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Refugees, Migrants and Asylum-Seekers

Every day, all over the world, people make one of the most difficult decisions in their lives: to leave their homes in search of a safer, better life.

Most people in the world have had the experience of leaving the place where they grew up. Maybe they will only move as far as the next village or city. But for some people, they will need to leave their country entirely sometimes for a short time, but sometimes forever.

There are many reasons why people around the globe seek to rebuild their lives in a different country. Some people leave home to get a job or an education. Others are forced to flee persecution or human rights violations such as torture. Millions flee from armed conflicts or other crises or violence. Some no longer feel safe and might have been targeted just because of who they are or what they do or believe for example, for their ethnicity, religion, sexuality or political opinions.

This article aims to highlight the provisions of international law relating to Refugees, Migrants and Asylum-seekers.

Introduction
Every year millions of people are forced to abandon their homes and flee in search of safer and better places to rebuild their lives. There are several reasons that cause people to leave behind their entire life and move to an unknown place, including armed conflicts, human rights violations, persecution and several other forms of exploitation.

The need for international protection of refugee rights arose right after the Second World War when people around the world were forced out of their homes. This led to the formation of the United Nations High Commissioner for Refugees, an international body that seeks to provide protection to refugees and formulate lasting solutions to refugee problems.

Even though India does not have a framework for refugee protection and is not a signatory to the 1951 Refugee Convention or the 1967 Protocol, the country continues to provide a home to a large number of refugees from neighbouring countries. In the recent past, India's concerns around security have led to a more restrictive approach on providing asylum. However, there are still a large number of refugees seeking asylum in the country. This brings in the need for a national refugee protection law that protects the human rights of those who were persecuted out of their homes.

Why Do People Leave Their Countries?

There are many reasons why it might be too difficult or dangerous for people to stay in their own countries. For example, children, woman and men flee from violence, war, hunger, extreme poverty, because of their sexual or gender orientation, or from the consequences of climate change or other natural disasters. Often people will face a combination of these difficult circumstances.

People who leave their countries are not always fleeing danger. They might believe they have a better chance of finding work in another country because they have the education or capital to seek opportunities elsewhere. Others might want to join relatives or friends who are already living abroad. Or they might seek to start or finish their education in another country. There are lots of different reasons for people to start a journey to build a life in a new country.

Definitions: What Exactly Is A Refugee, An Asylum-Seeker And A Migrant?

The terms "refugee", "asylum-seeker" and "migrant" are used to describe people who are on the move, who have left their countries and have crossed borders.
The terms "migrant" and "refugee" are often used interchangeably but it is important to distinguish between them as there is a legal difference.

Who is a refugee?
A refugee is a person who has fled their own country because they are at risk of serious human rights violations and persecution there. The risks to their safety and life were so great that they felt they had no choice but to leave and seek safety outside their country because their own government cannot or will not protect them from those dangers. Refugees have a right to international protection.

Who is an asylum-seeker?
An asylum-seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn't yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. Seeking asylum is a human right. This means everyone should be allowed to enter another country to seek asylum.

Who is a migrant?
There is no internationally accepted legal definition of a migrant. Like most agencies and organizations, we at Amnesty International understand migrants to be people staying outside their country of origin, who are not asylum-seekers or refugees.

Some migrants leave their country because they want to work, study or join family, for example. Others feel they must leave because of poverty, political unrest, gang violence, natural disasters or other serious circumstances that exist there.

Lots of people don't fit the legal definition of a refugee but could nevertheless be in danger if they went home.

It is important to understand that, just because migrants do not flee persecution, they are still entitled to have all their human rights protected and respected, regardless of the status they have in the country they moved to. Governments must protect all migrants from racist and xenophobic violence, exploitation and forced labour. Migrants should never be detained or forced to return to their countries without a legitimate reason.

Refugees and migrants are legally distinct. According to the 1951 Convention Relating to the Status of Refugees ('Refugee Convention') and the 1967 Protocol Relating to the Status of Refugees ('Protocol'), a refugee is a person who flees across an international border because of a well-founded fear of being persecuted in her country of origin on account of her race, religion, nationality, membership of a particular social group, or political opinion.[1]

The Refugee Convention's definition is the most popular one in use around the world but broader descriptions also exist.[2] For instance, the African Union's 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa ('OAU Convention') recognises that a person fleeing external aggression, occupation, foreign domination, or serious disturbances of public order, is also a refugee.[3] And, in 1984, a group of Central and South American governments adopted the non-binding Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America ('Cartagena Declaration') which further included people fleeing threats to their lives, safety, or freedom due to generalised violence, foreign aggression, internal conflicts, and massive human rights violations.[4]

On the other hand, migrants are a far broader category of people who leave their places of habitual residence to live elsewhere. This happens most often within a country as migrants move to follow better prospects, usually to large cities.[5] However, significant numbers of migrants also cross international borders.[6]

Because there is no formal legal definition of a migrant, the term accurately describes high-income professionals moving between two advanced economies, people leaving impoverished areas, as well as people fleeing persecution.[7] So, all refugees are migrants in the sense that refugees move away from their places of habitual residence, but not all migrants are refugees.[8] The distinction between the two is important because refugees, not migrants, are protected by international refugee law.

International refugee law and Human Rights of the refugees
International legislations on refugee law
Internationally applying law governs the interests of forcibly displaced persons and ensures them with proper protection and support in the foreign country. The important legal frameworks for refugees can be studied under three main heads:
  • International refugee law;
  • International human rights law;
  • International humanitarian law.

International Refugee Law
The core instruments of the international refugee law are the 1951 Convention relating to the Status of Refugees and the 1967 Protocol.

1951 Convention relating to the Status of Refugees
The 1951 convention lays down the foundation for the international refugee law and was formulated in the aftermath of World War 2. It lays down the meaning and scope of the term "refugee", sets out several duties of the refugees in the host country and the responsibilities of the states towards them. It also establishes one of the key principles to ensure that the refugees are not forced back to their home country where there is considerable danger to their life or basic human rights.

The convention was made in the context of the events during the second world war and due to this, the definition of the refugees was temporal and geographically limited as being applicable to the events in Europe before 1 January 1951. However, over the years, there arose a need for a universal instrument to ensure the protection of the refugees. This led to amendments and the adoption of the 1967 Protocol.

1967 Protocol
The protocol aimed at removing the limitations present in the 1951 convention but remained integrally related to the convention. It redefined the application of the term refugees, thus overcoming the time and space-related limitations. The protocol ensures the application of the core content of the 1951 convention to all persons falling within the revised definition of a refugee.

International Human Right Law
1948 Universal declaration of human rights
The international refugee law does not operate in isolation and must be in compliance with several basic rights guaranteed under the declaration of human rights. Article 14(1) specifically provides the right to seek and enjoy asylum in other countries.

In addition to stating the basic rights that are applicable to all humans, including refugees, the human rights law also specifies the states obligation to respect, protect and fulfil the rights of their citizens.

International Humanitarian Law
Geneva Conventions of 1949 and the Additional Protocols agreed in 1977
A large number of refugees are displaced in the midst of internal conflicts or war-like situations. The principles of the International Humanitarian Law which deal with the laws of war or armed conflict are applicable to protect them.

A major part of this law is covered in the Geneva Conventions of 1949 and Additional Protocols of 1977. These ensure protection for those people who do not take part in fighting or are not in a position to fight. This is applicable to a wide range of persons from sick and wounded soldiers to civilians of the countries. This limits the effect of the conflict on the members who are not directly involved.

Human rights and refugees
Importance to protect rights of refugees
As discussed, the international refugee law and the human rights law work conjointly. This ensures that the rights of the refugees are not violated by the home country or the foreign country they are forced to cohabit in.

The refugees are forced to leave behind their homes, livelihood and move to a new place, which leaves them in a vulnerable and unstable position. In such a state, it becomes more important to ensure that their human rights are restored and protected. It is also important that the host country recognizes and upholds its rights.

The rights which need to be protected
Principle of Non-refoulement
The principle of non-refoulement is stated under Article 33(1) of the 1951 convention. This basic principle refers to the obligation of the states to not forcibly return or expel a refugee to a territory that endangers or poses a threat to their life or freedom.

However, just like all the other principles, this principle has certain exceptions that have been stated under Article 33(2), under which a refugee can be made to return to their home country. The exception can be valid if there exists a sufficiently serious danger to the security of the host country or to its community due to the refugee.

Principle of non-discrimination
The principle of non-discrimination is one of the core principles of all international laws. Any discrimination on the basis of sex, religion, language, political opinion and so on is strictly prohibited. Article 3 of the 1951 convention upholds this principle while obliging the states to apply all provisions following the principle of non-discrimination.

It is thus a basic right of the refugees to not be discriminated against in the host country. All provisions must be applied in a fair manner and as per this principle. The application of this principle extends to all rights from granting the status of a refugee to the treatment and care given to them in the host country.

Right to family life
The family is recognized as a fundamental group unit of the society and is thus entitled to be protected from separation or breakage. When refugees are forced to leave their homes in a state of fear and chaos, often many members of the families get separated from each other. This increases their risks to violence and exploitation, which makes them entitled to protection by the state.

The Conference of Plenipotentiaries that adopted the 1951 Convention reaffirmed the "essential right" of family unity for refugees. The right to family unity has been read into the right to family life, which is a basic right for all refugees. Family reunification in asylums is thus, an important right that all refugees are entitled to.

Basic rights to be guaranteed by the host country
Right to work
This is a socio-economic right that all refugees are entitled to. It enables the refugees to earn a living for themselves and improve their standards of living. In addition, this also reduces the dependence of the refugees on the state and thus, the burden of the state. It also contributes to a more cohesive society by improving contact between refugees and the local community.

Right to education
Education is an essential requirement in order to enable the realization of other rights. Non-discriminatory education is a fundamental right that protects refugee children from illiteracy, abuse, exploitation, child labour and other evils. It also enables them to find better work and reduce their reliance on the state for a livelihood.

Freedom of Movement
Freedom of movement within the host country is a key right recognized under Article 26 of the 1951 convention which gives refugees the right to choose their place of residence within the territory and to move freely within the State. This ensures that the state does not impose discriminatory restrictions that apply only to the refugees to confine them to a certain area.

Right to access basic facilities
The refugees also have the right to access several facilities to ensure social welfare and proper health. They have a right to a standard of living adequate for their health and well-being. This right extends to their right to access the courts in case of violation of their rights and be treated in a non-discriminatory manner before the court. However, in reality, many refugees are often unable to access these facilities due to several challenges such as poverty, marginalization and discrimination.

Why Should Governments Welcome Refugees, Asylum-Seekers And Migrants?

  • We want to live in a world where people who are in grave danger have the opportunity to rebuild their lives in safety.
  • In a globalized world, sharing global responsibility for global issues is the fair thing to do.
  • Host communities benefit from the tremendous energy and drive to start new lives, which these people bring.
  • Welcoming people from other countries strengthens host communities by making them more diverse and flexible in our fast-changing world.
Some of the most inspiring and influential people in the arts, science, politics and technology have been refugees, asylum-seekers and migrants. They were allowed to rebuild their lives in a new country and they thrived as members of a new community.

End-Notes:
  1. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, Art. 1(A)(2); Protocol Relating to the Status of Refugees, January 31, 1967, 606 U.N.T.S. 267, Art. 1(2).
  2. Jane McAdam, The Refugee Convention as a Rights Blueprint for Persons in Need of International Protection (UNHCR Research Paper, Paper No. 125, 2006), available at http:// www.unhcr.org/research/RESEARCH/44b7b7162.pdf; International Justice Resource Center, Asylum & The Rights of Refugees, available at http://www.ijrcenter.org/refugee-law/ (Last visited on October 25, 2016).
  3. Convention Governing the Specific Aspects of Refugee Problems in Africa, September 10, 1969, 1001 U.N.T.S. 45 ('OAU Convention'), Art. 1(2)
  4. Cartagena Declaration, November 22, 1984, in Inter-American Commission on Human Rights, Annual Report 1984-85, 190-193, OAS Doc. OEA/Ser.L/V/II.66, doc.10, rev. 1.
  5. Martin Bell & Elin Charles Edwards, Cross-National Comparisons of Internal Migration: An Update on Global Patterns and Trends 14-15 (Technical Paper, UN Department of Economic and Social Affairs Paper No. 1, 2013), available at http://www.un.org/en/development/desa/ population/publications/pdf/technical/TP2013-1.pdf (Last visited on November 13, 2016).
  6. UN Department of Economic and Social Affairs, International Migration Report 2015, UN Doc. ST/ESA/SER.A/384 (September 2016), available at http://www.un.org/en/development/ desaation/migration/publications/migrationreport/docs/MigrationReport2015.pdf (Last visited on November 13, 2016).
  7. International Organization for Migration, Key Migration Terms, available at http://www.iom. int/key-migration-terms (Last visited on October 13, 2016).
  8. Id.

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