VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

INTERNATIONAL REFUGEE LAW RESEARCH PAPER

MADE BY- AMODH REXWAL, SEMESTER- 9TH, SECTION-A

ROLL NO.-35317703818
 1

THE INTERNATIONAL LAW OF REFUGEE PROTECTION

 2

THE INTERNATIONAL LAW OF REFUGEE PROTECTION

I. PROEM:

Traditionally, the main obstacle facing refugees settling in the developing world has been to
persuade officials that they are genuinely eligible to accept their refugee status.1 Basically, Refugee
law tends mainly, but not necessarily, to be a matter of international public law and is commonly
perceived to be a part of international human rights or humanitarian law. 2 Significantly, there are
various NGOs concerned with refugees, to be sure, and there are IGO networks to share
information on, for instance, the different national criteria for assessing refugee status, and there
are the normal touch points for scholars. 3 However, the United Nations High Commissioner for
Refugees is the key UN agency which protects refugees (UNHCR). 4 The International
Organization of Migration is another international organization that is active in the transportation
of refugees (and migrants more broadly).5 This article illustrates the meaning and rights of refugee.
The article also demonstrates grounds of availing and getting excluded from availing the refugee
protection under the international Law.

II. DENOTATION OF REFUGEE AND SURPLACE REFUGEE:

A. CONNOTATION OF THE NOTION OF REFUGEE:

A refugee is a citizen who has left their own nation because there they are at risk of significant
violations of human rights and persecution. 6 The threats to their protection and survival were so
high that they believed they had no alternative but to flee and seek refuge outside their nation

1
James C. Hathaway, The Rights of Refugees under International Law (CUP 2005) 1-14.
2
‘International Refugee Law’ CARFMS <http://rfmsot.apps01.yorku.ca/glossary-of-terms/international-refugee-
law/> accessed 12 January 2021.
3
‘International Refugee Law’ (American Society of International Law
<https://www.asil.org/community/international-refugee-law> accessed 12 January 2021.
4
‘Refugees and international law’ (2020) <https://www.refugeecouncil.org.au/international-law/2/> accessed 14
January 2021.
5
ibid.
6
‘Refugee, Asylum-seeker and Migrants’ <https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-
migrants/?utm_source=google&utm_medium=cpc&gclid=EAIaIQobChMIp8n-hvuV7gIVQk5gCh3GEw-
lEAAYASAAEgKzgPD_BwE> accessed 12 January 2021.
 3

because they could not or would not be shielded from such dangers by their own government. The
entitlement of refugees to diplomatic security. 7

Albeit, International Refugee Law [IRL] includes a detailed ‘definition of refugee’ 8, guarantees
the right to obtain asylum, and guarantees against being forcefully deported to a country where
persecution would exist (non-refoulement).9 Although the definition of the 1951 Convention
remains the prevailing definition, the definition of refugee has since been changed by regional
human rights treaties in relation to migration crises not protected by the 1951 Convention. 10

The refugee status has been applied to a person who is forced to leave his place of habitual
residence in order to seek asylum in another place outside his country of origin or nationality
because of external violence, occupation, international domination or incidents seriously
disrupting public order in either part or the whole of his country of origin or nationality. 11

B. DEFINITION OF REFUGEE AND PROTECTION BEYOND THE CONVENTION:

In the Soering v United Kingdom12 extradition case, EtCHR, under the European Convention laid
the basic groundwork for the defense against deportation. In the first judgment, in what is now a
long and clear body of jurisprudence, the Court ruled that it would be an infringement of the
Convention to expel a person from another State where there were significant grounds for thinking
that, contrary to Article 3, he or she would face a legitimate risk of care which prohibits torture or
cruel or degrading treatment.

Subsequent rulings stated, without exception, the applicability of this principle, for example in
'protection' or criminal cases,13 and also in the sense of extra-territorial interception operations.14

7
ibid.
8
Article 1(A)(2) of the 1951 Convention describes a refugee as a person who is a national or habitual citizen outside
his or her country who is unable or unable to return because of a well-founded fear of persecution on the grounds of
his or her ethnicity, faith, nationality, political opinion or participation of a specific social community.
9
‘International refugee law (IRL)’
<https://phap.org/PHAP/Themes/Law_and_protection/IRL/PHAP/Themes/IRL.aspx?hkey=8dfbb7e2-3110-4747-
b050-
8511cb227f29#:~:text=The%20Geneva%20Convention%20Related%20to,persecution%20(non%2Drefoulement).>
accessed 12 January 2021.
10
‘ASYLUM & THE RIGHTS OF REFUGEES’ <https://ijrcenter.org/refugee-law/> accessed 12 January 2021.
11
Cartagena Declaration, art 3; OAU Convention 1969, art 1(2).
12
Soering v United Kingdom (1989) 11 EHRR 439.
13
Chahal v United Kingdom (1996) 23 EHRR 413.
14
Hirsi v Italy (2012) (Appl. no. 27765/09).
 4

Interestingly, under the effect of human rights law and procedure, the meaning and scope of the
refugee definition have evolved to the extent that, under some well-defined situations, the need to
defend against the possibility of injury will cause a duty to protect.15

C. CONNOTATION OF THE NOTION OF ‘REFUGEE SUR PLACE’:

persons outside their country of origin can become refugees as a result of changing circumstances
in their home countries or their own actions. Thus, at the time a person left his or her country of
nationality, a well-founded fear of persecution that exists at the time of determination may not
have existed. The UNHCR Handbook states:

94. A person who was not a refugee when he left his country, but who becomes a refugee at a
later date, is called a refugee “sur place”.
95. A person becomes a refugee “sur place” due to circumstances arising in his country of
origin during his absence…

In the Full Federal Court in Somaghi v MILGEA16, Gummow J stated:

‘Article 1A (2) of the Convention, as construed in Chan, requires the decision maker,
as regards an individual then outside the country of his nationality, to determine
whether that person then is unwilling to avail himself or herself of the protection of the
country of nationality owing to a well-founded fear of persecution which now exists
for, inter alia, reasons of political opinion or membership of a particular social group.
It follows that the well-founded fear of persecution which now exists may have arisen
at a time when the person in question was already outside the country of nationality.’

III. THE REFUGEE STATUS DETERMINATION PROCEDURE:

Although both the definition and the status of a refugee are globally dependent, domestic
procedures represent a practical relation between these two elements for the very purpose of

15
Guy S. Goodwin-Gill, ‘The International Law of Refugee Protection’ in Elena Fiddian-Qasmiyeh and et al (eds),
The Oxford Handbook of Refugee and Forced Migration Studies (OUP 2014); Guy S. Goodwin-Gill, ‘The
International Law of Refugee Protection’ (2014)
<https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-9780199652433-
e-021#oxfordhb-9780199652433-e-021-bibItem-15> accessed 13 January 2021.
16
Somaghi v MILGEA (1991) 31 FCR 100 at 116.
 5

determining who is entitled to refugee status. Accordingly, the States recapture a portion of the
sovereignty they have fallen back at the normative level at the implementation stage by committing
to a sufficiently comprehensive regime.

The Geneva Convention does not expressly require, nor specifically control the substance and
functioning of, a refugee status determination process. However, both in theory and in reality, the
concept of a refugee involves some kind of identifying method, although the Geneva Convention
does not specifically apply to any such protocol. 17

Otherwise, States will be obliged to extend the status of asylum to all people seeking refugee status.
This tacit responsibility is also confirmed by some other clauses, such as Articles 9 and 31(2),
respectively. 18

Nonetheless, with due regard to its own legislative and institutional framework, each contracting
state should specify the exact content and modalities of these procedures. 19 Notwithstanding this
substantial margin of appreciation, Article 16(1) of the Geneva Convention maintains its
importance because it provides equal access to the courts on an especially inclusive and
unconditional basis.

Entry to asylum courts to review any denial of refugee status is likely part of the broad material
framework of this clause. 20 This is supported by the personal reach of Article 16(1), as the word
'refugee' is specifically apt to cover asylum seekers without any additional qualification due to the
declaratory essence of the acceptance of refugee status.21

Apart from that, indeed, the inherent goal of the refugee status assessment process is to determine
the applicant's civil rights, the primary aim of which is to determine whether an asylum claimant

17
P. Hyndman, ‘The 1951 Convention and Its Implications for Procedural Questions’ (1994) 6 IJRL 246; R. Marx,
‘Non-Refoulement, Access to Procedures, and Responsibility for Determining Refugee Claims’ (1995) 7 IJRL 401.
18
In times of war and other extraordinary situations, Article 9 requires states to take provisional action 'pending a
decision by the Contracting State that the individual is really a refugee.' Article 31(2) concerning limitations on the
travel of refugees further specifies that 'any restrictions shall be enforced only until their national status is regularized,'
thereby presupposing a mechanism for deciding the refugee status.
19
In fact, sophisticated national processes for deciding who is a refugee have been developed by Western states. But
other forms can be taken through the recognition method. States parties to the Geneva Convention which delegate
such a role to the UNHCR, including those from the global South, and/or revert to prima facie community
determination of refugee status, especially in cases of major influx.
20
Hathaway (n 1) 645; J.-Y. Carlier, ‘Droit d’asile et des réfugiés: de la protection aux droits’ (2008) 332 RCADI 76.
21
R v. Secretary of State for the Home Departement, ex parte Jahangeer et al. [1993] Imm AR 564, per Jowitt J., 566;
Krishnapillai v. Minister of Citizenship and Immigration (2002) 3(1) FC 74, paras 31–32, per Décary JA.
 6

is entitled to refugee status, which explicitly encompasses a comparatively large spectrum of civil
rights and social benefits.22 The Human Rights Committee has continued to conclude its
applicability to asylum proceedings, 23 thus considering that the right to a fair hearing does not
extend to 'extradition, dismissal and deportation procedures'. 24

IV. WELL-FOUNDED FEAR OF PERSECUTION:

A. WELL FOUNDED FEAR:
1. DEFINITION OF WELL-FOUNDED FEAR:

Individual States have perceived the Convention's presumption of a well-founded fear of

persecution to compel refugees to indicate that if returning to their country of nationality or
habitual residency, there is a fair likelihood that they will experience persecution. 25 While well-
founded fear applies to a potential possibility of persecution, a well-founded fear is believed to
exist among those who have experienced persecution in the past.26

2. EXISTENCE OF WELL-FOUNDED FEAR:

a. WELL-FOUNDED FEAR AT PRESENT TIME:

In presence of ‘real chance’ of being persecuted, a fear of persecution is considered as well-

founded.27 Additionally, in the case SZDGB v MIAC28, the relevant question is whether, in the
reasonably foreseeable future, the applicant has a present fear of a potential harm. A past lack of
fear or trepidation with a well-founded current fear of potential harm is not inherently inconsistent.

22
Hathaway (n 1) 649; S. Persaud, Protecting Refugees and Asylum Seekers under the International Covenant on Civil
and Political Rights (2006) 15.
23
Adu v. Canada (1997) CCPR/C/60/D/654/1995, para. 6.3; Dranichnikov v. Australia (2006)
CCPR/C/88/D/1291/2004, paras 6.7–7.2.
24
HRCttee, General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial,
CCPR/C/GC/32 (2007), para. 17.
25
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
26
Immigration Rules, 2012, S.I. 2012/11, art. 339K (U.K.).
27
Chan v MIEA (1989) 169 CLR 379 at 389.
28
SZDGB v MIAC (2006) FMCA 341 at 19.
 7

Moreover, the Court in the case MZYXR v MIAC29 found that in the fairly foreseeable future, failure
by a decision-maker to take into account the risk of injury, i.e. by considering only the present or
the immediate future, will constitute a legal error.

Likewise, in case SZQXE v MIAC30 when a decision-maker believes that there is currently no real
risk of harm, it might be appropriate to consider whether a shift in circumstances which can be
readily foreseen may lead to a real risk of harm.

b. PAST WELL-FOUNDED FEAR:

The Court in the case Abebe v The Commonwealth31 states that if an applicant relies on his or her
own previous experiences, then the decision maker 's logical point of departure is whether the
events occurred as claimed, and if so, whether they constituted persecution for a Convention
reason. Evidence that the applicant was persecuted in the past would give strong backing to the
conclusion that the alleged fear is well founded.

3. ELEMENTS OF WELL-FOUNDED FEAR:

In the case, MIEA v Guo32 the Court found two requirements for definition of ‘well-founded fear’
and these are subjective element and objective element. That is, the definition will be satisfied if
an applicant can exhibit genuine fear based on a 'real chance' of persecution for a reason stipulated
by the Convention. Justice Dawson stated in Chan’s case:

‘The phrase “well-founded fear of being persecuted...” contains both a subjective and an
objective requirement. There must be a state of mind - fear of being persecuted - and a
basis - well-founded – for that fear’33

Again, the Court in the case Chen Shi Hai v MIMA34 held that the phrase 'well-founded' adds an
objective element to an applicant 's requirement that actually he must be afraid. There has to be a

29
MZYXR v MIAC (2013) FCA 252 at [22]; MIAC v SZQKB (2012) FCA 1189 at [42].
30
SZQXE v MIAC (2012) FCA 1292 at [7].
31
Abebe v The Commonwealth (1999) 197 CLR 510.
32
MIEA v Guo (1997) 191 CLR 559.
33
Chan v MIEA (1989) 169 CLR 379; MIEA v Wu Shan Liang (1996) 185 CLR 259
34
Chen Shi Hai v MIMA (Federal Court of Australia, French J, 5 June 1998) at 14.
 8

logical or objective justification for the fear to be well-founded. Thus 'a well-founded fear' needs
an objective study of the facts on whether fear is legitimate.35

Along with that, the court in SAAD v MIMIA36 held that if the decision-maker feels that there is no
objective reason for fear of persecution, then there is no duty to consider that there is a subjective
fear.37 In furtherance, it was pertinent from the case Czechoslovak national vs. the Interior
Minister38 that without making an application in Germany, waiting in Austria for five months to
apply refugee status proved that applicant had no fear of persecution.

Additionally, in the case Sri Lankan national vs. Immigration Appeal Board39 the Court found that
the applicant established well-founded fear of persecution within the definition of 1951 Refugee
Convention and met both the subjective and objective test since the police could not provide him
any protection for his safety.

B. THE PHRASE ‘PERSECUTION’:

1. CONNOTATION OF THE NOTION OF PERSECUTION:

The 1951 Convention and the 1967 Optional Protocol do not describe persecution. In an effort to
provide guidelines on what constitutes persecution, the Council of the European Union has
provided in the Qualification Directive a non-exhaustive list of acts which may be treated as
persecution, such as: 40

‘acts of physical or psychiatric abuse such as acts of sexual violence; legal, administrative,
police, and/or judicial measures that are discriminatory in themselves or implemented in
such way; conviction that is unfair or discriminatory; deprivation of judicial remedy that
results in an unreasonable punishment; prosecution or failure to conduct military service
in a war where the performance of military service would require offences or acts falling
under the exclusion clauses as embodied in Article 12(2); acts of a gender-specific or child-
specific nature.’41

35
Chan v MIEA (1989) 169 CLR 379 at 429.
36
SAAD v MIMIA (2003) FCAFC 65 at [38].
37
SAAD v MIMIA (2003) FCAFC 65 at [38]; Selliah v MIMIA (1999) FCA 615 at [40].
38
Czechoslovak national vs. the Interior Minister (1988) Administrative Court.
39
Sri Lankan national vs. Immigration Appeal Board (1984) Federal Court of Appeal, Vancouver
40
‘ASYLUM & THE RIGHTS OF REFUGEES’ <https://ijrcenter.org/refugee-law/> accessed 13 January 2021.
41
ibid.
 9

Persecution may be due to acts by State officials, but may also be carried out by non-State actors,
such as armed groups, terrorist or organized gangs, members of the family or of the general public,
in situations when the State is unable or unable to offer defense. 42

2. GROUNDS OF PERSECUTION:

A person can have well-founded fear of being persecuted for the following five reasons, 43-

a. RACE:

When a has both subject and objective element that proves that he has fear of persecution based
on his race in his country of origin or country of residency, such person may avail the refugee
status.

b. RELIGION:

The Court, in Sri Lankan national vs. Immigration Appeal Board,44 found that the applicant
established well-founded fear of persecution because of his religious view, within the definition of
1951 Refugee Convention and met both the subjective and objective test since the police could not
provide him any protection for his safety.

Contrarily, the Court held that the it has no case to stand since David Hellman could not prove his
membership of a particular group for his different religious view, on the basis of which he had a
well-founded fear of persecution. 45 Again, Court dismissed the appeal since based on objective
element, the applicant within the meaning of 1951 Refugee Convention, did not have a well-
founded fear of persecution which could be unbearable if he stayed in his country of origin for a
longer period.46

c. NATIONALITY:

42
Frances Nicholson and Judith Kumin, A guide to international refugee protection and building state asylum systems
(Inter-Parliamentary Union and UNHCR 2007) 132.
43
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS
137 (Refugee Convention), art 1 (a)(2).
44
Sri Lankan national vs. Immigration Appeal Board (1984) Federal Court of Appeal, Vancouver.
45
David Hellman vs. Immigration Review Tribunal (2000) Federal Court.
46
Turkish national vs. Minister of Interior of Austria (1980) Administrative Court.
 10

The Court found that the conditions on which the claimant depended for admission to Finland had
changed so that he had been able to point out a case of persecution in both Namibia and Zambia
due to his nationality and political views.47

d. MEMBER OF A PARTICULAR SOCIAL GROUP:

However, the US The Board of Immigration Appeals (BIA) held that a specific social community
was created by young women who were members of the Tchamba-Kunsuntu Tribe of northern
Togo who had not been exposed to female genital mutilation as done by that tribe and who opposed
the practice. 48 BIA held that, because their membership was not immutable, members of the taxi-
driver cooperative in El Salvador did not form a social community. 49 BIA argued that in Colombia,
non-criminal, uncompensated informants were not a social group because they did not share a
standard, immutable trait and because they were not a recognizable group, because the very
essence of their work allowed them to work in secrecy. 50

In Benitez Ramos v. Holder,51 a case concerning a withholding of removal claim filed by an El

Salvadoran national, in addition to opposing the social visibility criterion formulated by the BIA,
the US Court of Appeals for the Seventh Circuit also criticized the BIA for inconsistently applying
its own requirements, pointing to the fact that social visibility was not always required by the BIA
itself when determining whether individuals could be said to be members of a specific social group.
Since then, a particular social category has been described as "a group of individuals all sharing a
common, immutable characteristic.52

e. POLITICAL OPINION:

The UK Supreme Court ruled in a landmark ruling in 2012 that the expression of neutrality,
independent of the underlying motivation, deserves protection under the Convention. The Court
ruled that doing nothing was the basis of an act of neutrality and declined to differentiate between
the neutrality of "conscious or committed" and that which is merely a matter of indifference. 53

47
Shuudifonya vs. Ministry of Interior (1988) Supreme Administrative Court.
48
Matter of Kasinga (BIA 1996) 21 I&N 357.
49
Matter of Acosta (BIA 1985), 19 I&N Dec. 211.
50
Matter of C-A- (BIA 2006) 23 I&N 951.
51
Benitez Ramos v. Holder (2009) (7th Cir.) 589 F.3d 426.
52
Cordoba v. Holder (2013) (9th Cir.) 726 F.3d 1106, 1114 (quoting Matter of Acosta, 19 I&N 211, 233 (BIA 1985)).
53
RT (Zimbabwe) v. Secretary of State for the Home Department [2012] UKSC 38 (UK).
 11

V. PROTECTION OF REFUGEE UNDER INTERNATIONAL LAW:

A. PRINCIPLE OF NON-REFOULMENT: A COMMON GROUND FOR
PROTECTION:
1. MEANING AND APPLICATION OF ‘NON-REFOULMENT’:

Non-refoulement applies to the duty of States not to refoule or return a refugee to 'the frontiers of
territory where, on account of his ethnicity, faith, nationality, membership of a certain social group
or political opinion, his life or independence will be threatened.'54 It is a human right which is
universally acknowledged. 55

The US Supreme Court ruled that as it returned Haitians barred on the high seas, the U.S. was not
in default of its non-refoulement duty since the Haitians were not within U.S. territory and thus
the non-refoulement obligation did not extend.56 In addition, A proclamation made on national
radio by then-President Lasana Conté announcing that Sierra Leonean refugees should be detained,
searched and confined to refugee camps contributed to systematic brutality and persecution against
Sierra Leonean refugees to such a serious degree that, amid the continuing civil war, many were
effectively forced to repatriate to Sierra Leone. The ACHPR ruled that the handling of Sierra
Leonean refugees breached the non-refoulement principle and the right of Sierra Leoneans to
freedom from mass expulsion.57

Apart from this, Burundi refugees living in Rwanda was expulsed without any chance to contest
that their rights under the African Charter had been violated through this expulsion. 58 Contrarily,
No breach where Sudan, in collaboration with the UNHCR, declared the termination of Ethiopian
refugee status following the end of the Mengistu regime and where arrangements were in effect
for Ethiopians to get their cases considered who still had a well-founded fear of persecution. 59

54
Refugee Convention, art 33(1).
55
American Convention on Human Rights, art 22(8); Convention against Torture, art 3; the Committee against
Torture‘s General Comment no. 4 [IJRC].
56
Sale v. Haitian Ctr. Council, Inc., (1993) USSC 509 U.S. 155.
57
Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Guinea
(2004) Communication No. 249/02, 36th Ordinary Session.
58
Organisation mondiale contre la torture, Association Internationale des jurists démocrates, Commission
internationale des jurists, Union interafricaine des droits de l’Homme v. Rwanda (1996) Communications No. 27/89-
46/90-46/91-99/93, 20th Ordinary Session.
59
Curtis Francis Doebbler v. Sudan (2009) Communication No. 235/00, 46th Ordinary Session.
 12

Furthermore, the rights to life and freedom from torture were understood by both regional and
domestic courts to include a ban against refoulement. 60 The non-refoulement theory forbids not
only the expulsion of people, but also the mass deportation of refugees. 61

2. EXCEPTION TO ‘PRINCIPLE OF NON-REFOULMENT’:

It is correct that, according to Article 33(2) of the Refugee Convention, if there are reasonable
grounds for finding a refugee to be a threat to the national security of the country of resettlement,
the immunity provided for in Article 33(1) against refoulement cannot be used. It is important to
view this law restrictively and the hazard evaluation must be person and ex-future.62 Besides,
Refoulement can be carried out only where there is a proven risk to national security or to the
society of a refugee country, which is only necessary if refugees are granted the ability to develop
their status as refugees. 63 In compliance with its high principles of human rights and the intent of
the Convention, international law should be believed to have granted this discretion to states in the
strictest way. 64

However, this principle has two essential constraints. Persons who otherwise qualify as refugees
cannot seek asylum under this principle if there are 'fair reasons' to view the refugee as a threat to
the national security of the host country, or if the refugee is a danger to the host community if he
has been convicted of an especially serious crime.65

D. THE PRINCIPLE PF NON-DISCRIMINATION:

Non-discrimination is a central principle of international law and also the cornerstone of all
international human rights instruments. 66 Article 3 of the 1951 Convention allows the Parties to
apply its rules without distinction as to ethnicity, religion or place of origin. The same wording is

60
R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t [2011] EWHC 2937
(Admin.) (U.K.); ECtHR; Case of M.S.S. v. Belgium and Greece [GC] (2011) ECHR, no. 30696/09.
61
African [Banjul] Charter on Human and Peoples’ Rights, art. 12(5).
62
All Answers ltd, 'International Refugee Law' (Lawteacher.net, January 2021) <https://www.lawteacher.net/free-
law-essays/immigration-law/international-refugee-law.php?vref=1> accessed 13 January 2021.
63
ibid.
64
ibid.
65
Refugee Convention, art 33(2).
66
Nicholson and Kumin (n 42).
 13

used in Article II of the OAU Refugee Convention, which also states that no discrimination on the
basis of membership of a single social community can take place. 67

E. REFUGEE ARRIVING CANNOT BE PUNISHED:

The Refugee Convention acknowledges that, in order to seek asylum, refugees frequently have to
enter a country without authorization or with fake documentation.68 Countries that have ratified
the Convention do not sanction refugees for entering or staying without permission or limit their
freedom of travel excessively. 69

F. RIGHTS OF REFUGEE:

As set out in Article 2 of the 1951 Convention, refugees have commitments to their host country.70
The Convention enumerates the rights of refugees in Articles 3 to 34. Some of these protections
extend as soon as a refugee is present in a state or is otherwise subject to its jurisdiction. Others
apply whether, or after a certain period of residency, refugee status has been granted. Of instance,
basic human rights law extends to refugees. 71

1. FREEDOM OF MOVEMENT

Nevertheless, freedom of movement is a vital right for refugees within their host country, too.72
The States shall also give refugees the freedom to choose their place of residence within the
territory and to travel freely within the territory of the State. 73 Meanwhile, States parties are
expected to provide travel papers to refugees allowing them to travel outside the State 'unless
otherwise required for valid reasons of national security or public order.'74

With regard to persistent refugee circumstances in countries with small state capital and/or limited
legal structures for the security of refugees that nevertheless host substantial refugee populations,

67
ibid.
68
‘Refugees and international law’ (2020) <https://www.refugeecouncil.org.au/international-law/2/> accessed 14
January 2021.
69
Refugee Convention, art 31.
70
Nicholson and Kumin (n 42) 201.
71
ibid.
72
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171 (ICCPR), art 12.
73
Refugee Convention, art 26.
74
Refugee Convention, art 28.
 14

freedom of movement is a particularly important issue. 75 Refugee warehousing, in which refugees

are restricted to refugee camps, thereby limiting their access to jobs and schooling, is widely
practiced in those countries. 76

In their national legislation, countries such as Kenya and Ethiopia state that the mobility of
refugees within the world may be limited and that refugees may be confined to live in specified
areas, namely refugee camps. 77

2. RIGHT TO SOCIAL ASSISTANCE AND SOCIAL SECURITY:

Article 24 (labor and social security legislation) of the 1951 Convention, read in accordance with
Article 23 (public relief), establishes a basis for the benefit of social insurance (contributory
schemes) and social assistance to refugees legitimately living in the country (non-contributory
schemes). 78 These laws explicitly take into account conditions in which refugees are struggling to
make a living. 79

There are, however, conditions in which refugees are more likely to be living in the informal sector,
or to have precarious, low-paying or unemployed jobs. 80 They will not be required, under those
circumstances, to apply to social security programs and to enjoy unemployment compensation,
sickness benefits or pensions. This topic may have a disproportionate effect on women whose
childcare obligations mean that they have not served outside the home, or whose job experience
has been disrupted, or who earn lower salaries than men. 81

Hence, it is also necessary for refugees to have access to the social welfare system of the host
country as well. Article 23 of the 1951 Convention aims to ensure that the social support enjoyed
by natives will be accessed by migrants.82

75
‘ASYLUM & THE RIGHTS OF REFUGEES’ <https://ijrcenter.org/refugee-law/> accessed 13 January 2021.
76
U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009 (2009).
77
National Refugee Proclamation, No. 409/2004, art. 21(2) (Eth.); Refugees Act (2014) Cap. 173 § 12(3) (Kenya).
78
Nicholson and Kumin (n 42) 213.
79
ibid.
80
ibid.
81
ibid.
82
ibid.
 15

3. POLITICAL RIGHTS:

As far as civil rights are concerned, refugees are usually not eligible to vote in elections or stand
for office in their asylum country until and until they gain citizenship there. However, the most
preferential consideration offered to foreign nationals in terms of membership and activities in
non-political and non-profit associations and trade unions should be granted.83 All also has the
right to freedom of association with others under international human rights law. 84

4. RIGHT TO SOCIAL WELFARE AND HEALTH CARE:

Everyone is entitled to an acceptable standard of life for health and well-being, comprising food,
clothes, accommodation and medical and social care.85 This has to do with a range of other rights,
access to which should also be provided on a non-discriminatory basis and which are the
underlying determinants of health, along with access to clean, potable water and sufficient
sanitation, and access to knowledge and awareness pertaining to health, particularly sexual and
reproductive health. 86

5. RIGHT TO WORK:

The 1951 Convention specifically recognizes the value for refugees of socioeconomic rights. It
includes four provisions relating to access to jobs and freedom at work: the right to wage earning, 87
the right to self-employment,88 right to practice liberal occupation,89 and the right to benefit from
labor laws.90

It should be permitted for recognized refugees to access the labor market and to participate in
wage-earning jobs, to be self-employed or to practice a liberal occupation in some other way. 91

83
Refugee Convention, art 15.
84
ICCPR, art 22.
85
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III) (UDHR), art 25.
86
Nicholson and Kumin (n 42) 213.
87
Refugee Convention, art 17.
88
Refugee Convention, art 18.
89
Refugee Convention, art 19.
90
Refugee Convention, art 24.
91
Nicholson and Kumin (n 42) 208.
 16

International human rights law also respects the "right of everyone to have the opportunity to earn
a living through a job that he or she freely chooses or accepts."92

6. RIGHT TO EDUCATION:

Reflecting international educational norms, Parliamentarians are urged to ensure that, as mandated
by Article 28 of the CRC, primary education is free and compulsory for all children. This involves
refugee children, whether or not they reside legitimately in the country. Along with that, fund
efforts to ensure stable school environments and boost enrollment and the retention of girls and
boys as refugees. 93

For access to secondary and tertiary education, call for the care of refugees in the same way as
nationals; particularly with respect to fees. 94 Refugees should, at a minimum, be handled in the
same manner as all lawfully resident foreigners, as provided for in Article 22 of the 1951
Convention.

7. OTHER RIGHTS:

Other rights of refugees, including the rights to education, access to justice, jobs and other basic
freedoms and protections equally codified in the universal and regional treaties on human rights,
are also covered by the 1951 Convention. 95

a. SAME TREATMENT AS NATIONALS:

Refugees should be given the same treatment as nationals through their enjoyment of such
privileges, such as access to the courts,96 and some, like the wage-earning work,97 and property
rights,98 should be granted the same treatment as foreign nationals. 99

b. LACK OF EQUAL LEGAL PROTECTION OF FUNDAMENTAL

PRIVILEDGES:

92
International Covenant on Economic, Social, and Cultural Rights (adopted 16 December 1966, entered into force 3
January 1976) UNGA (ICESCR), art 6.
93
Nicholson and Kumin (n 42) 212.
94
ibid.
95
‘ASYLUM & THE RIGHTS OF REFUGEES’ <https://ijrcenter.org/refugee-law/> accessed 13 January 2021.
96
Refugee Convention, art 16.
97
Refugee Convention, art 17.
98
Refugee Convention, art 13.
99
U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009: Ethiopia (2009).
 17

While these rights are protected by the 1951 Convention and by human rights treaties, refugees do
not have the maximum or equal legal security of basic privileges in different countries. For
example, Ethiopia made reservations with respect to public education, 100 and wage-earning
employment,101 and regarded these articles as guidelines rather than commitments.

Besides, Lebanon is home to a significant refugee population, mainly Palestinians, though not a
party to the 1951 Convention. Palestinians are barred from practicing occupations requiring union
membership, like as law, medicine, and architecture, and from registering land by stringent labour
and property laws in Lebanon.102

G. EXCLUSION AND CESSATION OF RIGHTS OF REFUGEE:

1. AVAILING PROTECTION OR ASSISTANCE:

There are some restrictions on obtaining refugee status under 1951 Convention, for instance, a
person already receiving a protection or assistance from UN organ or agency. 103 When a person
avails any kind of protection from any country or organ, he ceases his right to claim refugee status
under the Refugee Convention 1951. For example, Mr. B had both subjective and objective
element of well-founded fear of persecution in his country of origin based on his political opinion
and hence, he has to fee away to Netherlands and claim refugee status here. In the meantime,
UNHCR has gotten the news of Mr. A and for his protection, UNHCR has already provided with
enough assistance. In such circumstances, Mr. A shall not be entitled to avail any refugee status.

2. EXCLUSION FOR COMMITTING SERIOUS ACT:

Likewise, such refugee status can be excluded with respect to serious reasons like- committing
war crime, crime against humanity, non-political crime, guilty of acts contrary to UN’s purpose
and principle. 104 Again, in the case Czechoslovak national vs. the Interior Minister105, the Court
held that neither the recruitment to work as a secret agent nor the interrogation and arrest resulting
from the applicant’s violation of laws amount to political persecution under the meaning of 1951
Refugee Convention.

100
Refugee Convention, art 22.
101
Refugee Convention, art 17.
102
Human Rights Watch, World Report 2014: Lebanon (2014).
103
Refugee Convention, art 1(D).
104
Refugee Convention, art 1(F).
105
Czechoslovak national vs. the Interior Minister (1988) Administrative Court.
 18

a. GUILTY OF COMMITTING SERIOUS CRIME:

Velluppillai Pushpanathan vs. the Minister of Immigration106 decided that the refugee claim was
rejected on grounds of danger to the community because of conviction of a serious crime in the
country of refuge. 107

Similarly, it was reflected in Shuudifonya vs. Ministry of Interior108 that he could not be deported
for specific reasons in terms with Article 1 read with Article 32 of the Convention relating to threat
to national security or engaged in any serious crime. In a 5-3 vote, the Court found that the
conditions on which the claimant depended for admission to Finland had changed so that he had
been able to point out a case of persecution in both Namibia and Zambia due to his nationality and
political views.

In the case Turkish Kurd national vs. Federal Office for the Recognition of Refugees109, the Court
held that the applicant could not be granted refugee status because of pursuing and continuing
terrorist activities in the country of origin and or country of refuge.

Moreover, affirming BIA's claim that other offences not mentioned in the INA could be deemed
by the Attorney General to constitute an especially serious offense for preclusion from the
withholding of removal, ignoring the contrary opinion of the UNHCR guidelines, refusing the
withholding of removal to a national Somali. 110

Importantly, it is affirmed in the case R (on the application of) ABC (a minor) (Afghanistan) v.
Sec’y of State for the Home Dep’t111 that deciding whether there is evidence before the Home
Secretary justifying a serious belief that a serious offence has been committed by the person
seeking protection, the Home Secretary is expected to consider all the circumstances of the
situation, including: The law of England and the law of the country where the offence is seen to

106
Velluppillai Pushpanathan vs. the Minister of Immigration (1998) Federal Court of Appeal.
107
Refugee Convention, art 33.
108
Shuudifonya vs. Ministry of Interior (1988) Supreme Administrative Court.
109
Turkish Kurd national vs. Federal Office for the Recognition of Refugees (1989) Federal Constitutional Court.
110
Ali v. Achim (2006) 468 F.3d 462 (7th Cir.).
111
R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t [2011] EWHC 2937
(Admin.) (U.K.).
 19

have taken place, the individual substantive matrix of the suspected crime, along with any possible
defences, the applicant's age and contexts, as well as, if proven guilty, the probable penalty. 112

Additionally, there must be a high degree of responsibility on the part of the accused perpetrator
to be viewed as a serious crime. In finding that there were substantial reasons for assuming that
the claimant had committed especially serious offences, the Home Secretary erred in finding that
the applicant, a minor from Afghanistan, was likely to have committed a suspected crime
accidentally and refused to take his age and circumstances into account.113

b. GUILTY OF WAR CRIMES, CRIMES AGAINST HUMANITY:

Further, The Upper Tribunal rejected the appeal and ruled that the claimant should be exempt from
the protection of the 1951 Convention and Subordinate Rights on Refugees. The Tribunal held
that, as the applicant had argued, there was no legal necessity for significant involvement, but
whether there was proof on the applicant 's involvement was appropriate to meet the requirement.
The Tribunal found that they were knowingly inhumane acts that caused considerable distress or
severe damage to the body or mental or physical health. 114 Therefore, a person who has committed
‘crimes against humanity or war crimes’115, has done an international crime which prohibits him
to get refugee status or any protection under 1951 Convention.

Also, in Negusie v. Holder,116 the U.S. Supreme Court directed the BIA to decide if the Refugee
Act, which contained the 1967 Optional Protocol barring persons from refugee status who had
committed war crimes and crimes against humanity, included an exception for discrimination
committed through coercion. Nonetheless, the Court found that the BIA had made an error in
leaning on Fedorenko v. United States117 in refusing Negusie, an Eritrean national's asylum
application, in determining that there had been no duress exception because Fedorenko was dealing
with a claim resulting from the Displaced Person Act and not the Refugee Act of 1980.

112
‘ASYLUM & THE RIGHTS OF REFUGEES’ <https://ijrcenter.org/refugee-law/> accessed 13 January 2021
113
ibid.
114
UK - Upper Tribunal (2010) SK (Article 1F(a) - exclusion) Zimbabwe [2010] UKUT 327 (IAC).
115
Rome Statute, art 7,8.
116
Negusie v. Holder (2009) 555 U.S. 511.
117
Fedorenko v. United States (1981) 449 U.S. 490 .
 20

In furtherance, the Irish High Court in A.B. v. Refugee Appeals Tribunal and Minister for Justice,
Equality and Law Reform,118 granted leave to petition for judicial review in the absence of an
appropriate evaluation by the Refugees Appeals Tribunal of whether a former Taliban leader was
directly engaged in war crimes and crimes against humanity. The Court followed the standard set
out in the Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v. B und D119,
whereby a permissive presumption exists that any person who has held a high position within a
terrorist group has engaged in the actions referred to in Article 1F of the 1951 Convention, but the
authorities must nonetheless carry out an evaluation in order to evaluate the individual's personal
role in the performance of those crimes.

c. ACTS CONTRARY TO PRINCIPLES OF UNITED NATION:

Again, the Court held that Revocation of refugee status was lawful for a leading member of an
organization that has committed war crimes, crimes against humanity and acts contrary to United
Nations purposes and principles. 120

d. SLIGHT EVIDENCE OF PARTICIPATION IN CRIME IS ADEQUATE:

Moreover, the Court dismissed the appeal of the applicant not recognizing the refugee status and
stated that when interpreting the interpretation of the exclusion clauses of the 1951 Refugee
Convention, it is not appropriate to show that there is a high degree of proof of involvement in the
said crimes. Instead there is sufficient evidence ("slight evidence") to prove participation in these
crimes. Thus, the Colombian authorities' declaration that the applicant was not criminally
responsible was not an obstacle to the application of the aforementioned exclusion clauses. 121

3. PROTECTION IN OWN OR THIRD COUNTRY:

Alternatively, people who willingly benefit from the protection of their country of origin or
habitual residency, or persons who have earned protection in a third country, shall not be
recognized as refugees. 122

118
A.B. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, [2011] IEHC 198 [2008] 667
Ir. Jur. Rep.[2011].
119
Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v. B und D [2010] ECR I-000.
120
Germany - High Administrative Court of Bavaria (2010) 9 B 08.30223.
121
Spain - High National Court (2011) 680/2009.
122
Refugee Convention, art 1(c).
 21

4. REVOCATION OF GRANTED REFUGEE STATUS:

It is not necessary to determine to the point of utmost certainty that a refugee has committed these
crimes, for the exclusion ground of war crimes or crimes against humanity to be valid, it is
appropriate if severe reasons support this presumption. A revocation of refugee status is also
possible if war crimes or crimes against humanity were committed after the granting of refugee
status.123

Here, it is sufficient to reject refugee claim if serious reasons justify this assumption that henry
had committed international crime. Furthermore, the case 124 concerned an appeal brought before
the High National Court against the Ministry of the Interior 's decision refusing to grant refugee
status based on the application of two exclusion clauses, 125 and the Appeal was rejected.

Howbeit, the membership of an organization which was responsible for committing war crimes
alone is not sufficient to justify exclusion under Article 1F(a) of the Convention on Refugees.
Responsibility for war crimes and crimes against humanity in terms of the International Criminal
Court's Rome Law should be considered. The decision maker will concentrate on the specific role
played by the particular individuals, taking into account all the material aspects of that role to
determine if the necessary degree of involvement is being created.126

In addition, a heightened requirement was articulated by the Attorney General to waive the
inadmissibility of immigrants accused of serious or dangerous offences. 127

VI. DENOUEMENT:

Modern refugee legislation came into its own during the Second World War with the formation of
the UNHCR and the drafting of the Statue of the United Nations High Commission for Refugees
('Statute') and the 1951 Convention on the Status of Refugees ('Convention'), initiated by a
sequence of rather ad hoc interwar procedures.128 Albeit, the definition of a refugee as a person

123
Germany- Federal Administrative Court (2011) 10 C 2.10.
124
Spain-High National Court (2011) 680/2009.
125
Refugee Convention, art 1F(a), 1F(b)
126
JS (Sri Lanka) v Secretary of State for the Home Department, (2010) UKSC 15.
127
ALI v. ACHIM (2006) USA Court of Appeal (seventh circuit), Nos. 05-1194, 05-2028, 05-3009.
128
‘International Refugee Law’ CARFMS <http://rfmsot.apps01.yorku.ca/glossary-of-terms/international-refugee-
law/> accessed 12 January 2021.
 22

with a well-founded fear of persecution proceeds to bear weight, symbolizing one of the important,
if not exclusive, grounds for flight.129 Even so, under the impact of human rights law and
procedure, the meaning and scope of the refugee definition have evolved to the notion that, under
some well-defined situations, the need for protection against the risk of serious injury which cause
a duty of protection.130

).
130
ibid.