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Who is a refugee?

In this section we explain the international legal definitions of refugees. We also review the difference between  the terms “refugee” and “asylum seeker”, as well as “internally displaced person” and “stateless person”.

1

Does the law consider me to have refugee status?

There are different types of refugees, and the terminology is often used in broad terms. According to the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“The Convention”) Article 1A(2), a refugee is:

‘A person who owing to a well-founded fear of being persecuted 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 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’

This means that to be considered a refugee, a person must:

  • be outside his/her country of nationality, and
  • have a well-founded fear of persecution,
  • which is due to his/her race, religion, nationality, member of a particular social group or political opinion, and
  • be unable or unwilling to return.

There are, however, certain people who are excluded from obtaining status according to the Convention, regardless of whether or not they fit the description above.

Article 1D-F of the Convention set out specific provisions which may bar you from obtaining refugee status.

According to 1D, persons who are presently receiving protection or assistance from organs or agencies of The UNHCR shall not be able to get refugee status. This section directly applies to Palestinians Refugees who have received assistance from UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) since 1949.

According to 1 E, a person cannot obtain refugee status, if he/she is already regarded as a national of the country he/she has fled. This means that he/she already has the rights and protections afforded to those possessing the nationality of that country.

Lastly, according to 1 F, any person cannot obtain refugee status if there are serious reasons for considering that: (a) he/she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he/she has committed a serious non-political crime outside the country of refuge prior to his/her admission to that country as a refugee; or (c) he/she has been guilty of acts contrary to the purposes and principles of the United Nations.

 

Who is an internally displaced person (IDP)?

Legally, refugees differ from internally displaced persons, known as IDPs. An IDP is someone who is displaced within his/her own country and has not crossed an international border. IDPs are not refugees for, as noted above, to be considered a refugee, a person must be outside his/her country of nationality. IDPs seek safety anywhere they can find it, for example in nearby towns, internal camps, settlements, among other places. IDPs include people displaced by internal strife and natural disaster. Currently they are the largest group that UNHCR assists. While IDPs are not afforded refugee specific protections, IDPs are protected by international human rights law that is binding on their state of residence. Currently, the largest internally displaced populations are in Colombia, Iraq and South Sudan

 

Who is a stateless person?

 

Legally, refugees also differ from stateless persons. A stateless person is someone who is not considered as a national by any State under the operation of its law, according to the 1954 Convention relating to the Status to Stateless Persons. Stateless persons lack citizenship, a legal bond between a government and an individual, which grants the individual political, economic, social and other rights. There are a variety of reasons which can lead to a person becoming stateless. For example, one may become stateless when a state dissolves and separates into two different states, such as the dissolution of the former Yugoslavia and most recently the dissolution of Sudan, which led to the independence of South Sudan. Statelessness may also occur in cases of arbitrary deprivation of nationality, when some states change their nationality laws and decide that a person does not have the right to be a citizen of that country anymore. This usually occurs for reasons that do not accord with international law. Other reasons which may lead to a person becoming stateless are when a person is born to parents of different nationalities and the two nationality legislations contradict each other, or when there is discrimination in certain states for women to pass on their nationality to her children. In some places, birth registration is not systematic, therefore some people remain unregistered.

Article 15 of the Universal Declaration of Human Rights states that everyone has the right to a nationality. In 2016, UNHCR estimated that there were at least 10 million stateless persons worldwide.

2

How does this apply to me?

A refugee is someone who has been forced to flee his/her country because of persecution, war or violence. Refugees have an individualized, objective fear of persecution for the reasons of race, religion, nationality, political opinion, or membership in a particular social group. More than half of the world’s refugees come from Syria, Afghanistan and South Sudan.

A current example of a group of refugees are the Rohingya Muslims, fleeing Myanmar due to a campaign of violence instigated by the national forces specifically against people of their religion. The Rohingya minority ought to be classed as refugees in law, as they have suffered persecution on grounds of their religion, making it unsafe to live or return to their country of origin.  However, one challenge to Rohingya Muslims being recognized as Refugees is that Bangladesh is not a signatory to the 1951 Convention.

Refugees often live in refugee camps or makeshift accommodation for many years, and many children have lived their entire lives in camps. The United Nations High Commissioner for Refugees (UNHCR) identifies and defines different types of refugees. It can select some refugees for resettlement, which means they are transferred from a country in which they have sought protection to another country which has agreed to resettle them as refugees. Of the 22.5 million refugees the UNHCR concerns itself with, less than one per cent are submitted for resettlement. Resulting in many refugees living years of uncertainty and waiting in camps. Usually those who are resettled have specific additional needs or their life may be at risk, and there is no hope of them every returning to their country of origin. Syria has been the largest country of origin for resettled refugees since 2014, and since the eruption of conflict in 2011 80,000 Syrians have been referred for resettlement.

3

How is an asylum seeker different from a refugee?

An asylum seeker is someone who has applied for protection as a refugee and is awaiting the determination of his or her status. There is no international right to be granted asylum—only a right to seek it. However, there are certain safeguards and rights afforded those who are asylum seekers. An asylum seeker must demonstrate his or her fear of persecution in his or her home country to be recognized as a refugee and receive legal protection and material assistance.

Legally, an asylum seeker is someone who has applied for asylum in a certain country and is waiting for a decision on their claim. A refugee has already received a positive decision on their claim. This is a crucial difference, as often these terms are used interchangeably, when there are very clear distinctions between the two. Ordinarily those who have left their country of origin to seek international protection are classified as “asylum seekers.”

It is important to note, however, that refugee status determination is declarative, not constitutive. As stated in paragraph 28 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition… recognition of his refugee status does not therefore make him a refugee but declares him to be one.” This means that one should not have to formally go through refugee status determination to be legally considered a refugee. Nonetheless, this is often the case. In a vast majority of host countries, you should expect to engage in some refugee status determination process to be considered a refugee formally.

 

Resettlement vs spontaneous arrivals:  

Resettlement and asylum systems are separate processes, even though there are few differences between resettled refugees and those who are granted asylum. Resettled refugees are usually identified as refugees in camps near to their country of origin, before being transferred to the country which has agreed to resettle them. According to the Refugee Council, In the United Kingdom, resettled refugees are already recognised as refugees before arriving in the country, so they do not go through the asylum application process. In terms of asylum, anyone has the right to claim asylum in a country, including the UK, as per the 1951 Convention. However, many European countries, including Britain, require that a refugee must have already arrived in the country’s territory in order to be able to make a claim for asylum.

The other crucial difference, is the support given to those who qualify for resettlement and those who qualify for asylum. In the UK for example, resettled refugees, once accepted and transferred to another country, are given housing and a year of specialist support to help them access employment and other crucial services such as healthcare. However, none of this is offered to refugees who have been granted asylum in the UK, and they are often expected to rebuild their lives themselves, with no support from the government. Refugee Council has reported that this often results in homelessness and destitution among newly granted refugees.

 

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