THE RIGHTS OF REFUGEES

Group 6

WHO IS A REFUGEE?

Article 1(A)(2) of the 1951 Convention

relating to the status of refugees, defines a
refugee as an individual who is outside his
or her country of nationality or habitual
residence who is unable or unwilling to
return due to a well-founded fear of
persecution based on his or her race, religion,
nationality, political opinion, or membership
in a particular social group. Applying this
definition, Internally Displaced Persons
(IDPs) – including individuals fleeing
natural disasters and generalized violence,
stateless individuals not outside their
country of habitual residence or not facing
persecution, and individuals who have
crossed an international border fleeing
generalized violence are not considered
refugees under either the 1951 Convention
or the 1967 Optional Protocol.
 Countries in the Americas and Africa
experiencing large-scale displacement as
the result of armed conflicts found that
the 1951 Convention definition did not
go far enough in addressing the
protection needs of their populations.
Consequently, both Article 3 of the
Cartagena Declaration and Article 1(2) of
the 1969 OAU Convention, extend
refugee status to an individual who
“owing to external aggression,
occupation, foreign domination or events
seriously disturbing public order in either
part or the whole of his country of origin
or nationality, is compelled to leave his
place of habitual residence in order to
seek refuge in another place outside his
country of origin or nationality.”
Exceptions: Exclusion and Cessation
Clauses
The 1951 Convention places a number of
restrictions on eligibility for refugee
status. Article 1(D) excludes individuals
who, at the time of the 1951 Convention,
were already receiving protection or
assistance from another UN organ or
agency. Article 1(D) largely applied to
Koreans receiving aid from the United
Nations Korean Reconstruction Agency
(UNKRA) and Palestinians receiving aid
from the United Nations Relief and
Works Agency for Palestine Refugees in
the Near East (UNRWA) and continues
to apply to the latter.
Additionally, Article 1(F) excludes
individuals: with respect to whom there
are serious reasons for considering that:
(a) he has committed a crime
against peace, a war crime, or a
crime against humanity, as defined
in the international instruments .
 (b) he has committed a serious
non-political crime outside the
country of refuge prior to his
admission to that country as a
refugee;
(c) he has been guilty of acts
contrary to the purposes and principles of
the United Nations.
Individuals who voluntarily avail
themselves of the protection of their
country of nationality or habitual
residence or individuals who have
received protection in a third country
are also not considered
refugees. See 1951 Convention relating
to the Status of Refugees, art. 1(C).
Case law on Exclusion Clauses

TERRORISM
In Matter of S-K-, 23 I&N 936 (BIA
2006), the U.S. Board of Immigration
Appeals (BIA) held that a Burmese
national who had provided
approximately 700 dollars to the Chin
National Front, which was at the time
considered a Tier III terrorist
organization under U.S. law, was
inadmissible on the grounds that she
had provided material support to a
terrorist organization.
It was irrelevant that the U.S.
Government supported the National
Democratic League, an ally of the Chin
National Front, and that the Chin
National Front fought against the
Burmese Government, to which the
U.S. was opposed. In the wake of
controversy following the broad
application of the material support bar
to refugees and asylum seekers, the
 U.S. Government has subsequently
applied a discretionary waiver to
several organizations, including the
Chin National Front, permitting
refugees who had supported these
organizations to enter the U.S. as
resettled refugees or claim asylum.

WAR CRIMES AND CRIMES

AGAINST HUMANITY
A.B. v. Refugee Appeals Tribunal and
Minister for Justice, Equality and Law
Reform, [2011] IEHC 198 [2008] 667
Ir. Jur. Rep. (5th May, 2011) (H.Ct.)
(Ir.): Irish High Court granted leave to
apply for judicial review where
Refugees Appeals Tribunal had failed
to conduct an adequate assessment of
whether a former Taliban commander
had personally participated in war
crimes and crimes against humanity.
The Court adopted the standard
articulated in Joined Cases C-57/09
and C-101/09 Bundesrepublik
 Deutschland v. B und D [2010] ECR
I-000, whereby there is a permissive
presumption that any person who
occupied a high position within a
terrorist organization participated in
the activities articulated in Article 1F
of the 1951 Convention but authorities
must nonetheless conduct an
assessment to determine the role the
individual personally played in
carrying out such acts.

PARTICULARLY SERIOUS CRIME

Matter of Carballe, 19 I&N 357 (BIA
1986): BIA held that aliens who had
been convicted of a particularly serious
crime within the U.S. were
presumptively dangerous to the
community, denying withholding of
removal to a Cuban national. See
also, Ali v. Achim, 468 F.3d 462 (7th
Cir. 2006) (affirming BIA’s holding
that the Attorney General may consider
other crimes not listed in the INA to
 constitute a particularly serious crime
for preclusion from withholding of
removal, rejecting contrary opinion of
UNHCR guidelines, denying
withholding of removal to a Somali
national.)
 R (on the application of) ABC (a minor)
(Afghanistan) v. Sec’y of State for the
Home Dep’t [2011] (U.K.): In
determining whether there is material
before the Home Secretary that
justifies a serious belief that the
individual who claims protection has
committed a serious crime, the Home
Secretary is required to look at all the
circumstances of the case including:
the law of England and the law of the
country where the crime is said to have
occurred, the individual factual matrix
of the alleged crime including any
potential defenses, the age and
circumstances of the applicant, and the
likely punishment if found guilty. To
be considered a serious crime, there
must be a high degree of culpability on
the part of the alleged offender. Here,
the Home Secretary erred in finding
there were serious grounds for
believing the applicant had committed
a particularly serious crime when she
had found that the applicant, a minor
from Afghanistan, had likely
committed the alleged crime
unintentionally and failed to consider
his age and circumstances.
WHAT RIGHTS DO REFUGEES
HAVE?
Refugee law and international human
rights law are closely intertwined;
refugees are fleeing governments that are
either unable or unwilling to protect their
basic human rights. Additionally, in
cases where the fear of persecution or
threat to life or safety arises in the
context of an armed conflict, refugee law
also intersects with international
humanitarian law.
l. NON-REFOULEMENT
The basic principle of refugee law,
non-refoulement refers to the obligation
of States not to refoule, or return, a
refugee to “the frontiers of territories
where his life or freedom would be
threatened on account of his race,
religion, nationality, membership of a
particular social group or political
opinion.” 1951 Convention relating to
the Status of Refugees, art. 33(1).
Non-refoulement is universally
acknowledged as a human right.
Additionally, both regional and
domestic courts have interpreted the
rights to life and freedom from torture to
include a prohibition against
refoulement. The principle of
non-refoulement prohibits not only the
removal of individuals but also the mass
expulsion of refugees. (African [Banjul]
Charter on Human and Peoples’ Rights,
art. 12(5).
There are two important restrictions to
this principle. Persons who otherwise
qualify as refugees may not claim
protection under this principle where
there are “reasonable grounds” for
regarding the refugee as a danger to the
national security of the host country or
where the refugee, having been convicted
of a particularly serious crime,
constitutes a danger to the host
community. 1951 Convention, art. 33(2).
Case law Non-refoulement

 In Sale v. Haitian Ctr. Council,

Inc., 509 U.S. 155 (1993),the U.S.
Supreme Court held that the U.S. was
not in violation of its non-refoulement
obligation when it returned Haitians
interdicted on the high seas because the
Haitians were not within U.S. territory
and therefore the non-refoulement
obligation did not apply. The
Inter-American Commission on
Human Rights (IACHR) rejected this
reasoning in IACHR, Report No.
51/96, Case 10.675, Haitian Centre for
Human Rights (United States), 13
March 1997. The IACHR held that
the U.S. had violated the petitioners’
right to seek asylum as well as their
right to life, liberty, and security of the
person when it summarily returned
interdicted Haitians – many of whom
were subsequently arrested by Haitian
authorities – without providing them
 with a meaningful opportunity to have
their claims adjudicated. The IACHR
also held that the U.S. had violated
their right to freedom from
discrimination, noting that a much
more favorable policy was applied to
Cubans and Nicaraguans.
 In ECtHR, Case of M.S.S. v. Belgium
and Greece [GC], no. 30696/09,
ECHR 2011, Judgment of 21 January
2011, the ECtHR held that the Belgian
government had violated an asylum
seeker from Afghanistan’s rights under
Article 3 of the European Convention
on Human Rights by returning him to
Greece, the country he had initially
transited through, to adjudicate his
asylum claim because it was common
knowledge that the Greek government
lacked adequate asylum procedures,
thus, placing the applicant at risk of
being returned to Afghanistan where
his life or freedom would be in danger.
 In ACommHPR, Institute for Human
Rights and Development in Africa (on
behalf of Sierra Leonean refugees in
Guinea) v. Guinea, Communication No.
249/02, 36th Ordinary Session,
December 2004, the African
Commission on Human and Peoples’
Rights (ACHPR) found that a
proclamation by then-President Lasana
Conté made over national radio stating
that Sierra Leonean refugees should be
arrested, searched and confined to
refugee camps resulted in widespread
violence and discrimination against
Sierra Leonean refugees to such a
serious degree that many were
 effectively forced to repatriate to Sierra
Leone despite the ongoing civil war.
The ACHPR held that the treatment of
Sierra Leonean refugees violated the
principle of non-refoulement and the
Sierra Leoneans’ right to freedom from
mass expulsion.
2. FREEDOM OF MOVEMENT
At the regional level, the rights to seek
asylum and freedom of movement can be
found within the text of the same
article. See African Charter on Human
and Peoples’ Rights, art. 12(1) and (3);
American Convention on Human Rights,
art. 22. The rights are closely related,
since the inability to return to one’s
country is the basis of an asylum claim
while the ability to leave one’s country is
a prerequisite for claiming refugee status
under the 1951 Convention.
 Freedom of movement, however, is
also a key right for refugees within their
host country. Article 26 of the 1951
Convention provides that States shall
afford refugees the right to choose their
place of residence within the territory
and to move freely within the State.
Meanwhile, Article 28 obliges States
parties to issue refugees travel documents
permitting them to travel outside the
State “unless compelling reasons of
national security or public order
otherwise require.”
Freedom of movement is an especially
important issue with regard to protracted
refugee situations in countries with
limited national resources and/or limited
legal frameworks for protecting refugees
who nonetheless host large refugee
populations. In such countries, refugee
warehousing – in which refugees are
confined to refugee camps, thereby
restricting their access to employment
and education – is commonly practiced.
3. RIGHT TO LIBERTY AND
SECURITY OF THE PERSON

The right to liberty and security of the

person is important in the context of how
asylum seekers are treated within the
intended country of refuge. The national
laws of several countries provide for the
detention of asylum seekers at one point
or another during the adjudication of
their claims. The detention of asylum
seekers is a contentious issue because of
the conditions found in the detention
facilities of several countries. This is
particularly an issue in Greece, a country
overwhelmed by the number of asylum
seekers it receives, many of whom use
Greece as a port of entry as they try to
access other European countries. In order
to clarify which State has responsibility
for a particular asylum applicant, the
Council of the European Union
issued Council Regulation EC No.
343/2003 of 18 February 2003
establishing the criteria and mechanisms
for determining the Member State
responsible for examining an asylum
application lodged in one of the Member
States by a third country
national (commonly known as the
Dublin Regulation).
Under the Dublin Regulation, the State
through which the third country national
first entered Europe is generally
considered the State responsible for
adjudicating that national’s asylum
claim. As a result, many of these
asylum seekers are returned to Greece to
have their claims adjudicated. Human
rights organizations including Amnesty
International have reported on unsanitary
and over-crowded conditions in Greek
detention centers. Amnesty
International, Annual Report 2012
(2012),. Additionally, asylum seekers
have claimed that they did not have
access to a UNHCR representative or
information about how to apply for
asylum while in
detention. The European Court of
Human Rights (ECtHR) has held in a
number of cases that the conditions in the
Greek detention centers violate
individuals’ rights to humane treatment
and dignity under the European
Convention on Human Rights.

4. RIGHT TO FAMILY LIFE

The family is seen as the “natural and

fundamental group unit of society and is
entitled to protection by society and the
State.” See, e.g., International Covenant
on Civil and Political Rights, art. 23(1).
In respect of this right, a number of
countries provide for the granting of
derivative status to dependent relatives.
Thus, where an individual is granted
asylum, his or her dependent relatives
will also receive protection through him
or her. However, should that
individual’s refugee status be terminated,
the status of dependent relatives will also
be terminated. Consequently, these
domestic laws do not preclude dependent
relatives from making their own asylum
claims. National Refugee Proclamation,
No. 409/2004, art. 12(5) (Eth.); Refugees
Act (2014) Cap. 173 § 15(4) (Kenya).
The definition of a dependent relative,
however, varies by the cultural notions of
family prevalent in the State party. In the
U.K., dependents are defined as the
“spouse, civil partner, unmarried or
same-sex partner, or minor child
accompanying [the applicant]; while in
Kenya, dependent relatives include the
brother or sister of an applicant under the
age of eighteen, “or any dependent
grandparent, parent, grandchild or ward
living in the same household as the
refugee.”
OTHER RIGHTS
The 1951 Convention also protects
other rights of refugees, such as the
rights to education, access to justice,
employment, and other fundamental
freedoms and privileges similarly
enshrined in international and regional
human rights treaties. In their enjoyment
of some rights, such as access to the
courts, refugees are to be afforded the
same treatment as nationals while with
others, such as wage-earning
employment and property rights,
refugees are to be afforded the same
treatment as foreign nationals. 1951
Convention, art. 16 (refugees are to be
granted equal access to the courts), art.
17 (refugees are to be afforded the same
access to wage-earning employment as
foreign nationals), art. 13 (refugees are to
be afforded the same rights to moveable
and immoveable property as foreign
nationals).
Despite these rights being protected in
the 1951 Convention and under human
rights treaties, refugees in various
countries do not enjoy full or equal legal
protection of fundamental privileges.
Ethiopia, for example, made reservations
to Article 22 (public education) and
Article 17 (wage-earning employment),
treating these articles as
recommendations rather than
obligations. Although not a party to
the 1951 Convention, Lebanon is host to
a large population of refugees,
predominately Palestinians. Restrictive
labor and property laws in Lebanon
prevent Palestinians from practicing
professions requiring syndicate
membership, such as law, medicine, and
engineering, and from registering
property.