Tag Archives: Refugee status

Happy birthday, Geneva Convention!

I tried to photoshop a birthday hat onto the convention but it didn’t work

65 years ago, at a meeting in Geneva on 28 July 1951, a convention was signed that has formed the basis for one of the most enduring international legal regimes, and was eventually signed by 166 countries. This Convention does many things: it defines who is a refugee, who is not, and what obligations States have towards those who are recognized as refugees, particularly in respect to areas such as documentation, access to education and work, and standards of treatment. One of the most important obligation is that States may not return anyone to their country of origin if they could face persecution there. This idea, that States can’t send people to their torture, degradation, or death, has since been included in other conventions, and now is considered part of customary international law. Another, but less well-respected, obligation is that States can’t penalize people for illegal entry if they are fleeing persecution.

Arguably, the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol), are arguably one of the most effective human rights instruments around. Yet there are some, such as the Danish Prime Minister (Denmark: also known for its absurd policy of confiscating valuables from refugees ostensibly to pay for their stay – because let’s face it, the whole idea is to have refugees live with the most indignity possibly, just to prove we have the power) who wish to roll back the 1951 Convention. Because if you can’t live up to the standard, the best approach is to just lower the bar, right?

What the 1951 Convention does and does not do

It defines who is a refugee

Interestingly, the scenario that most people imagine when they think of refugees – in a country at war, a city is bombed, and faced with or fearing destruction of their home and death of family members, they flee – is not really within the 1951 Convention definition of a refugee (Article 1a, for anyone who cares to look). The 51 Convention definition is focused on a “well-founded fear of persecution” due to “race, religion, nationality, political opinion, or membership in a particular social group.” There is a bit more nuance involved, such as determining if the bombings or attacks were directed at a specific ethnic, religious, or other group (i.e., all members of XYZ group support the armed resistance group ABC, hence areas with high population of XYZ group were targeted for bombing). But for this reason, additional legal regimes, with broader definitions of refugees, have sprung up in Latin America, Africa, and, in the EU, under the concept of Subsidiary Protection.And it does raise the question if the definition that we have and use is really the best reflection of the world in which we live.

But the convention is helpful: first, it provides a common definition to which 148 countries have ascribed, and quite a number of these have included the 1951 refugee definition, or something very similar to it, in their national legislation. This common ground hasn’t removed all discrepancies and differences in interpretation among countries, but has certainly provided a common language and an international standard to which each country can be compared. Second, it provides a kind of scaffolding on which additional legal instruments can build. Elements of non-refoulement (non-return to a place of death, torture, or persecution) have been included in other treaties such as the Convention Against Torture and the European Convention on Human Rights, and also help provide protection to those who may not be refugees but may still be in danger. The efforts to improve the situation of stateless people has also built on the successes of the 1951 Convention. Finally, regional agreements allow States to include issues that are relevant to them – not only in terms of refugees, but also taking up issues such as internally displaced persons.

The main issues with the current 1951 refugee definition are as follows: although some of the additional legal instruments allow for a bit of a wider definition of who is a refugee to include people displaced by foreign occupation, invasion, generalized violence, or events seriously disturbing public order, the definition was crafted in the post-WWII context and had specific populations in mind. Although, through legal interpretation and UNHCR’s own efforts, the definition of refugee now comfortably accommodates the situation of LGBTI individuals, other situations which might cause people to flee, such as domestic violence (particularly in male-dominated societies with few/no legal resources or State response), Female Genital Mutilation, violence connected with criminal organizations, discrimination that may not be violent but may impede a normal life, persecution by non-State actors (blood feuds and tribal disputes, for example), and similar kinds of situations.

It defines who is not a refugee

The framers of the convention decided that this concept of protection should only extend to those who deserve it, and should not apply to those who are themselves persecutors or who are fleeing prosecution (not persecution!). So the idea that refugee status protects war criminals and terrorists isn’t true – or rather, if there are war criminals and terrorists who have refugee status, it is because they successfully lied or the country/entity evaluating their case did not do a thorough job investigating them. Interestingly, several individuals who were allegedly perpetrators of genocide or crimes against humanity in Rwanda had gotten refugee status in some countries. Because of the complexity of actually convicting them of genocide or war crimes or crimes against humanity, many of them had their refugee status revoked due to immigration violations for omitting or falsifying information when applying for asylum.

Imagine, then, that our fictional client has an Interpol Red Notice . According to Interpol, “the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision.” Clearly criminal and undeserving of refugee status, right? Well, some countries use criminal prosecution as a way to persecute people, particularly dissidents or opponents, or those who fund opposition parties. Countries such as Azerbaijan, Georgia, Kazakhstan, Russia, and Ukraine have used this tactic. But it’s not limited to Central Asia and Eastern Europe; other offenders include Indonesia, Venezuela, Turkey and Bolivia:

Mr. Ochoa Urioste is a politically active attorney from Bolivia who became the subject of a Red Notice when certain officials within the Bolivian government targeted him for the prosecution of ordinary law crimes, after he refused to participate in the execution of contractual agreements that he found to be illegal — and he publicly criticized President Evo Morales.

Interpol has recently changed its policy to withdraw a “wanted person” alert if the person is confirmed to have refugee status, in recognition of the fact that states may use judicial avenues to persecute people.

[See Part 2: Now you have refugees, what are you meant to do with them?]




Heart of darkness: Life in the Northern Triangle and the failure of international protection (part 1)

Photo: Reuters

Imagine a place where numerous powerful, armed groups operate throughout the territory. In any given city or rural area, two or more of these groups may be active, and there are constant and extremely violent clashes over territory. These armed groups regulate the daily life in areas under their control through curfews, standards of behavior, and conduct surveillance to see who communicates with whom. Add to that, the armed groups frequently demand “rent” (extortion) from citizenry living in their areas of control, from rich and poor alike, from the lady selling food out of a cart to a rich landowner.

They also like to recruit youth, particularly young men, and membership in these groups is for life – any attempt to leave is punished with violent reprisals against the person in question or his or her family. Similarly, young girls are targeted to be forced into sexual “relationships” with members of the group; women and girls are frequently raped and murdered, by their own “partners” and also as reprisals by their “boyfriends'” enemies. Recruitment is not voluntary: either you join, or they assume you must be collaborating with another group and hence are a threat. Refusal to comply with a demand from a member of an armed group, in terms of  refusing recruitment, refusing payment, or refusing sexual relations, will result in death threats. Walking on the wrong side of the street, wearing the wrong clothes, or having the wrong hairstyle can similarly imply affiliation with a group. And death threats often result in  gruesomely violent death: decapitated, hung from bridges, beaten to death, shot multiple times in broad daylight, mutilated. There is almost complete impunity for these crimes: in some places, over 98% of murders go unpunished, because of lack of resources or capacity by the authorities, or because armed groups have infiltrated, corrupted, or threatened police, witnesses, and the judiciary, or because authorities are unwilling or unable to take on groups whose members reportedly number up to 85,000.

Welcome to the Northern Triangle, comprising Honduras, El Salvador and Guatemala. El Salvador, Guatemala, and Honduras consistently rank among the most violent countries in the world. More people were murdered in the city of San Pedro Sula, Honduras, than in the entire country of France in 2015 with a murder rate of 142 per 100,000. The number of homicides in San Salvador was equivalent to the number of homicides in the UK, France, and Germany combined. Sources describe that, “Gang-related violence in El Salvador brought its homicide rate to ninety per hundred thousand in 2015, making it the most world’s most violent country not at war.”  [click here to see homicide rates for South Sudan, Afghanistan, Liberia, Sierra Leone, Iraq and Haiti]. There is almost complete impunity for crimes, over 98% of murders and 95% of sexual attacks go unpunished (and apparently, 2 out of the only 3 shelters for rape survivors in Honduras operate as brothels).


If you lived in this kind of hell, where would you go? What would you do?

If you took your family’s savings and paid a smuggler to take you elsewhere, you would face a long overland journey where you could be subject to physical and sexual abuse (80% of women and girls crossing through Mexico from Central America report having been raped along the way), vulnerable to kidnapping and murder, or might choose a risky form of transportation that could well cost you your life or limbs. You pay a lot of money to make it across the border, and risk dying in the desert. You are intercepted by border control, detained, given a cursory interview, and deported. And then killed.

Wait, what?

Clearly, not everyone who attempts to enter the US, nor everyone originating from these or other Latin American countries, is a person in need of protection as a refugee. But the above scenario should give pause to those who blithely claim that all Central Americans are only economic migrants. And the only way to know for sure if someone is a refugee or an economic migrant is to ask them, in a language they understand, and in a setting that provides sufficient confidentiality.

In essence, the question is whether (a) US procedures give sufficient opportunity for people to explain if they have a fear of returning to their countries, and (b) if that fear is be duly considered in light of US law and international refugee law to decide, on the merits of each individual case, whether that person is a refugee. Refugee advocates argue that neither of these things is happening. Instead, the US government is focused on deterrence and criminalization of those entering its borders “illegally”; officials do not find it disingenuous that everyone must perforce enter illegally if there are no legal channels to do so, even though under international law seeking asylum cannot be penalized as illegal entry.

Human Rights Watch describes, in a 2014 report, what happens to a person once they cross the border:

The vast majority of migrants crossing the US-Mexico border without authorization are placed in detention and undergo a hasty two-part assessment by US officials under either “expedited removal,” for first-time border crossers, or “reinstatement of removal,” for migrants who have previously been deported from the United States.

In either case, to pass the first stage an agent from Customs and Border Protection (CBP) or another US immigration agency must flag the person for a “credible fear” or “reasonable fear” assessment. To pass the second stage, migrants meet with an asylum officer from USCIS who determines whether their fear of return is “credible,” or in reinstatement cases, “reasonable” – that is, whether there is a significant possibility they will prevail in immigration court on their claim for asylum or protection from deportation to a country where they are likely to face torture.

[…] Data for 2011 and 2012 that Human Rights Watch obtained from Customs and Border Protection under the Freedom of Information Act indicate that few Central American migrants are identified by CBP as people who fear return to their country in the first stage of the expedited removal process. The data show that the vast majority of Hondurans, at least 80 percent, are placed in fast-track expedited removal and reinstatement of removal proceedings but only a minuscule minority, 1.9 percent, got flagged for credible fear assessments by CBP. The percentages for Mexico, Honduras, El Salvador, and Guatemala are similar, ranging from 0.1 to 5.5 percent. By comparison, 21 percent of migrants from other countries who underwent the same proceedings in the same years were flagged for credible fear interviews by CBP.

Graphic: HRW


For individuals and families who have been persecuted, brutalized, and abused, one would think that the proper response would involve sensitive staff, specialized care, and an in-depth evaluation of their situation.  Instead, HRW noted that the “US started detaining large numbers of migrant mothers and their children in July 2014 as part of what Homeland Security Secretary Jeh Johnson called an “aggressive deterrence strategy” aimed at Central American unauthorized border crossers, among them many asylum seekers.”

‘The ‘Caravan of the Mutilated’ Shows What People Risk When They Come to America, article by Alice Ollstein & Esther Yu-Hsi Lee (Photo: Esther Yu-Hsi Lee)

“[T]he common thread in DHS’ response to the thousands of women and children arriving at the United States’ southwest border in 2014 was to employ a multi-prong deterrence strategy consisting of (a) launching a multimedia public awareness campaign; (b) increasing U.S. assistance to help Mexico secure its southern border region; (c) decreasing the chances of gaining asylum by expediting the removal process; and (d) carrying out raids in January 2016 in search of individuals deemed to have exhausted their asylum claims. These actions were meant to heighten the challenges associated with coming to the United States and ensure that Central Americans knew about them.” (source)

Indeed, the US government’s policy of making the situation more difficult and dangerous, and making sure migrants know it, appears to have had little impact: “[A]nalysis of Honduran LAPOP survey respondents shows that knowledge of the risks of migration—deportation, border conditions, and treatment in the United States—played no significant role in who had plans to migrate and who did not have such plans.” Plans to migrate, furthermore, were closely linked to whether the person had been victimized once or multiple times in the last year:

“in Honduras, 28 percent of non-victims reported having intentions to migrate, which rises to close to 56 percent of respondents that had been victimized more than once by crime in the previous twelve months intended to migrate. In El Salvador, only 25 percent of non-victims had plans to migrate compared to 44 percent of those victimized multiple times expressing intentions to migrate. Only in Guatemala did non-victims and victims of a single crime report migration intentions at a similar rate.” (source)

It is therefore unsurprising that U.S. District Court Judge James Boasberg, in his February 2015 ruling regarding DHS detention policy, concluded that, “Defendants [DHS] have presented little empirical evidence… that their detention policy even achieves its only desired effect—i.e., that it actually deters potential immigrants from Central America.”

Your tax dollars at work

Immigration advocates slam the increasing tendency in the US to criminalize immigration and immigrants, and to maintain detention, even of families and children, as an integral part of immigration policy. As Raul Reyes described it,

“The underlying problem with immigration detention is that most detainees are only guilty of being in the U.S. without authorization, which is a civil offense, not a crime. Yet detainees are treated like criminals, held behind bars and barbed wire, often in remote locations. In fact, in at least one respect, immigration detainees are treated worse than criminals: Criminal defendants have the right to a speedy adjudication and to court-appointed legal counsel. Immigration detainees do not. Detention punishes people in disproportionate relation to their alleged infractions, and contributes to the misconception that undocumented immigrants are criminals.”

They point out that immigrants are less likely to be criminals than native-born, and that the incarceration rates of the native-born were anywhere from two to five times higher than that of immigrants in 1980, 1990, 2000 and 2010 decennial censuses. Nevertheless,

“Unfortunately, immigration policy is frequently shaped more by fear and stereotype than by empirical evidence. As a result, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. Put differently, immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. In short, immigrants themselves are being criminalized.” (source)

Some immigration advocates estimate that the cost of pursuing immigration as a criminal matter:

In Fiscal Year 2011 alone, “the federal government paid immense sums of taxpayer money to private prison companies, $744 million and $640 million to CCA and GEO Group, respectively.” According to a Grassroots Leadership report, by 2011 Corrections Corporations of America and GEO Group, the nation’s two largest private prison companies, “enjoyed a combined $780 million increase in annual federal revenues since 2005.” The report also notes that since the inception of Operation Streamline until 2012, the federal government spent “$5.5 billion incarcerating undocumented immigrants in the criminal justice system for unauthorized entry and re-entry, above and beyond the civil immigration system.”

Although it is difficult to quantify the full costs of prosecuting individuals for illegal entry and reentry, the National Immigration Forum has estimated that in Arizona alone, the costs are as high “as $10 million per month… [A]nother $3.6 million per month is spent on defense lawyers in Arizona, primarily court-appointed private attorneys. The cost to prosecute defendants in Operation Streamline averages $10,000 a day and $50,000 a week in Tucson alone.”

Put differently, “the cost to house each detainee at Dilley is about $108,000 per year. A study funded by the Immigration and Naturalization Service, of more than 500 detainees between 1997 and 2000, found that 93 percent will appear in court when placed in a monitoring program. The savings of such a program for the 2,400 detainees at Dilley would be about $250 million per year.”And these figures refer only to a single facility. The  U.S. government has the largest immigration detention system in the world:

“Surprisingly, the largest detention and supervised release program in the country is not operated by the U.S. Department of Justice, or DOJ, but by the U.S. Department of Homeland Security, or DHS, which oversees the nation’s immigration detention program. According to the DOJ, its Federal Bureau of Prisons had nearly 200,000 individuals in custody as of December 2015. On the other hand, DHS’s immigration detention program detains around 400,000 people each year.”

And guess what?  “62 percent of all immigration detention beds are operated by for-profit prison corporations. For comparison, 7 percent of federal and state prisoners were held in for-profit prisons in 2005, rising to 8.4 percent by 2014—an increase of just 1.4 percent.”

So, the only reason that people are being detained is because of decisions to criminalize immigration, and then detain people indefinitely at extensive cost to the taxpaper, while serving no real purpose.

“The 2014 budget request for detention was $1.84 billion, a funding level that works out to about $5 million a day. The American Civil Liberties Union estimates that keeping a person in detention costs $161 a day; family detention costs $298 a day.
These costs are especially wasteful given that private companies control about 62% of the immigrant detention beds used by Immigration and Customs Enforcement . That means taxpayer money is going into corporate pockets.
Meanwhile, there are alternatives to detention that are much cheaper. The estimated costs of using electronic ankle bracelets or in-person reporting programs run from 17 cents to $17 a day, says the ACLU. These methods have proved effective as well. In 2013, one pilot program testing such alternatives reported a 99% appearance rate at immigration court hearings among participants, and 79% compliance rate for removal orders.” (source)


See Part 2: Asylum claims from Central America in the US and Canada