higher courts and sometimes into a country’s highest court. If the case is lost there, the only recourse is to draw the attention of committees monitoring human rights conventions or take the case to a regional court of human rights. The decisions of these committees and courts have limited power, however.

If the UNHCR is the entity that denies an asylum claim, the applicant usually has 30 days to lodge an appeal against the decision. The applicant will retain identification showing that he or she is an asylum seeker until the UNHCR reviews the original decision to determine whether any mistakes were made in denying the application. If the original decision is overturned, the individual will then acquire refugee status. If the applicant’s claim is rejected at this level of appeal, the process has reached an end.

An asylum seeker rejected after a final appeal must figure out his or next steps. This can be a very stressful outcome for the individual; the person may genuinely believe him or herself to be in danger if returned to the home country, but he or she is left with no choice but to do just that, or to try again to seek asylum in another country.

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