With all the talk of “bespoke” humanitarian schemes, Home Secretary Priti Patel’s refusal to use the word “refugee” and the rejection of the international system for the protection of refugees we see in the Nationality and Borders Bill currently before Parliament, you would be forgiven for thinking the Refugee Convention is out of fashion. It shouldn’t be. The Refugee Convention was designed by refugees for refugees for exactly this kind of situation.
But it was cleverly and thoughtfully constructed to be of wider use as well. The convention is intended to meet the basic needs of refugees but also recognises the desire of nation states to control their borders.
Origins of the Refugee Convention
There have been refugees as long as there have been war, famine and cruelty, but international refugee law first emerged after the First World War. Millions of refugees fled from revolution, persecution then famine in Soviet Russia. With the entrenchment of the nation state model in Europe, it was no longer possible for them to simply leave one country and settle in another as refugees always had in the past.
In 1921 a League of Nations High Commissioner for Refugees was appointed. This was the Norwegian Fridtjof Nansen, who, by lending his name to the ‘Nansen passport’, was to become eponymous with refugee protection in the interwar years. There were hundreds of thousands of Russians destitute on the streets of Europe and beyond and their plight was worsened by Soviet legislation that stripped them of their citizenship. They were soon joined by Armenians then, in the 1930s, by Jews.
The first attempt at a protective treaty was the Convention Relating to the International Status of Refugees in 1933. Only a handful of states signed up to it and it was insufficiently flexible or robust to offer protection to the many refugees by then fleeing Nazi persecution. Another ineffective convention was agreed in 1938 and this was followed by a further abortive effort at the Evian Conference in 1938. Governments were unwilling to agree to binding commitments. Like the present government of the United Kingdom, they preferring to offer what we might call “bespoke” schemes over which they could exercise full control but which assisted very limited numbers.
Many died as a consequence. The Kindertransport are sometimes feted, for example. But those children were orphaned because their parents were refused entry.
After the war, the international community tried again. Tens of millions had been displaced before and during the war: what is now sometimes called a ‘mass influx’ situation was very much in everyone’s minds. This time there were two outcomes: the office of the United Nations High Commissioner for Refugees (UNHCR) and the Refugee Convention itself. The new convention included binding commitments. But they were moderate ones which carefully balanced the humanitarian and human needs of refugees with the sovereign right of nation states to control their own borders.
No right to asylum, only to non-return
The Refugee Convention did not then and does not today include a right to enter a country in order to claim or get asylum. This is despite the Universal Declaration of Human Rights, agreed in 1948, stating that everyone “has the right to seek and to enjoy in other countries asylum from persecution” (Article 14). But not to enter as such, you may note, nor to get asylum.
Instead, the new convention included two articles which were intended to protect refugees fleeing persecution.
The most important is Article 33, the right of non-return or “non-refoulement”:
No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever 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.
We can see the vital importance of this commitment today. The countries adjacent to Ukraine must not refuse to admit a person whose life or freedom would be threatened for one of the five reasons. This duty applies at the border and within the country of refuge. The vast majority of countries around the world respect this principle, which has been argued to have attained the status of customary international law. When large numbers of people are fleeing for their lives, they are almost always permitted to enter adjacent countries.
The duty is also engaged if a refugee were to arrive in a distant country directly by plane, for example, and the only place they could be removed to was a territory where their life or freedom would be threatened.
However, where a refugee passes through a safe country to reach another, Article 33 is not engaged. It is not against the letter of Article 33 of the Refugee Convention for the United Kingdom, for example, to return a refugee to Moldova, as long as that refugee’s life or freedom would not be threatened there. It may represent a profound failure of solidarity with the refugee, and indeed with Moldova, but it is not contrary to Article 33.
It also requires the agreement of the Moldova, which the UK does not have.
Finally, Article 33 is not absolute. The drafters of the Refugee Convention included a national security exception so that countries could protect themselves if necessary, and to encourage countries to agree to ratify the convention. The second part of the article goes on to exclude a refugee whom “there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
Right to unauthorised entry, sometimes
The drafters of the Refugee Convention did not stop there. Many pre-war and wartime refugees had fled through multiple countries to try to reach a place of sanctuary. In order to protect such refugees, Article 31 was included in the convention. This is sometimes referred to as the non-penalisation clause. It prevents countries from imposing penalties on refugees “on account of their illegal entry or presence”.
There are conditions the refugees must meet, though. To be protected by Article 31 the refugee must have come “directly from a territory where their life or freedom was threatened then presented themselves “without delay to the authorities” and be able to “show good cause for their illegal entry or presence”.
Some have tried to argue that the “coming directly” requirement should be taken literally and that travel through a safe third country means a refugee can be penalised. In a landmark case in 1999 called ex parte Adimi, the High Court ruled that the words should be read expansively, with emphasis given to the ‘show good cause’ requirement rather than the speed and means of travel.
Clause 36 of the Nationality and Borders Bill, currently before Parliament, seeks to undo this decision by imposing a domestic statutory definition to the words of an international treaty. Building on this new definition, clause 11 then allows the government to impose “differential treatment” (i.e. penalties) on refugees.
Ignoring Article 31 entirely, clause 39 of the Nationality and Borders Bill will make it a criminal offence for any refugee to enter the United Kingdom without permission. This is obviously and incontestably inconsistent with the Refugee Convention.
It is instructive to consider Article 31 in the context of the Ukraine crisis (see Imagine you are a Ukrainian refugee). Any Ukrainian entering the UK without a visa will be committing a criminal offence under this new law.
Firstly, why should a Ukrainian refugee stop in the first safe country they reach? They may well have perfectly good reasons for not doing so, such as links to another country like the United Kingdom.
Secondly, why should that safe country be forced to host all the refugees because of the accident of proximity? It shows a total lack of solidarity with a country like Moldova, for example, to suggest that all the refugees entering that country from Ukraine should stay there.
Thirdly, how would such a rule work in practice? Refugees cannot and should not be literally detained by the relevant safe third country in order to “protect” other countries further down the line. Aside from the massive breach of human rights that would entail and the violation of other provisions of the Refugee Convention (see below), that would be hugely expensive and involve vast barbed wire camps in order to concentrate and contain those refugees. And if refugees do move on elsewhere, there is no international law or moral obligation for such countries to accept them back again. How would the UK, for example, return Ukrainian refugees back to Moldova? Moldova must always re-admit Moldovan citizens but not others.
The obvious next step is to apply the same reasoning to other refugees from other countries. Why should a Syrian refugee spend years in a refugee camp in Lebanon or Turkey? Why should an Afghan refugee move to Pakistan but no further? Why should those countries host all the refugees?
Right to a normal life, eventually
Refugee lawyers like me tend to focus on Article 1A of the Refugee Convention, which sets out the definition of a refugee. The main concern of a refugee reaching the United Kingdom is the right to stay lawfully. To do that, they have to meet the definition. More on that in a moment.
The Refugee Convention includes many other articles, though, which impart to refugees all sorts of rights. These are intended to protect refugees and also to help them live meaningful lives in the country of refuge. Unusually for a human rights treaty, refugees acquire these rights as they progress along their literal then metaphorical journey. All refugees have the right to protection from refoulement at Article 33, for example, and the right of access to a court. But only refugees physically present in the territory of a country acquire the right to identity papers or non-penalisation. Only a refugee who is lawfully present acquires the rights to self employment and freedom of movement. Rights to work and public housing and welfare only come with subtly different lawful stay.
The idea is that these rights are acquired by refugees as they become more attached to the country of sanctuary. This permits them to live relatively normal lives. Eventually, they will either return to their original country or they will naturalise in a new country.
With the Ukraine crisis, we can all hope that Ukrainians are able to return to their home and rebuild what the Russian army has destroyed. But in the meantime, they should be allowed to get on with their lives as best they can.
Everyone but the Home Secretary Priti Patel talks of Ukrainian “refugees”. It is an interesting and contested term. Some preferred to call those fleeing Syria and elsewhere across the Mediterranean and the English Channel “migrants” rather than “refugees”. It seems that almost everyone accepts that a person fleeing directly from an aggressive, foreign, invading army is a refugee, though.
Strange as it may seem, it is not quite so clear that the formal legal definition of a refugee is yet met by most Ukrainians, though. In international law a refugee must show a well-founded fear of being persecuted for one of five reasons: their race, religion, nationality, membership of a particular social group or political opinion. The concept of being persecuted is considered to be quite a narrow one and it is not clear that most Ukrainians are being persecuted for one of the five reasons. What the majority of Ukrainians are really fleeing at this point is indiscriminate shelling and violence. That said, some have very good cause to fear the Russian invaders, with reports of arrest or kill lists for prominent figures. If the Russians were to win the war, establish a repressive puppet regime which persecuted any returning Ukrainian for their perceived political opinion or their nationality, that would also meet the definition.
This is perhaps where the Refugee Convention falls down. But international human rights law and complementary forms of international protection have filled the gap. EU law, which the United Kingdom has for now retained, protects someone where there is “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. That is exactly the issue so far faced by the majority of Ukrainians who have fled.
The Nationality and Borders Bill
Back in April 2021 I wrote a blog post about why the Refugee Convention still matters. The Ukraine crisis, I hope, shows us all why. Any “bespoke” schemes have to be additional to the Refugee Convention, not instead of.
If the UK does not stick with the Refugee Convention, why should others? That is the essence of international legal agreements. How can we expect Moldova, Poland or other countries to admit refugees if we will not? Without the Refugee Convention we collectively return to the “never again” situation of the 1930s. Individual national solutions for limited numbers of people will never be sufficient.
The Nationality and Borders Bill, by criminalising all unauthorised arrivals of refugees and by then discriminating between refugees on the basis of their mode of travel, drives a coach and horses through the careful design of the Refugee Convention. Parliamentarians should reject it.
If, like me, you regularly end up looking up the exact words of the Refugee Convention and you are frustrated that Google does not seem to know where to send you, there is a html version available here. You’re welcome.
Finally, if you are really interested in all this stuff, I’ve literally just written a new book about it. Refugee Law is available from April 2022 via Bristol University Press. It is accessible — or meant to be at any rate — and aimed at students and early stage lawyers. It covers the development of refugee law in more detail and looks more closely at criticisms of the convention.