Rights of refugees-

Refugees are those that are seeking a sanctuary (safe place) because they are in danger where
they are currently residing, for example Pakistan hosting Afghan refugees. States are not
willing to accept open ended obligations. Some countries cannot provide for itself therefore it
is hard to provide for other countries refugees. Pakistan accepted afghan refugees however
they were directly being linked to terrorism therefore they were re patriated (sent back from
where they came from). Another problem is hostile behavior of transit states therefore it
becomes increasingly difficult some people die or starve or down. Transit states have this
behavior due to fact that it is difficult to distinguish between economic migrants or asylum
seekers and they feel that it is a burden to host economic migrants. Racism and islamophobia
(fear of fact that people migrating from Muslim countries are linked to terrorist activities) are
two issues which are the reason for hostile behavior of transit states.

Chapter 1 of the convention contains general provisions, article 1 contains a definition of

refugee. It is in part a technical definition that refers back to previous documents and
paragraph 2 adds to this definition which states a s a result of events occurring before 1 Jan
1951 and owing to well founded fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinion is outside the country of his
nationality and is unable due to such fear to avail himself the protection of that country or
unable to return to it.

The date is important because the state parties who were involved in drafting the convention
were keen to limit their liability to people who had been refugees during the second world
war and so include events that had already happened. However, with the adoption of the 1967
protocol this definition has lost most of its significance. Some states have signed the
convention but not the protocol.

Concerns about migrants were shown in aliens act and the UK referendum which happened
due to economic migrants’ burden on UK. The US presidential elections, Muslims were
categorically regarded as unwelcome. Every ethnic minority with the exception of Muslims
will be able to obtain citizenship.

Immigrants are those who migrate to another place for economic reasons usually for a better
standard of living. Asylum seekers are the under belly for immigration rules hence widely
criticized by states, problem for developing states because their own ends not being met and
developed want to focus resources on other things. States want criteria to be stricter so
refugees cannot enter states easily. Revision of refugee convention has not taken place hence
countries like Pakistan re patriate.

All migrants are entitled to certain rights by being in the state; right to private life and fair
trial however economic rights are regarded as luxuries therefore they might not be given
easily. Immigrants and descendants must not be discriminated on the basis of ethnicity.
Refugee is a stateless person, so in the absence of being owned there are problems. State has
to give rights but why should they. Universalism says people given rights because they are
humans, relativism says other factors exist. Refugee law poses a threat to human rights law.

The application of the convention has been problematic in some national jurisdictions for
instance the way English courts have interpreted the test for determination of refugee status
and the standard of evidence required, the landmark case is Sivakumaran where it was given
that whether there was a well founded fear of persecution within the meaning of article 1(2)
was to be determined by an objective test, taking into account the circumstances existing in
the country of the refugees nationality and the applicant must show that there was a
reasonable degree of likelihood that he would be persecuted for one of the reasons referred to
in article 1 if returned.
On the facts there was no such real risk if the applicants were returned to Sri Lanka hence
their appeal was rejected. Some have argued that this is a very stringent test, for instance the
court of appeal itself had argued that it would allow a refugee who had genuine fears, albeit
objectively unfounded, to claim refugee status, qualifying it in that the genuine fear would
have to be of a person of reasonable courage, notably not even elaborating what are the
reasonable fears of a person of reasonable courage however, the HOL rejected this argument
and returned to the convention to stress that the protections should be afforded to those who
have a genuine fear that can be objectively demonstrated thus making it harder to claim
refugee status.

The court of appeal’s focus was on the person however they have not been able to
demonstrate what is reasonable courage however the broader picture laid down by the HOL
that the refugee country must be looked at.

In the case of Karunakaran, the question of what standard of proof should be used was at
issue in Karunakaran in which the applicant had been internally displaced from his home on
the Jaffna peninsula to the city of Colombo. The question before the court was whether
international relocation is a legitimate alternative to asylum for a person who otherwise ranks
as a refugee. The home secretary argued that while there was a well-founded fear of
persecution, the applicant did not fear persecution in Colombo, and thus should be returned
there while the applicant argued that this was unreasonable as he had no work, house or
family there. As to the question of how evidence is to be judged, Sedley J gave that a claim to
asylum is not like a claim made in civil litigation. Rather than treat facts as established on a
civil standard, the evidence of her must be treated as a whole, the issue was explained further
in the case of Kaja as not being a process of civil litigation but evaluative of all evidence to
the Sivakumaran standard. Clayton (academic) elaborates that the asylum seeker does not
have to bear the burden of proof and that it is a public law exercise in the need for protection
rather than an exercise improving facts to a standard. Standard or proof must be beyond
reasonable doubt not balance of probabilities.

The ground which was proved more difficult than race or political opinion is particular social
group and thus the meaning of this term must be considered. The terms need to evolve to stay
relevant and their interpretation needs to reflect that, and this is known as the living
instruments approach. In HJ (Iran) and HT( Cameroon) the case involved two gay men who
seek asylum and were initially refused on the basis that they could practice discretion on their
return to Iran however the case was overruled by the Supreme Court and the discretion test
rejected because forcing someone to suppress their sexual orientation is denying them their
fundamental rights to be what they are.

In the case of Islam and Shah, two women fled their abusive husbands after false adultery
claims due to fear of persecution and the HOL established a ground breaking precedent which
held that “women from Pakistan” qualified for protection under the refugee convention as a
particular social group and recognized asylum claims on the basis of gender based
persecution. The lords unanimously rejected the COA Sanchez Trujillo approach which
required the applicants to establish an element of cohesiveness, cooperation and
interdependence in order to qualify for refugee protection as a member of a particular social
group. This decision led to widespread outrage in the UK and the home secretary jack straw
publicly condemned the court’s decision and the convention and said it needs to be reformed.

After the definition the convention goes on to list certain obligations that apply to both state
parties and refugees

Persons who move within their own state are known as internally displaced persons or IDP’s,
the UNHCR often assists such people. The UNHCR in 2016 estimated there are around 21
million refugees in the world however there are 65 million IDP’s and a further 10 million
persons are stateless. They do not enjoy a legal regime and are the responsibility of their own
state of nationality and international law does not intervene although the states owe
obligations to such persons under the human rights treaties to which they are party. The 1998
UN guiding principles on IDP’s is the key document, the principles are not legally binding
but are accepted as setting out coherently the state’s obligations.

Displacement works against the IDP’s because it creates physical, logistical and
administrative obstacles that simply don’t apply to a person that is non- displaced.
Also, another problem is of women and girls as refugees, nearly half the world’s populations
of refugees is female. The problems faced by female refugees are identical to those faced by
women generally, several forms of physical violence and discrimination against women is
endemic in most countries, they are subject to such violations due to fleeing persecution,
social disruption caused by the flight, becoming detached from families and protection
provided by their communities and are foreigners in an alien environment. It is important to
ensure certain measures to avoid violations; interviewing by woman officers, counselling
provided, the special needs of women should be given priority in terms of education and
healthcare.

Another key principle is that if the head of the family is granted refugee status then family
dependents accorded similar status, and unaccompanied minors should also be given refugee
status after all the risk of sending those children to travel such a great distance in certain
circumstances.