Law Relating to Refugees, IDPs and Stateless Persons Study material 1

Historical Development of Refugee Law

The plight of persons fleeing their homelands to seek protection in other lands is as old as
persecution itself. Originally, when a person left his/her country and sought asylum in another
country, it was up to the authorities in the country of asylum to decide whether the individual
would receive protection and not be expelled. Since the sovereign was generally the source of
law, s/he was the ultimate arbiter of how the individual would be treated and what rights would
be accorded.

Collective action by States to confront the problem of forced migration did not occur until the
formation of the League of Nations in 1919 following the end of the First World War. The
League served as an international forum in which States could pursue cooperation not only in the
political sphere to prevent wars and ensure peace, but also in the areas of social and economic
matters.

Refugee Organisations created by the League of Nations

The displacement of about 1.5 million Russians, as a consequence of the 1917 Bolshevik
revolution, civil war, and the 1921 Russian famine, served as the catalyst for collective State
interest in the creation of the first international office for refugees. The lack of clarity as to which
State was responsible for these persons, many of whom required material assistance and lacked a
recognized identity document, and their movement among countries, in some cases as a result of
their expulsion by a country, created tensions among European States.

Therefore, in 1921, the League of Nations created the office of the High Commissioner for
Russian Refugees and appointed Dr. Fridtjof Nansen as the first High Commissioner. Initially,
his responsibilities concerning the Russian refugees included defining their legal status,
organizing their repatriation or allocation to various countries which might be able to receive
them, assisting them with finding work, and with the assistance of aid groups, providing relief to
them. In 1924 his mandate was extended to include Armenian refugees who had fled from
Turkey and then in 1928 to include Assyrian and Assyro-Chaldean and Turkish refugees. He
then carried out the same responsibilities for these two groups and the term “Russian” was
deleted from his title.

Following the death of the High Commissioner in 1930, the League of Nations created the
Nansen International Office for Refugees to carry out the humanitarian assistance work for
refugees previously handled by Nansen. The secretariat of the League of Nations assumed
responsibility for the legal and protection work handled by Nansen, but in practice, it was the
Nansen Office that would carry out both the humanitarian and legal and protection aspects.

In response to the exodus of persons from Germany, in 1933, the League of Nations created a
special organisation, the Office of the High Commissioner for Refugees coming from Germany,
which initially was not part of the League of Nations system due to the membership of Germany
in the League at the time. The office was to assist refugees from Germany in the same manner as
the High Commissioner for Refugees and the Nansen Office, with the secretariat of the League,
had supported other groups of refugees. In 1938, the Office of the High Commissioner for
Refugees coming from Germany also became responsible for refugees fleeing Austria, but this
office was liquidated, along with the Nansen Office, at the end of 1938, and replaced by a High
Commissioner of the League of Nations for Refugees. Consequently, this new High
Commissioner assumed responsibility for the refugees aided by the Nansen Office and the High
Commissioner for Refugees coming from Germany.

The organisations created by States through the League of Nations were the first international
attempts by States to coordinate efforts related to refugees. However, each of the organisations
mentioned above, like other entities created by the League to deal with specific refugee
situations, was only given responsibility for certain nationalities of refugees. States were not yet
ready to deal with refugees as an international phenomenon, but instead considered them to be
discrete localized problems. The refugees’ nationality and the fact that they had crossed an
international border were the defining characteristics of the groups of refugees.

Responsibilities related to International Refugee Law

When the League of Nations appointed Nansen as the first High Commissioner in 1921,
international refugee law was non-existent. However, Nansen's mandate included refugee law
related responsibilities. Specifically, he was to define the legal status of refugees, although his
mandate did not establish how he was to do this. The problems encountered by the refugees
would serve as the catalyst for Nansen’s significant role in the development of international
refugee law. The practical difficulties faced by the de-nationalized Russian refugees, who lacked
identity or travel documents, spurred the Council to call a conference of representatives of
interested governments, which met in August 1921. A second conference was convened in
September 1921, over which Dr. Nansen presided, to further discuss the problem. Dr. Nansen
then consulted with the International Labour Office, legal authorities among the refugees, and a
conference of private organisations and prepared specific proposals on identity papers for the
refugees to be considered by governments. At an inter-governmental conference in 1922, called
by Dr. Nansen, the Arrangement with regard to the Issue of Certificates of Identity to Russian
Refugees was adopted, which provides a common form for the identity certificate as well as
conditions related to its issuance and use by a refugee.
Similar concerns about the situation of Armenian refugees led the High Commissioner to
consider, at the request of the Council of the League of Nations, the issue of identity certificates
for Armenians; Dr. Nansen studied the problem and then drafted an agreement concerning
identity certificates for this group of refugees. He subsequently initiated an agreement that
consolidated and amended the arrangements concerning identity certificates for Russian and
Armenian refugees. Other practical problems faced by the refugees resulted in the High
Commissioner preparing two instruments that concerned the rights of refugees, which were
adopted at an inter-governmental conference in 1928. These arrangements concerned the
personal status, legal assistance, expulsion, taxation, and identity certificates of certain groups of
refugees.

Despite the fact that the Nansen Office was responsible for the humanitarian rather than the legal
and protection work, as noted above, it, nevertheless, was mandated to undertake a function
related to the practical application by States of the arrangements instituted by the first High
Commissioner. Specifically, the Nansen Office was to "[f]acilitat[e], within the limits of its
competence, the application, in particular cases, of the arrangements that have been made for the
benefit of the refugees."

This included "certifying the identity and the position of the refugees", "[testifying to the
regularity, validity, and conformity with the previous law of their country of origin, of
documents issued in such country" among other services]. In addition, although not specified in
its mandate, the Nansen office prepared an agreement, the first one to be legally binding on
States, relating to the protection of refugees, the 1933 Convention relating to the International
Status of Refugees.

As for the High Commissioner's Office for Refugees coming from Germany, it was specifically
instructed to convoke an intergovernmental conference in order to provide "a system of legal
protection for refugees coming from Germany", which it did in the form of the 1936 Provisional
Arrangement Concerning the Status of Refugees Coming from Germany, which concerned
certificates of identity, and the personal status and freedom of movement of refugees, among
other matters. After the drafting of the 1936 Provisional Arrangement, the Office was instructed
by the Assembly of the League of Nations to obtain the accession of States to the Arrangement
and "to prepare an intergovernmental conference for the adoption of an international convention
on the status of these refugees."

The result was the 1938 Convention Concerning the Status of Refugees coming from Germany
that replaced the 1936 Arrangement. The 1938 Convention reiterated most of the provisions
contained in the 1936 Arrangement, but also covered topics such as labour conditions, welfare
and relief, and the education of refugees.

As a result of the creation of a number of agreements for the protection of refugees, when the
High Commissioner of the League of Nations for Refugees was appointed in 1938, following the
liquidation of the office of the High Commissioner’s Office for Refugees coming from Germany
and the Nansen Office, the League of Nations Assembly provided it with a specific supervisory
responsibility related to international refugee law agreements. The High Commissioner was to
"superintend the entry into force and the application of the legal status of refugees, as defined
more particularly in the Conventions of 28 October 1933 and 10 February 1938". Specifically,
the High Commissioner was to ensure that the 1933 Convention relating to the International
Status of Refugees concerning Russian, Armenian, Assyrian, Assyro-Chaldean, Turkish and
other refugees, and the 1938 Convention concerning the Status of Refugees Coming from
Germany were ratified by States and applied by them within their national systems.

Thus, while the first High Commissioner, Nansen, was given a general mandate for defining the
legal status of refugees, the realities of the refugees' situation, in particular, the obstacles they
faced, served as the catalyst for the creation of international arrangements concerning identity
documents and refugees' legal status. Similarly, while nothing in its mandate provided that it
should further develop legal standards for the protection of refugees, the Nansen Office prepared
the first convention to be legally binding on States. In creating the High Commissioner for
Refugees coming from Germany, States recognized that the protection afforded to certain groups
of refugees, such as Russians, Armenians, Turkish, Assyrian, and Assyro-Chaldean refugees
needed to be provided to German refugees. Therefore, the High Commissioner for Refugees
coming from Germany facilitated the creation of two agreements to provide similar rights to
refugees from Germany.

As a result, the first High Commissioner, the Nansen Office, and the High Commissioner for
Refugees coming from Germany contributed to the further development of international
standards for the protection of the categories of refugees who were of their concern. Their work
in this area established an early precedent of involvement by refugee organisations in the
development of international refugee law, which would be reflected in the mandate of the
International Refugee Organisation as well UNHCR’s statutory mandate, as discussed below.

Once international agreements for the protection of refugees had been created, there was a need
to ensure that they were adopted and applied by States. The Nansen Office assisted in ensuring
the application of such agreements in a practical manner, as most likely did the first High
Commissioner. However, it was the High Commissioner of the League of Nations for Refugees
that was first assigned specific responsibilities for the supervision of States' ratification and
application of agreements for the protection of refugees. Therefore, the activities of these early
refugee organisations as well as the mandate of the High Commissioner of the League of
Nations, related to the effectiveness of agreements for the protection of refugees, helped
establish a basis for the involvement of future organisations in this area, including eventually
UNHCR.
Subsequent Refugee Organisations

The forced mass emigration of Jews from Germany led the United States, which was not a
member of the League of Nations, to organize a conference in 1938 of thirty-one States to
discuss co-ordination of support for persons who wished to flee or already had fled Germany
because of persecution. As a result, the Intergovernmental Committee on Refugees was created,
in 1938, to assist Jewish persons to leave Germany and resettle in other countries, through
negotiations with Germany as well as countries of resettlement, but this work was obstructed by
the outbreak of the Second World War.

Renewed cooperation among States was spurred by the situation of millions of displaced persons
in countries liberated by the Allies at the end of the Second World War. In 1943, 44 States
established the United Nations Relief and Rehabilitation Administration to provide material
assistance to displaced persons, who also included persons who had fled because of persecution,
and to facilitate the return of displaced persons to their home countries. However, UNRRA's
work became increasingly difficult as a result of the political changes in Eastern Europe and the
Soviet Union, which deterred many displaced persons from wanting to return. UNRRA then
refused to return persons who did not wish to go back to their home countries. As a result, such
persons were stuck in camps. UNRRA was faced with another significant problem. In 1945, new
refugees had begun fleeing from Germany, Austria and Italy, but UNRRA’s mandate provided
only for support for repatriation, and therefore, the organisation could not facilitate their
settlement in the country in which they had sought refuge or their resettlement in another
country.

States addressed the limitations in UNRRA's capacity by creating the International Refugee
Organisation, as a specialised agency of the United Nations. The mandate of the IRO was "to
bring about a rapid and positive solution of the problem of bona fide refugees and displaced
persons". IRO had broad responsibilities for such persons; it was to carry out the "repatriation;
the identification, registration and classification; the care and assistance; the legal and political
protection; the transport; and the re-settlement and re-establishment, in countries able and willing
to receive them, of persons who are the concern of the Organization". The IRO even sub-let
ships to transport refugees, and its annual budget was four times that of the United Nations.

The IRO essentially assumed responsibility for refugees and displaced persons covered by the
mandates of UNRRA and the IGCR as well as new refugees fleeing from Germany, Austria and
Italy. The IRO’s focus was the repatriation of persons to their home countries. Where such
persons objected to their return because of persecution, reasons of a political nature, or
compelling family reasons or infirmity or illness, they were to remain under the protection of the
IRO and would be assisted with local settlement or resettlement in another country.
 i Origins of International Refugee Law and its Historical Foundations:

The current international system, whose aim is to protect refugees, hails from a long path started
during the First World War with the establishment of several organizations culminating with the
United Nations High Commissioner for Refugees (UNHCR). The concept of asylum, being
present in the traditions of populations since a long time, has acquired importance and distinction
only after the tragic events occurred in the XX century. Particularly speaking, with the end of the
First World War and the Peace Treaty of Paris in 1919, the map of Europe was changed
geographically and politically. In that moment the first phase of protection to refugees or
displaced people was starting.

The evolution of international refugees’ law comes from about eighty to ninety years of
experience in the displacement of population and so a long history of arrangements between
States (in practice and in law). This history is developed around four major pillars:

 What or who is a refugee;

 What means to protect a refugee;
 What are the solutions for the situation of the refugee;
 The necessity of the establishment of an international agency for cooperation about
refugees.

The first international organizations under United Nations were born during the 1920s. They
were ad hoc temporary agencies trying to safeguard the protection of refugees, which was not so
much related to physical protection but to the implementation of legal tools to help them. The
idea of refugee was not spread in the geographical and national sense because it was related to
specific groups coming from specific countries. In 1920, Red Cross helped 800.000 refugees
fleeing from war and Soviet Revolution. Subsequently, being aware of the wide problem of the
displacement of people, international organisms were created in 1921. They were humanitarian
experiences with the aim of repatriation of war soldiers. The Nansen International Office for
Refugees was created in 1930 by the League of Nations to coordinate the control on refugees.
The High Commissioner Office for Refugees from Germany was created in 1936 in order to
facilitate the re-establishment in Europe of Jewish people from Nazi-Germany. Then, Franklin
Roosevelt created the Intergovernmental Committee for Refugees in 1938 to support who wanted
to escape from Germany. To help refugees in Europe in that moment meant to let them travel
around the continent to find better living conditions and to give them solutions to their problems.
There was the necessity of an identity certificate, a piece of paper, which permitted the
movement of refugees giving them rights. The basis of this idea was developed in an initial
agreement between States, in relation to Russian refugees, to make them come back to their
countries after the Soviet Revolution. In this sense, it was necessary the creation of new
arrangements. There was not only the problem of Soviet soldiers, but there were other similar
categories spread all over the world. From this point on the refugee has been identified with
reference to his ethnic group and nationality and so as somebody who should have been a formal
citizen and as somebody who has not the protection of the country of origin.

According to article 2(7) of the UN Charter, UN cannot intervene in matters related to domestic
jurisdictions of any State because of the principle of non- intervention. For this reason UN is not
free to intervene in refugees matters. A way to reconsider the principle of non-intervention in
relation to refugees has been the Convention relating to the Status of Refugees adopted on 28 th
July 1951 by the UN conference convened under General Assembly resolution 429 and entered
into force on the 22nd April 1954. This Convention is based on the principle that individuals
shall enjoy fundamental rights and freedoms without discrimination. “Recognizing the social and
humanitarian nature of the problem of refugees, States will do everything within their power to
prevent this problem from becoming a cause of tension between them.” These considerations
mean that the State is responsible to look after the refugee. The first article stated:

“For the purposes of the present Convention, the term “refugee” shall apply to any person who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or
under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September
1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility
taken by International Refugee Organization during the period of its activities shall not prevent
the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this
section;”

It continues:

“(2) As a result of events occurring before 1 January 1951 and owing to well- founded fear of
being persecuted for reason 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; or who, not having a nationality
and being outside the country of his former habitual residence as a result of such events, is
unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term “the country of his
nationality” shall mean each of the countries of which he is a national, and a person shall not be
deemed to be lacking the protection of the country of his nationality if, without any valid reason
based on well-founded fear, he has not availed himself of the protection of one of the countries
of which he is a national.”

We understand that the aim is to assure the protection of some rights of refugees, to try to
cooperate at international level, especially with the help of UNHCR, and to avoid that the issue
of refugee becomes the starting point of international conflicts and tensions. A refugee is
someone who has left his/ her country of origin and s/he is unable to return.
ii Statutory foundations:

1951 Convention relating to the Status of Refugees

The 1951 Convention relating to the Status of Refugees is the foundation of international
refugee law. It defines the term “refugee”, establishes the principle that refugees should not
be forcibly returned to a territory where their lives or freedom would be threatened: the
principle of non-refoulement, and sets out the duties of refugees and States’ responsibilities
toward them.

The Convention was drawn up shortly after the Second World War, and its authors were
focused on refugee problems existing at that time. The definition of a refugee contained in
the 1951 Convention refers to persons who became refugees as a result of events occurring
before 1 January 1951, and States had to declare whether they would apply that definition
only to events that took place in Europe or also to events in other parts of the world. As new
refugee crises emerged around the globe during the 1950s and early 1960s, it became clear
that the temporal and geographical scope of the 1951 Convention needed to be widened. The
1967 Protocol to the Convention was adopted to do this.

1967 Protocol

The 1967 Protocol is independent of, though integrally related to, the 1951 Convention. The
Protocol removes the temporal and geographic limits found in the Convention. By acceding
to the Protocol, States agree to apply the core content of the 1951 Convention (Articles 2–34)
to all persons covered by the Protocol’s refugee definition, without limitations of time or
place.

Most States have preferred to accede to both the Convention and the Protocol. In doing so,
they reaffirm that both treaties are central to the international refugee protection system.

The 1951 Convention and 1967 Protocol are the modern embodiment of the age-old
institution of asylum, Their strength remains their universal and non-discriminatory character
and the fundamental values they reflect.

iii Defining ‘Refugees’:

A refugee is someone who has left his or her country of origin and is unable or unwilling to
return there because of a serious threat to his or her life or freedom. The international legal
definition of the term is contained in the 1951 Convention. Refugees are entitled to
protection from forcible return to their country of origin (the principle of non-refoulement)
and have other rights and duties that are set out in the 1951 Convention.

According to the 1951 Convention, a refugee is someone who:

• Has a well-founded fear of being persecuted because of his or her: Race; Religion;
Nationality; Membership of a particular social group; or Political opinion.

• Is outside his or her country of origin or habitual residence;

• Is unable or unwilling to avail him- or herself of the protection of that country, or to return
there, because of fear of persecution; and

• Is not explicitly excluded from refugee protection or whose refugee status has not ceased
because of a change of circumstances.

A person is a refugee as soon as the criteria contained in this definition are fulfilled. In other
words, a person does not become a refugee because of a positive decision on an application
for protection. Recognition of refugee status is declaratory: it confirms that the person is
indeed a refugee. While this may sound like a technicality, it is the reason why asylum-
seekers should not be returned to their countries of origin until their claims have been
examined.

Under international law, refugees are persons outside their countries of origin who are in
need of international protection because of a serious threat to their life, physical integrity or
freedom in their country of origin as a result of persecution, armed conflict, violence or
serious public disorder. The need for international protection arises because they are unable
to avail themselves of the protection of their own country against these threats. International
refugee law derives from a range of treaties (universal and regional), rules of
customary international law, general principles of law, and national laws and standards. The
1951 Convention relating to the Status of Refugees and its 1967 Protocol laid the foundation
upon which subsequent regional instruments have built, including the 1969 OAU
Convention, the 1984 Cartagena Declaration, the EU Qualification Directive and other
relevant instruments of the EU asylum acquis communautaire, and the 1966 Bangkok
Principles. Collectively, this body of law, complemented by international human rights law,
makes up the international refugee protection regime under which UNHCR exercises its
mandate responsibilities. More specifically, and for the sake of clarity, individuals fleeing
across borders for the following reasons would be refugees according to the 1951 Convention
definition:

 persecution for reasons of race, religion, nationality, membership of a particular social

group or political opinion;
 armed conflict, which may be rooted in and/or conducted along lines of race, ethnicity,
religion, politics, gender or social group divides;

 violence perpetrated by organized gangs, traffickers, and other non-State actors,

against which the State is unable or unwilling to protect;

 persecution on the basis of sexual orientation or gender identity;

 disasters (including drought or famine) where they are linked to situations of

persecution or armed conflict rooted in racial, ethnic, religious, or political divides, or
disproportionately affect particular groups. Additional grounds can be found in regional
instruments, such as being outside the country
due to ‘events seriously disturbing public order’. The circumstances that underlie these
grounds in a particular situation may equally give rise to refugee status under the 1951
Convention.

iv Principle of ‘non refoulement’ and its significance:

States have non-refoulement obligations under international refugee and human rights law,
whether treaty-based or as part of customary international law.

Under international refugee law, the principle of non-refoulement contained in Article 33(1)
of the 1951 Convention protects refugees from expulsion or return to a threat to their life or
freedom on account of their race, religion, nationality, membership of a particular social
group or political opinion. Asylum-seekers are protected by this principle until their status
has been determined.

The only permissible exceptions to the principle of non-refoulement as provided for in

international refugee law are set out in Article 33(2) of the 1951 Convention. They apply in
two circumstances:

if there are reasonable grounds for regarding an individual refugee as “a danger to the
security of the country in which he [or she] is” or if he or she, “having been convicted by a
final judgement of a particularly serious crime, constitutes a danger to the community of that
country”.

Like any exception to human rights guarantees, Article 33(2) must be interpreted restrictively
and with full respect for the principle of proportionality. This means it must be shown that
the danger posed by the refugee to the security of the host country or to its community is
sufficiently serious to justify refoulement. The “danger to the security” exception requires a
threat to be to the country of refuge itself and to be very serious. The finding must be based
on reasonable grounds and supported by credible and reliable evidence. The “danger to the
community” exception requires a final conviction of a particularly serious crime as well as a
finding that the person constitutes a future risk.

In both cases there must be a rational connection between the removal of the refugee and the
elimination of the danger. Refoulement must be the last possible way to eliminate or alleviate
the danger and it must be proportionate, in the sense that the danger to the country or to its
community must outweigh the risk to the refugee upon refoulement.

As under Human Rights Law:

By contrast, under human rights law, refoulement is never permitted if it would expose the
individual concerned to a risk of torture, or to cruel, inhuman or degrading treatment or
punishment.

Article 3 of the Convention against Torture prohibits the expulsion or return of anyone to a
place where there is a substantial danger of torture. Articles 6 and 7 of the International
Covenant on Civil and Political Rights have also been interpreted as prohibiting expulsion or
return to torture, or to cruel, inhuman or degrading treatment or punishment or the death
penalty. Several regional human rights instruments have similar provisions.

In countries that have acceded to both Conventions, asylum-seekers may invoke protection
under either treaty. There are a number of situations in which this might be relevant: an
individual may have missed a deadline under national law to apply for refugee status, a claim
may have been erroneously denied under refugee criteria, or someone might not qualify for
refugee status yet still be at risk of torture.

However, people who are protected from refoulement under the Convention against Torture
do not necessarily receive other rights and benefits accorded to refugees, although they are
entitled to the rights provided by international human rights law more generally.

While the 1951 Convention and the 1967 Protocol require national implementation, the UN
Committee against Torture, the expert body set up by the Convention against Torture to
monitor implementation by States parties of their obligations under that Convention, can hear
complaints from individuals under specific circumstances. The case-law of the Committee
provides helpful guidance on core human rights obligations, including in cases where
complaints are brought by persons whose applications for refugee status have already been
rejected.
v Rights of Refugees:

In addition to the protections afforded by Articles 31 – 33 of the 1951 Convention (against

punishment for unlawful entry, expulsion and refoulement), the Convention provides for
refugees to acquire other rights, depending on their level of attachment to the country of
asylum. The underlying concept is that the longer the refugee stays in the country of asylum,
the more rights he or she acquires.

Everyone has the right to seek asylum – no matter who they are, where they come from, or
when they choose to flee. The right to seek asylum, along with other rights of refugees, is
outlined in the 1951 Refugee Convention and its 1967 Protocol which has protected the
rights of asylum seekers and refugees since the end of World War II. The legal documents
are the core basis of international refugee protections and define the moral and legal
obligations of countries to refugees and asylum seekers.

One of the most important protections established by the Convention is the core principle of
non-refoulement, the right for refugees and asylum seekers to be protected from forced
returns to a country where they will face serious threats to their life or freedom. This
protection gives asylum seekers the right to seek asylum without fear of being returned to
their country of origin, even if their legal refugee status hasn’t been determined yet. All
countries are accountable for protecting asylum seekers and must accept them when they
arrive at ports of entry.

If a refugee or asylum seeker is denied entry into a country and returned to their country of
origin, they may be forced to return to an armed conflict or war and could be at risk of
persecution, violence and death. To protect people from returning to dangerous situations
where their lives and freedoms are at risk, the right to seek asylum must be upheld.

As discussed, refugees are not only entitled to protection from refoulement. They have a
range of other rights under the 1951 Convention and international human rights law more
generally.

The rights of refugees and those with similar plight could range into various kinds depending
on the circumstance. Here are some of these.

The rights of all asylum-seekers and refugees, regardless of status or length of stay are:-

• Religious practice and religious education (Article 4, no reservations permitted, treatment

as nationals);

• Acquisition of movable and immovable property (Article 13, treatment as favourable as

possible and, in any event, not less favourable than foreigners generally);
• Access to courts and to legal assistance (Article 16, no reservations permitted, treatment as
nationals);

• Elementary education (Article 22(1), treatment as nationals);

• Secondary and tertiary education (Article 22(2), treatment as favourable as possible and, in
any event, not less favourable than foreigners generally); and

• Identity papers (Article 27).

The rights of asylum-seekers and refugees lawfully in the country (from the moment of
application for refugee status) are:-

• Self-employment (Article 18, treatment as favourable as possible and, in any event, not less
favourable than foreigners generally); and

• Choice of residence and freedom of movement within the territory (Article 26, subject to
any regulations applicable to foreigners generally)

The rights of refugees lawfully staying in the country are:-

• Right of association (Article 15, most favourable treatment accorded foreign nationals);

• Wage-earning employment (Article 17, most favourable treatment accorded foreign

nationals);

• Liberal professions (Article 19, treatment as favourable as possible and, in any event, not
less favourable than foreigners generally);

• Housing (Article 21, treatment as favourable as possible and, in any event, not less
favourable than foreigners generally);

• Public relief and social security (Articles 23, 24, treatment as nationals); and

• Travel documents (Article 28).

Rights of refugees habitually resident:-

• Artistic rights and patent rights (Article 14, treatment as nationals).

Subsequent sections provide more detail on the following rights of refugees:

• Freedom of movement;

• Family life, including family unity;

• The right to work;

• The right to education;

• Access to courts;

• The right to social welfare and healthcare; and

• Other rights.

vi Defining ‘Asylum’ and ‘Asylum seekers’

Asylum is a form of protection available to anyone at risk of serious harm in their home
country who must leave in search of safety in another country. The first step for a person
seeking asylum is to leave one's home – one of the most difficult decisions a person will ever
make. In fleeing their home country, they must leave behind everything they’ve ever known
– their friends, family, home, job, personal belongings and sense of security. Asylum seekers
often embark on dangerous journeys across land and sea to reach a new country.

“Asylum-seeker” is a general designation for someone who is seeking international

protection. In some countries it is a legal term referring to a person who has applied for
refugee status and has not yet received a final decision on his or her claim. Not every asylum-
seeker will ultimately be recognized as a refugee. However, an asylum-seeker should not be
sent back to his or her country of origin until the asylum claim has been examined in a fair
procedure.

Even after an asylum seeker reaches their destination, safety isn’t guaranteed until they can
secure refugee status. Asylum claims can take months or even years to process, and
sometimes even longer when the right to seek asylum is suspended during times of crisis.
This was the reality for hundreds of thousands of asylum seekers from Central America,
Mexico and Venezuela who were turned away or expelled due to changes to U.S. asylum and
border policies during the COVID-19 pandemic. While many countries around the world are
re-opening their borders and beginning to process asylum claims again, the road to asylum
can be complicated. Ultimately, all asylum seekers hope to establish refugee status so they
can remain in their new country.
Obligation of Refugees:

Refugees have obligations towards their host country, as set out in Article 2 of the 1951
Convention. Every refugee has duties to the country where he or she has taken refuge.
Refugees must comply with existing laws and regulations and with measures taken by the
authorities to maintain public order (Article 2).

Governments may legitimately expect refugees to comply with general laws, regulations, and
public order measures. Such obligations may not, however, treat refugees less favourably
than other resident aliens. Most important, there is no reciprocity of rights and obligations
under the Refugee Convention. While refugees who breach valid laws of the host country are
clearly subject to the usual range of penalties, states are prohibited from invoking the failure
of refugees to comply with generally applicable duties as grounds for the withdrawal of
rights established under the Convention.

viii. Migrant:

It is important to have a clear understanding as to who may represent the migrants while
studying about the law on refugees. It is equally important to distinguish correctly between
the terms “migrant” and “refugee”. Bringing the two on the same platform can have serious
consequences for the lives and safety of refugees.

A migrant is best understood as someone who chooses to move, not because of a direct threat
to life or freedom, but in order to find work, for education, family reunion, or other personal
reasons. Unlike refugees, migrants do not have a fear of persecution or serious harm in their
home countries. Migrants continue to enjoy the protection of their own governments even
when abroad and they can return home.