A redefinition of the concept refugee and of asylum eligibility criteria

(Propositions sent  to the Swedish Minister of Foreign Affairs and EU Council authorities, 13 October 2015)

By Professor Marcello Ferrada de Noli, SWEDHR Chairman

Introduction

German Chancellor Angela Merkel has recently called Europe’s asylum norms “obsolete” [1] and the ensuing High-level Conference on the Eastern Mediterranean – Western Balkans Route of 8/10 observes that the increasing flows of refugees and migrants “poses significant challenges to border management and asylum systems”. [2] Although some countries, among them Germany, have temporary abandoned the Schengen Agreement, there are no official requests for the annulment or transitory abandonment of the asylum right whose origins are found in the 1951 Refugee Convention. In our view, the imperative task ahead is to revise the 65 years old definition of refugee and to update the asylum eligibility criteria within the context of human rights.

The current endemic migration towards Europe is characterized by a) a mistaken view of a uniform and selective origin of the migrants – wrongly ascribed as being primarily Syrian [see below]; b) a selective targeting of certain EU countries as immigration destiny; c) a high mobility and/or uncertainty in regards to numerous refugees’ intention on whether or where they would petition asylum. For example, the Swedish police authority estimates that during the last month approximately 40,000 refugees have requesting asylum in Sweden while another 40,000 refugees may have come to Sweden without asking for asylum. [3]

A common misconception regarding the current “refugee crisis” is that it is mainly caused by the war situation in Syria. Correspondingly, it is assumed that: i) the outright mainstream of the migrant flow is of Syrian origin; ii) hence, migrants are war-refugees; iii) ergo war-related refugees are entitled to asylum “according to the Genève Convention.”

The media spread of dramatic images – i.e. the corpse of a Syrian child lying on a beach – served as the catalyst for the notions above, which resulted in sectors of the public driving their political representatives, or vice versa, to act for the betterment of the Syrian refugees. And this in turn exacerbated the migrant flow.

However, the Finish MP, Mr Peter Östman (Chairman of the Christian Democratic Parliamentary Group), declared recently that migrants from Syria constitute less than a third of the 350,000 to 400,000 migrants that have come to Europe so far this year. The remainder, says MP Östman, constitute a mixture of people from Africa, the Middle East and South Asia. [4] Further – as reviewed below – the idea that migrants displaced by own choice (war-related or not) are to be equated with “refugees” according to international covenants is mistaken. 

Given this current flood of immigrants to Europe, we wish to call attention to the problem of the existing imprecise definitions of political asylum. Such indefinite classifications may prove seriously damaging to active human rights defenders or politically engaged individuals taking real risks in pursuing resistance to oppression. In order to secure the applicability of true political-asylum criteria in the selection of applicants, we recommend a redefinition of the concept of “political refugee” in Sweden and in generally by the EU countries. 

I

1951 convention

The 1951 Refugee Convention is often confused with the Genève Convention of 1949, which has tangled the debate process. Another confusion is the use of the term “refugee” (such as in “refugee crisis” or “refugees on the way to Europe”) when actually referring to migrants – whatever their reasons – in transit to the country of their choice.

These confusions are highly relevant not only to those tasked with developing standards, but also in societal terms, because it may lead the public to project prejudiced or misunderstood notions about generic migrants onto the residing population of refugees. Further, subsuming the categories of “alien citizens,” “foreign-born,” “refugees,” and “asylum applicants” in the same generic category of “immigrants” is an oversimplification that confounds the debate to the detriment of finding correct solutions for the different situations.

The definition of refugee in the 1951 Convention Article 1, A-2, points to 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; 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.” [5]

It should be noticed that the above definition of refugee (Article 1, A-2) does not refer to individuals migrating for solely for reasons of war. Although it is often said that the Refugee Convention was inspired in Article 14 of the United Nations’ Universal Declaration of Human Rights (“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”), [6] there is no mention of an asylum right based on displacements caused by war or similar disasters. On the other hand, the above cite Article 1, A-2, does not specify an asylum right based on gender identity, despite its incorporation in more recent or updated documents by the United Nations. Such an asylum right may be a vital addition to the current asylum definitions.

Further, it is clear that Article 1, A-2 does include those individuals facing persecution and personal risk for defending civil liberties and human rights in the international context, including whistle-blowers, journalists, and publishers such as Julian Assange and Edward Snowden. Such true political refugees should be granted asylum in any EU country and the definition of “political refugee” must make this distinction unequivocal.

Julian Assange & Edward Snowden

II

Regarding the main assessment criteria, “Well-founded fear of being persecuted,” our opinion is that the phrase “well-founded fear” should either be deleted or be further specified. In the simplest terms, it should read, “being persecuted for reasons of, etc.” The fundamental basis of a case for asylum is the fact of being persecuted much as what constitute a disease is the objective symptom-constellation and not the “idea” of being ill.

A fear of being persecuted, even if deeply experienced, is a subjective perception that is not necessarily equivalent with an actual experience of political persecution. Data from a psychotherapy facility for Chilean refugees at Sollentuna, Stockholm, in the 1980’s, showed that only a lesser proportion among those who have been granted political asylum have actually experienced combat for political aims, participation in political struggles, or even had a political engagement.

Trauma-related psychological injuries have been a frequent reason for political asylum. Our view, however, is that these cases belong to the category of asylum on humanitarian grounds. Certainly, experiences of imprisonment and particularly torture can lead to posttraumatic stress disorder (PTSD) [7] and even increased suicidal behaviour, [8] [9] but in general, PTSD alone is not a self-evident proof of the individual’s participation in political activities that entails persecution. In addition, not all experiences affect individuals uniformly and not all potentially traumatic events result in traumatic experiences or, further, in trauma-related diagnoses.

Paradoxically, the hazards of the migrants’ traveling can represent a potent source for traumatic experiences, and the presentation of symptoms in some cases of declared PTSD could confound the identification of their actual origin (the traumatic event). Further, traumatic experiences followed by other traumatic experiences of the same perceived level can exacerbate the illness status.

In reference to the common practice of giving temporary political asylum to individuals who fail to produce identification documents, it is important to recognize that dramatic developments in electronic communications have taken place in the 65 years since the Refugee Convention was conceived. Modern methods of communication enable both public and officials to rapidly and securely obtain documentation of identity, native country of birth, and the status of risk for political persecution.

Finally, no democratic country in the European Union should be involved in giving asylum to any individual who is responsible for the commission of war crimes. We must also consider whether this restriction should apply to individuals belonging to organisations that advocate the establishment of political systems or ideologies that deny the principle of human rights for all, regardless of gender and ethnicity.

Conclusion

We propose that:

1. The European Council should work for the modernization of the 1951 Refugee Convention. Conditions for the granting of refugee status should be strengthened and become more detailed. The reasons given in the Refugee Convention Article 1, A-2, (individuals persecuted on the reasons of “race, religion, nationality, and membership in a particular social group or political opinion”) should be enhanced and better defined. Addition of such categories as gender identity and whistle-blowing activities is vital. The latter should be specifically defined to include individuals persecuted on the reason of have denounced war crimes and/or breaches against human rights and civil liberties in an international context.

2. A clear and detailed categorization should be established for humanitarian asylum, as distinct from political asylum.

3. EU countries should consider as political refugees those individuals who have fought for the national or international betterment of the human rights and the pursuit of democratic aims and are, for that reason: a) under persecution, or b) detained or imprisoned, or c) at risk of being deported to a third state where they may face imprisonment or capital punishment due to the political content of their activities.

4. The system of temporary asylum based on unknown identity (“lost pass”) should be dropped or restricted to a more specific, limited time period.

Please recognize that our organization does not oppose the right of any person to emigrate to any point in the world for social, economic or personal motivation. Nonetheless, EU countries must distinguish such immigrants from refugees, most specifically true political refugees. We aim to create a more precise normative distinction between these categories, solely in order to secure a fairer selection process on behalf of the truly persecuted. 

References, notes

[1] AFP, “Angela Merkel calls time on Europe’s ‘obsolete’ asylum rules”. The Australian, 8 Oct 2015.

[2] Eastern Mediterranean – Western Balkans route conference, Declaration of the High-level Conference on the Eastern Mediterranean – Western Balkans Route, 8 Oct 2015.

[3] Swedish Televion, SvT, Många flyktingar försvinner utan att söka asyl, 10 Oct 2015.

[4] Peter Östman, Flyktingkris och folkvandring, 3 Oct 2015

[5] United Nations High Commission for Refugees. (2012). Convention relating to the Status of Refugees.

[6] United Nations, The Universal Declaration of Human Rights.

[7] PTSD = posttraumatic stress disorder. Diagnosis described in both ICD–10 (World Health Organization, 1992), code number F43.1, and DSM–IV (American Psychiatric Association, 1994).

[8] M. Ferrada de Noli & Elisabet Sundbom, “Cultural bias in suicidal behaviour among refugees with post-traumatic stress disorder”. Nordic Journal of Psychiatry 50: 185. doi:10.3109/08039489609081407.

[9] M. Ferrada de Noli, Självmord bland invandrare ökar, Läkartidningen, 2014;111:CMWI.

 

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