Europe, today, is undoubtedly facing one of the most significant migration flows in its history, with a total of 990,671 migrants having crossed its external borders in 2015, according to the International Organisation for Migration (IOM, December 18, 2015).
Hence, it is of no surprise that the migration crisis was the focus of the informal European Union Summit that took place last September, as well as in the agenda of the European Council both in October and December 2015. While much of the debate around these meetings centred on the proposals for the relocation of asylum seekers from Member States at the EU’s external borders to states which have few arrivals, there is another important question that must also be answered - whether those seeking asylum in the EU countries are refugees, a special category of migrants who, under international law, are guaranteed specific protection by their host state, or economic migrants, wishing to improve their circumstances, which the consequence that the EU could begin voluntary repatriation procedures.
The Qualification Directive 2011/95/EU establishes the standards on which asylum is granted within the EU, in accordance with Article 78 of the Treaty on the Functioning of the European Union and Article 18 of the EU Charter of Fundamental Rights. All three documents refer to the Geneva Convention of 1951 and the New York Protocol of 1967 relating to the Status of Refugees, which provide the EU with an internationally accepted definition. The aim of this report is to present the historical context in which this definition was adopted and analyse the criticism it has received, taking into consideration the EU’s protective framework.
1. Birth of International Refugee Law
The current migration crisis is not the first Europe has faced. On the contrary, it was after World War I that the first accords emerged, when the international community was called to address the flight of a large number of Russian and Armenian refugees. Those were the Arrangement with Regard to the Issue of Certificates of Identity to Russian Refugees in 1922 and the Arrangement Relating to the Issue of Certificates of Identity to Russian and Armenian Refugees in 1926; two agreements that are thought to represent a largely humanitarian phase of refugee law (Hathaway, 1990, p. 136). This is because they both encompassed an effort to regularise the status of a large number of people who had been deemed stateless, without examining the cause of each individual’s flight. However, this protection was limited only to those groups of migrants who had fled as a result of World War I, and later to the refugees from Nazi Germany before World War II (Convention Concerning the Status of Refugees Coming from Germany, 1938).
For the refugees who were forced to flee Europe during, or as a result of, World War II, a human rights perspective of refugee law was adopted (Hathaway, 1990, p. 139). The competent authorities at the time, namely the Intergovernmental Committee on Refugees (ICR) and the United Nations Relief and Rehabilitation Administration (UNRRA), examined each asylum seeker’s motives and guaranteed protection only to those who were forced to emigrate ‘on account of their political opinions, religious beliefs [or] racial origin’ (Resolution of the Committee, I.C.R. Doc., July 14, 1938).
It was with this legal background and under the specific post-war conditions that the Geneva Convention of 1951 was drafted. While the Secretary General of the United Nations and states like the United Kingdom and the Soviet Union called for a convention that would address all unprotected persons, France and the United States of America argued that there was a pressing need only for a one that would protect the World War II’s refugees (Hathaway, 1990, p. 149). Further, with regards to other refugee movements around the world, European states maintained that their needs would be better met by regional rather than international documents, insisting on following a case by case classification of refugees, rather than adopting an internationally accepted definition.
Consequently, the 1951 Convention initially applied only to persons who became refugees as a result of events occurring before January 1, 1951 in Europe. It was in 1967 that the New York Protocol expanded the Convention’s scope, by removing this temporal and geographical limitation. As of April 2015, the Geneva Convention and its Protocol have been ratified by 148 states (UNHR, 2015).
2. The 1951 Refugee Definition
According to Article 1A of the 1951 Convention, a refugee is a person who ‘owing to 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.’ Before any further analysis, it should be established that an asylum seeker can be granted the protection of a refugee, regardless of the fact that they might have entered the territory of their host state unlawfully. The 1951 Convention explicitly states that ‘refugees [...] should not be punished for their illegal entry’ (Article 31).
A refugee is, hence, an involuntary migrant who is forced to flee from his/her home state out of fear of persecution either by the state itself or by a group that controls a significant part of its territory and from which the state itself is unwilling or unable to provide protection (Clayton, 2012, p. 463). However, Article 1F provides for three main limitations on refugee status: even if a person could be classified as a refugee under Article 1A, he/she is not awarded with international protection if he/she has committed crimes against humanity, a serious non-political crime, or has been guilty of acts contrary to the purposes and principles of the United Nations, a broad provision that was included to exclude terrorists from the Convention’s protective scope.
Evidently, refugee status and protection heavily depend upon the concept of ‘persecution’ for reason of one of the grounds prescribed in Article 1A. It is on account of that concept that the refugee definition is highly criticised today for being of ‘marginal value’, since persecution is a ‘narrow, under-evolved notion of protection’ (Ayres, 2015). Hathaway (1990) finds that the 1951 Convention provides for a narrow definition that does not serve the best interests of the refugees themselves, but the states’ interests to regulate migration; a compromise between the reality of involuntary migrants and a sovereign state’s prerogative to control its borders.
Furthermore, since the 1951 Convention was meant to address only the problem of the European refugees who had fled as a result of World War II, its definition is very limiting and cannot be applied to most current situations. Ayres (2015) brings the example of migrants from the Democratic Republic of Congo (DRC), whose homes had been destroyed as a consequence of the instability in the area. Even though these people would not face arrest if forced to return to DRC, they would not have the means to survive.
Since the 1967 Protocol did not bring any contextual change to Article 1A, most Third World migrants are de facto excluded from its protective scope; they often leave their homes because of natural disaster or political turmoil (Hathaway, 1990, p. 162). Typically, persons in need in Africa and Asia are assisted by the United Nations High Commissioner on Refugees (UNHCR) on location, providing them with food and shelter, financing for their education and legal assistance, and arranging for their transportation and local resettlement. However, the current situation proves the shortcomings of this practice.
3. Protection awarded to refugees within the EU
It has been argued that through its attempts to build the Common European Asylum System (CEAS), the European Union has overall improved the protection standards for refugees (Kaunert, Léonard, 2011).
Article 2 (d) of the Qualification Directive repeats the 1951 refugee definition. However, in Chapters II and III, it includes detailed provisions for the assessment of applications for asylum, clarifying the meaning of the term ‘persecution’. Specifically, Article 9 provides Member States with a list of acts that are sufficiently serious to qualify as severe violations of a person’s human rights, constituting thus acts of prosecution: physical, mental or sexual violence discriminatory measures, or denial of judicial redress, for example.
Further, Article 10 analyses and defines the reasons behind this prosecution, while Article 4 (4) provides that previous prosecution is a serious indication of an applicant’s well-founded fear. Finally, Article 13 imposes a duty on Member States to grant asylum to the persons who meet the aforementioned criteria.
What is, though, extremely important about the Qualification Directive is that it includes provisions for the qualification of migrants for subsidiary protection in Chapters V and VII. Subsidiary protection is a step lower than asylum and is granted to those who do not qualify as refugees but are able to prove that, if returned to their country of origin, they would face a real risk of serious harm (Article 2f), namely, the death penalty, torture or inhuman treatment or serious threat to their lives by reason of indiscriminate violence in situations of international or internal armed conflict (Article 15).
Finally, it must be noted that even if a migrant is not granted asylum status and protection, a state has to refrain from returning him/her to their country of origin where they may face torture or cruel, inhuman or degrading treatment or punishment. This is the principle of non-refoulement, the cornerstone of international refugee law (Article 33 of the 1951 Convention, Article 21 of the Qualification Directive).
Whatever agreement the EU Member States reach on the distribution of asylum seekers among them, they will still have to decide to whom they will grant international protection. While the CEAS sets out minimum standards and procedures for processing and assessing asylum applications, many EU states have yet to properly implement them (ECRE). Hence, the EU’s next step must focus on the harmonisation of asylum policy and the application of international standards for the protection of the current asylum seekers.
The UNHCR estimates that 49% of the Mediterranean Sea arrivals in Europe during 2015 were of Syrian nationals. Taking into consideration the Syrian Civil War, as well as the general instability in the area, one would conclude that Syrian migrants qualify at least for subsidiary protection, if not for the full one.
Historically, during such mass movements in the aftermath of a conflict, when the reasons for fleeing were evident and there was no capacity to conduct individual interviews, such groups were often declared prima facie refugees (European Parliament Briefing, 2015). However, it is true that thousands of the migrants come from states that have been classified as ‘safe’, as it is also true that most EU Member States do not have in place the institutional framework and the necessary resources that would allow them to screen and accommodate such a large number of people.
In conclusion, it is apparent that even though the current asylum framework provides for a well-rounded protection for refugees, in the face of the 2015 migration flow the EU must act decisively and strategically not only for the relocation of asylum seekers within its borders and the implementation of the CEAS, but also to ensure that protection will be granted to those in need through a re-examination, if need be, of the refugee definition.
This article was originally published in the tenth issue of the magazine, which can be accessed here.