The second edition of Professor James Hathaway’s The Rights of Refugees Under International Law, to be published on 22 April 2021, is incredibly well-timed. Our government here in the United Kingdom is proposing “off-shore processing” of asylum claims — if an agreement can be reached with some other country to accept refugees we refuse ourselves — and a two-tier system of refugee protection in which those who arrive by irregular means like small boats are treated differently to those arriving under resettlement schemes. This review is very much written with those proposals in mind. From a rather parochial, UK-centric perspective I have focussed on the refugee rights of non-refoulement, non-expulsion and non-penalisation.

Arguments against these policies have often resorted to legalism: “you can’t do that, it’s illegal!” There are several problems with that approach. One, the United Kingdom has not directly incorporated the Refugee Convention into domestic law, meaning that even if something is in breach of the Convention, there may be no legal remedy available to an individual refugee. Two, even if it were in breach of domestic United Kingdom law, such law could be changed. Three, it persuades precisely nobody: there cannot be a single person anywhere in space or time who has ever changed their mind in response to the assertion. Four, the argument may not be correct anyway. The law is complex and it may be catastrophic to place all of one’s eggs in the basket of a particular interpretation which later turns out to be wrong. It is better to base arguments on values, ethics and morality than on law.

Anyone who nevertheless wants to get a good handle on the legal issues will need to sit and spend some serious time with this excellent new edition of Rights of Refugees. The book weighs in at 1,382 pages and on average around a third to a half of each page consists of footnotes. It is very moderately priced for such a substantial academic text, though, and like Hathaway’s other writing it is easy to read, accessible and persuasive. Following on from a first edition published in 2005, this version has been fundamentally rewritten, although as I am not myself familiar with the first edition I cannot comment on that.

Refugee definition and refugee rights

Hathaway starts by observing that the rights of refugees were in the past largely uncontroversial in the industrialised world because most such countries admitted refugees as long-term residents, either formally or in practice. In doing so, these countries broadly (if incidentally) complied with the requirements of the Refugee Convention. It was therefore the admittance process — the definition of a refugee and status determination — that was controversial. The reverse was true in the developing world, where the vast majority of the world’s refugees are hosted. There, refugee status was seldom contested in practice and large numbers were admitted, but the rights afforded to them by the Refugee Convention were seldom respected.

Industrialised countries are increasingly searching for new ways to limit their liabilities to refugees. The rights set out at Articles 3 to 34 of the Refugee Convention are increasingly contested. These rights are “in no sense anachronistic”, writes Hathaway. They are not defined in absolutist terms and properly understood they are “extraordinarily balanced and resilient”. Hathaway calls for scholars and advocates to engage properly with these issues.

Different rights at different times

The key to understanding why and how the rights are balanced lies in the gradual way in which they are acquired by refugees and the degree to which they are conferred. There are five levels of “attachment” between a refugee and a potential host country described in the different articles of the Refugee Convention and four levels of equivalence. These are as follows:

It can be seen that different rights “attach” to the refugee at different stages. Even then, many rights are still not conferred in absolute terms. A few are, irrespective of how the country concerned treats even its own citizens. But most are granted analogous to one of three defined groups, namely: foreign nationals generally; most favourably-treated foreign nationals; or citizens of the country concerned.

For example, the right to work is addressed in Articles 17, 18 and 19 in respect of wage-earning employment, self-employment and access to the liberal professions. Here in the UK, none of these rights is granted to an unrecognised refugee and all of these rights are granted in full to a recognised refugee. But the Refugee Convention adopts a different approach, treating each of the three aspects of the right to work differently. Refugees “lawfully staying” have to be granted the right of wage-earning employment equivalent to “the most favourable treatment accorded to nationals of a foreign country in the same circumstances”. States must grant the right to self-employment to a refugee “lawfully in their territory” on terms “not less favourable than that accorded to aliens generally in the same circumstances”. And access to the liberal professions is conferred on a refugee “lawfully staying” on terms “not less favourable than that accorded to aliens generally in the same circumstances”.

Refugee status is declaratory in nature (as reiterated very recently by our Supreme Court), meaning that a person meeting the criteria of the refugee definition in Article 1A is a refugee even before formal recognition. The rights of refugees, though, are not granted immediately and absolutely to all refugees. Hathaway argues the drafters were committed to establishing a treaty which was politically realistic and therefore of practical rather than theoretical benefit to refugees (an implicit rebuttal of the attacks on the Refugee Convention by Betts and Collier, for example) and accordingly the Convention “strikes a reasonable balance between meeting the needs of refugees and respecting the legitimate concerns of state parties”.

Non-refoulement and non expulsion

Hathaway argues that the right of non-refoulement “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” is engaged when a refugee is within the jurisdiction of a state. Article 33, which confers this right, says nothing directly on the necessary state of attachment before the right is engaged and it must logically therefore apply to a refugee within a state’s jurisdiction. There is a whole ecosystem of international jurisprudence to draw on when it comes to determining the extent of a state’s jurisdiction, and Hathaway observes that a “legal ruse” like an “international zone” or the Australian law on “exised territory” for immigration purposes cannot in international law oust a state’s jurisdiction or, therefore, its obligation not to refoule refugees.

In contrast, Article 32, which confers the right of a refugee not to be expelled from a host country, only attaches to a refugee lawfully in the territory of a country. The right is not absolute and a refugee can be expelled on grounds of national security or public order following a decision reached in accordance with due process of law.

Those arguing that it is illegal to send refugees to a safe third country — including me — will need to engage with the differences between these two provisions. On the face of it, as Hathaway writes, it is “not necessarily in breach” of Article 33 to remove a refugee to a safe third country. The drafters of the Convention “insisted that they retain the liberty to send refugees onward to a country in which there is no threat of being persecuted”.

It would be Article 32, not Article 33, that would prevent the removal of a refugee to a safe third country. But it is only engaged where a refugee is lawfully in the territory of a country. What does this mean? That the person has been granted a residence permit of some sort and recognised as a refugee? Or merely allowed to remain temporarily and recognised as having made a claim for refugee status pending a final decision? Is what is “lawful” defined by domestic law or international law?

Hathaway argues it is possible — and necessary — to answer such questions by referring to the rest of the Refugee Convention, which has its own unique internal logic. Applying this approach, the different stages of attachment between a refugee and host country should not be confused with one another, because to do so offends basic principles of legal interpretation. So, “lawful presence” should not be confused with “lawful stay” in the context of expulsion; “lawful stay” must mean a proper residence permit following recognition as a refugee, and therefore “lawful presence” must mean something less than that. It must therefore mean what we in the United Kingdom refer to as temporary admission or immigration bail: a legal recognition of presence in the territory but not a residence permit as such. Once a person has claimed asylum, Article 32 means they must not be expelled, at least until their claim is determined.

It is an elegant and persuasive argument. Unfortunately, as Hathaway recognises, the UK Supreme Court in ST (Eritrea) [2012] UKSC 12 (our write-up here) held otherwise. Hathaway analyses and criticises this judgment in some detail but, for refugee rights advocates, an existing Supreme Court judgment is quite a formidable obstacle.

Non-penalisation

One of the other most hotly contested rights of refugees is the right not to be penalised for entering a country illegally. Article 31(1) reads:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Those who argue in favour of a “first safe country” requirement sometimes point to this provision in justification. Firstly, that entirely misses the point that in no way does Article 31 modify the definition of a refugee or mean a refugee who has passed through a safe third country can be sent back to their country of origin to be persecuted. Secondly, Hathaway explains that this interpretation misunderstands the context and history of Article 31, which was intended by the drafters simply to operate as a “show good cause” protection against penalisation. This was the reasoning behind the landmark ex parte Adimi case. It perhaps offers an example of where campaigners would do better explaining why the law is as it is rather than merely exclaiming “it’s the law!”.

Hathaway argues that the word “penalties” in Article 31 should be given a wide meaning and defined as a “loss, disability, or disadvantage.” This would include putting a refugee through a truncated fast-track determination process simply because of their mode of arrival, or subjecting such a refugee to punitive denial of economic or social benefits. He points to a Canadian Supreme Court judgment holding that “obstructed or delayed access to the refugee process is a ‘penalty’ within the meaning of Art. 31(1) of the Refugee Convention.”

On this understanding of the word “penalty” it seems clear that denying settlement to those refugees who enter illegally but not those who enter under resettlement schemes — as the government of the United Kingdom intends — breaches Article 31. As Hathaway argues elsewhere in the book, this may also breach the non-discrimination clause at Article 3 of the Convention, given externalised border controls mean that a refugee’s mode of entry is largely determined by their country of origin, one of the prohibited grounds. The non-discrimination clause prohibits discrimination between one refugee and another and applies only to the rights set out in the Convention. It is not an onerous right and does not prevent discrimination against all refugees equally or on issues not covered by the Convention.

Denying a route to settlement to some refugees but not others surely counts as imposing a penalty under Article 31 and it also has the effect of denying a route to naturalisation, which contravenes Article 34. The UK government’s plan therefore looks very much in breach of the Article 3 obligation.

As the Refugee Convention is not directly enforceable in the United Kingdom, these arguments offer little consolation if the change is implemented by means of primary legislation. Basically, there is no cause of action available to an affected refugee because the courts cannot strike down primary legislation even if it is shown to be incompatible with the Refugee Convention. We might, though, perhaps turn to international human rights law and the European Convention on Human Rights to bolster the Refugee Convention.

Human rights

Just as he pioneered the human rights analysis of the refugee definition, Hathaway propounds a human rights analysis of the rights of refugees. He recognises the shortcomings of both the Refugee Convention and international human rights law and argues that a “creative synthesis” of the two is the best way to protect refugees. This involves recognising the differences between the two regimes as well as searching for areas of cross-fertilisation.

On the non-discrimination provision at Article 3, for example, Hathaway shows that very little can be gleaned from the drafting history as to what was intended to be included within its scope. He suggests that we should look to the parameters of the duty elaborated under international human rights law instead. From a refugee’s point of view, the problem with this is that non-citizenship is generally accepted as a legitimate basis for discrimination and even a differential allocation of rights on the basis of a prohibited grounds will not amount to discrimination if it conforms to international standards of reasonableness.

Hathaway deploys international human rights law to fill in the gaps left by the Refugee Convention. He argues that Article 26 of the International Covenant on Civil and Political Rights and its prohibition of discrimination on various grounds including “other status” should be read as applying to a refugee’s mode of arrival. This is consistent with the approach of finding some “identifiable distinct category” and it would also be appropriate to use Article 3 of the Refugee Convention to inform Article 26 of the ICCPR.

I am not sure this helps a lot with enforceability here in the United Kingdom, unless the same or similar arguments are transferrable to the European Convention on Human Rights. The non-discrimination clause there is Article 14, and it only applies to “the rights and freedoms set forth in this Convention” (emphasis added). The European Convention on Human Rights includes no rights to asylum, to equal treatment between refugees, to be exempt from penalties for illegal entry or for naturalisation to be facilitated. It can be argued that denial of settlement and thence naturalisation engages the right to a private and family life, but that might be something of a stretch for the courts.

These omissions from the European Convention on Human Rights are unsurprising. It can be seen from the table near the start of this review that many of the rights conferred by the Refugee Convention are not what might be considered “standard” human rights. Rights to identity papers, personal status and non-refoulement, for example, are all very much tailored to the specific problems faced by refugees. Other rights, like the rights to life or freedom from torture, that we might hope or expect to see protected are omitted. These lacunae can be remedied by reference to the full panoply of international human rights laws, of which the Refugee Convention is only one part. Hathaway enumerates and examines these rights in order to spell out the internationally agreed minimum universal obligations owed to refugees.

Rights of Refugees is intended by Hathaway to remind us that refugees have specific and special rights. They are not merely “beneficiaries of humanitarian discretion” but are protected by a carefully designed, balanced and fair treaty ratified by 150 countries around the world. It is not easy in countries like the United Kingdom, where there is no clear mechanism to enforce the rights conferred by the Refugee Convention, but nevertheless we must hold governments to account where they seek to resile from the obligations to which they have signed up. Those who are serious about that undertaking would do well to start by reading this excellent and timely book.