Anthony Aust. Handbook of International Law
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genuine humanitarian case, it will need all the diplomatic skills of the head of the mission, and his
foreign minister, to balance their legal duty to the receiving state and their moral duty. That a person
wants refuge in the sending state is not a valid reason for protecting him, although the sending state
will be in a stronger position, politically and legally, if there are grounds for believing that, if
ejected, he would be subjected to ‘summary justice’, or otherwise dealt with arbitrarily or treated
inhumanly.
46
Refugees
Hathaway, The Law of Refugee Status, Toronto, 1991
Office of the UN High Commissioner for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status, Geneva, 1992 (www.unhcr.ch)
Weis, The Refugee Convention 1951: The Travaux Préparatoires Analysed with a Commentary,
Cambridge, 1995
Feller, Türk and Nicholson (eds.), Refugee Protection in International Law, Cambridge, 2003
Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 890–6
Definition of refugee
The relevant treaty is the Convention relating to the Status of Refugees 1951, as amended by the
1967 Protocol extending the Convention to cover all refugees, past, present and future. The two
instruments are referred to collectively as ‘the Refugee Convention’ (in this chapter, ‘the
Convention’).
47
Article 1A(2) defines ‘refugee’ as a person who
owing to a 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.
48
46. See generally Oppenheim, pp. 1082–6; Satow, paras. 14.17–14.23; R. (B. Children) v. Secretary of
State for Foreign and Commonwealth Affairs [2005] 2 WLR 618.
47. 189 UNTS 137 (No. 2545) and 606 UNTS 267 (No. 8791); UKTS (1954) 39 and UKTS (1969) 15.
48. See also Article of the OAU Convention on Specific Aspects of Refugee Problems in Africa, 10
September 1969, 1001 UNTS 60 (No. 14691), which expands on the Convention definition by covering
persons who have fled from, in effect, generalised violence. That is very relevant in the African context,
although most conflicts in Africa are characterised by inter-ethnic violence and so in many such cases the
Convention definition would also apply.
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The definition applies also to a stateless person who is outside the country of his ‘habitual residence’
and is unable or, owing to such fear is unwilling, to return to it.
Some important misunderstandings are caused by misuse or misapplication of basic terms.
Refugees must be clearly distinguished from other persons with whom they are constantly confused.
Because of war or natural disaster, people have long sought safety in foreign countries, and the last
quarter of the twentieth century saw a substantial rise their numbers. It is therefore important to
distinguish from refugees such displaced persons seeking asylum (see above), since persons seeking
protection as refugees are frequently referred to, often disparagingly, as ‘asylum-seekers’.
49
The
same period also saw a large increase in economic migrants whose sole purpose in leaving their state
is to seek a better life. Then there are internally displaced persons (IDPs) who have had to leave
their homes for various reasons, but who are still in their own country. The Office of the UN High
Commissioner for Refugees (UNHCR) has only a limited mandate for IDPs. It does not have a
mandate for the other groups mentioned in this paragraph or for other ‘persons of concern’, such as
former refugees who have been repatriated, stateless persons or persons who have been displaced by
war or generalised violence where there is no element of persecution per se. This section does not
deal with those categories.
Although not all states are parties to the Convention (there are 142 parties), its basic principles, in
particular the definition of a refugee and the prohibition on refoulement,
50
are now part of customary
international law. Unlike asylum, the status of refugee under the Convention is a right under the
Convention. Once the criteria have been satisfied, states have an obligation to treat the person as a
refugee; there is no discretion. However, states have to use their domestic legislation and procedures
in dealing with claims to refugee status. One has therefore to consider each refugee application, not
only on its own particular facts but also in the light of the law of the state concerned. Although there
is some room for varying opinions in interpreting some aspects of the Convention, in applying their
legislation states should be guided by the Convention, UNHCR Guidelines, and Conclusions of the
UNHCR Executive Committee. Here, one can only outline the most important provisions of the
Convention.
49. The media have much to answer for; but are not helped when the Convention is incorporated into UK
law by the Asylum (sic) and Immigration Appeals Act 1993.
50. See p. 193 below.
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The UNHCR was established in 1951 by General Assembly Resolution 428 ( ). Annexed to the
resolution was the UNHCR’s Statute. The Statute gives it a mandate to protect refugees whether or
not the state in which they are is a party to the Convention, provided the state is co-operative. Even
if it is unco-operative, the UNHCR still has a mandate in respect of refugees within that state’s
territory, so that it can still make démarches to the authorities on their behalf and publicise their
plight.
Application for refugee status
The proposition that a refugee should make his claim in the first country at which he arrives is
controversial and not supported by the Convention or other legal instruments. But the determination
of refugee status should be made by the first state in whose territory the claim to refugee status is
made.
51
Every state is obliged to admit refugee claimants, this duty of admission flowing from the
principle of non-refoulement (see below), and is a key part of refugee law. The claim is often made
at immigration control at an airport or seaport. Since the territory of a state includes its territorial
sea, a claim can be made on or from a ship in the territorial sea, or by a lawyer on behalf of the
claimant once the ship has entered the territorial sea. Thus, when a ship carrying persons seeking
refuge has entered the territorial sea of a state, it should not be turned back. The practice of a state
declaring a ‘migration zone’ within its territory, within which a person can apply for refuge but
leaving outlying areas outside the zone in an attempt to avoid the Convention applying there, is not
compatible with Convention obligations unless the state makes provision for applications to be
properly processed outside the zone, either in its territory or in a third state, and, if they are
successful, to admit the refugees into the zone.
Once the claim has been made, the state should not require the claimant to leave while his
application is pending, as this might result in a breach of the prohibition on refoulement.
52
A passport is prima facie proof of the nationality of the claimant, but is not conclusive.
53
It is not
necessary for a person claiming refugee status to have lawfully entered the state where he makes the
claim (Article 31(1)). One must therefore be very careful when one reads about
51. See the EU’s so-called Dublin Agreement 1990, 2144 UNTS 492 (No. 37439); UKTS (1996) 72.
52. See section 6 of the (UK) Asylum and Immigration Appeals Act 1993.
53. See pp. 141 and 181 above.
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‘illegal immigrants’. Used correctly, this term means only that the persons have entered another state
without the necessary visa. Many economic migrants fall into this category. But the term illegal
immigrant is often used in a derogatory sense, and it may obscure (and be so intended by politicians)
the fact that the person may be a genuine refugee even if, as a matter of domestic law, he has arrived
in the state without permission and is there illegally only in that sense. Not surprisingly, most
refugees are quite unable to obtain a visa before entering the state of refuge. Embassies and
consulates may refuse a visa or be inaccessible, and the Convention does not require states to
process refugee applications abroad, although there is a growing trend to do this. Because most
airlines will not carry passengers who do not have a passport and any necessary visas, many genuine
refugees smuggle themselves into the state of refuge, as do some economic migrants.
Fear of persecution
An applicant’s fear of persecution will be well founded (i.e. real) if he establishes to a reasonable
degree that if he were to return to his state it is likely he would be persecuted. Fear being largely
subjective, the applicant’s perception will be important, but it must still be reasonable. So there must
be some basis in fact that he, or other persons in his state in a like position, have been or are likely to
be persecuted. In addition to a detailed investigation of the background of the individual and his
family, the state of refuge will have to assess the conditions in his own state in order to determine
whether the fear is reasonable. But persecution of him or others does not have to be the reason he
left his state, since circumstances can change for the worse subsequently.
The persecution must be for reasons of race, religion, nationality, membership of a particular
social group or political opinion, although a rigid line cannot be drawn between these categories;
they often overlap. The Convention does not define persecution, although it must amount to some
significant form of ill-treatment, usually involving human rights abuses. The ill-treatment does not
have to be physical. Serious discrimination in matters such as education or healthcare, if particularly
severe and cumulative, may amount to persecution, but the threshold is high. In itself, fear of
punishment for a crime (including for desertion from the armed forces or draft-dodging) will not be
enough. The person would have to show that, because of his political opinions etc., the real purpose
of a prosecution would be to persecute him or that, for the same reason, he
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would not get a fair trial or the sentence would be excessive. Persecution for reasons of ‘nationality’
includes persecution of ethnic or linguistic groups. Being of a different political opinion to that of
the government will, in itself, not be enough; the person would have to show that, because of his
opinions, he has a real fear of persecution, and this is more likely if he has actively expressed those
opinions.
Persecution can also be done by a dominant minority, but states vary on whether fear of
persecution by private persons is sufficient, and this includes organisations as well as individuals
who are not formally tied to the state, for example rebel armed forces and paramilitary groups. Some
states regard private persecution as insufficient, and others only if the persecution is known to the
authorities and they were unwilling or unable to provide protection.
54
The UNHCR Handbook
makes clear that, depending on the circumstances, persecution by non-state agents can fall within the
Convention. The majority of states also follow this route (including several Western European).
There is also significant jurisprudence to this effect. The purpose of the Convention is to provide
surrogate (international) protection where national protection of an individual’s fundamental rights
has failed. The identity of the persecutor is not therefore particularly relevant. Although the first
state the claimant enters should process his claim, a state that takes a narrow view and rejects the
claim may, instead of returning him to his state (which could amount to a breach of the non-
refoulement obligation) do nothing to prevent him entering another state that takes a more liberal
approach.
Even where a state may grant diplomatic asylum in one of its diplomatic missions to a local
national,
55
since an embassy is not part of the territory of the sending state
56
the asylum-seeker
cannot claim refugee status while he is still in his own state.
Exceptions to refugee status
Article 1, Sections C to F, of the Convention list four cases where a person coming within the
definition of refugee is nevertheless excluded from the protection of the Convention: he no longer
needs protection (Section C); he is receiving protection and assistance from UN organs or agencies
54. See the judgment of the House of Lords in R. v. Home Secretary, ex parte Adan [2001] 2 AC 477;
ILM (2001) 727; and Feller, Türk and Nicholson (eds.), Refugee Protection in International Law,
Cambridge, 2003, p. 59.
55. See p. 187 above.
56. See p. 125 above.
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other than the UNHCR, for example the UN Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA) (Section D); although not a national of his new state of residence, its
authorities treat him as if he were one (Section E). Section F is rather different in that it lists, in the
pointed words of the UNHCR Handbook, ‘persons not to be deserving of international protection’.
A state is required not to treat a person as a refugee if there are ‘serious reasons for considering’
57
that:
he has committed a crime against peace (aggression), a war crime or a crime against
humanity;
58
1.
he has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee; or
2.
he has been guilty of acts contrary to the purposes and principles of the United Nations.3.
Category (c) might appear somewhat vague,
59
but it has been applied by domestic courts and is of
increasing importance. To make it clear that persons involved in terrorism are not entitled to refugee
status, in 1996 the UN General Assembly reaffirmed that terrorism, including knowingly financing,
planning and inciting terrorist acts, is ‘contrary to the purposes and principles of the United
Nations’, and that before recognising refugee status, states should ensure that the person has not
participated in terrorist acts.
60
All potential Section F cases, including terrorist ones, require the
most careful examination by national authorities since difficult issues are often involved.
Non-refoulement
61
A state is not obliged to give refuge to a person even if he has established his refugee status. But, in
addition to not returning him to his own state, he must not be sent to a third state if his life or
freedom would there be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion (Article 33(1)). This is known as the principle of non-
refoulement. It applies even before a claim to refugee status has been verified, provided there is a
prima facie claim.
57. It is not necessary to prove that he has been convicted of a relevant criminal offence.
58. For an explanation of these terms, see p. 271 below.
59. But see the UNHCR’s guidelines on Article 1F on its website, www.unhcr.ch.
60. Paras. 2 and 3 of the Declaration annexed to A/RES/51/210; ILM (1996) 1188.
61. From the French ‘refouler’, to return.
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The test is whether his life or freedom ‘would’ be threatened, and is thus an objective test, the
refugee’s perception not being so relevant. In the case of a political refugee, it may be necessary to
determine whether the third state would be able to protect him from abduction or attack by agents of
his own state.
A mass influx of refugees into a state can cause considerable problems, particularly as such
movements tend to be into developing countries with limited resources. The 1967 UN General
Assembly Declaration on Territorial Asylum
62
states that in order to safeguard the local population
such refugees may be refused entry or, if already in the state, returned even if they may be
persecuted. But the Declaration is not legally binding and an attempt to convert it into a treaty was
unsuccessful. Yet, the Convention was written with mass movements in mind (World War Two
refugees) and its limited exceptions to the prohibition on refoulement do not include situations of
mass influx.
63
Protection for the state of refuge
The prohibition on refoulement does not apply when there are ‘reasonable grounds’ for regarding the
refugee as a danger to the security of the state of refuge or, having been convicted of a ‘particularly
serious crime’ constitutes a danger to the community of that state (Article 33(2)). Similarly, Article
32 permits the expulsion of a refugee on grounds of ‘national security or public order’. Expulsion
must be done with due process of law, and the refugee must be given a reasonable time in which to
seek admission to another state. However, even when the state of refuge would be entitled to send
the person to another state, including his own, the state of refuge may be prevented from doing so by
its obligations under other human rights treaties. Such obligations are also relevant in the case of
those who are excluded from refugee status by virtue of Article 1, Section F (see above). The
European Court of Human Rights has decided that Article 3 of the European Convention on Human
Rights has extraterritorial effect.
64
This prevents a person, whatever his nationality, being sent to
another state if there he might be subject to inhuman or degrading treatment.
65
62. See A/RES/2312( ).
63. Conclusion No. 22 (1981) of the UNHCR Executive Committee. Hence the need for improved burden-
sharing between states, one of UNHCR’s current priorities.
64. For an explanation of this term, see pp. 44-9 above.
65. Chahal v. UK (1997) 23 EHRR 413; 108 ILR 385.