“The term “refugee” shall apply to any 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.”
Even amongst lawyers, this particular bit of legalese makes for a confusing read. It’s effectively one 90-odd word sentence, with nary a full stop to be found. The dependent clauses, lists, and all sorts of superfluous commas combine to make a flowing jumble of semi-alliterative repetition, spinning the reader round until they’re not sure which refers to what or whom.
The thing is, though, to fully understand the ongoing furore about refugees and migrants and crises and flows and all those other flamboyant spoutings, it’s essential to have a grasp of that article. That definition is lifted from the 1951 Convention Relating to the Status of Refugees, albeit slightly edited to make it clearer. It’s agreed to be the authoritative statement of who a refugee is by the vast majority of the nations of the world. As such, it’s the definition that is incorporated into national laws and practices the world over. Governments and judges use that definition every single day when deciding on asylum applications.
When arriving in a country and applying for asylum, a refugee goes through a legal process to determine whether they fit that definition. If they do, there are a whole bunch of legal consequences usually entailing some type of entitlement to stay. If they don’t, they’re subject to the same immigration controls as anyone else.
That’s a long way of saying that the division between refugees and everyone else, within Europe and elsewhere, is based on that definition. When politicians prevaricate about ‘genuine refugees’ compared to ‘economic migrants’, that definition is what they refer to.
A refugee is someone who is defined as such by the Refugee Convention. Unfortunately, that makes it a bit of a shame that the definition is hopelessly broken.
A History of Ideas
When discussing the 1951 Refugee Convention, it’s probably best to begin with its history. The sharper reader will correctly guess that it was adopted in 1951. That isn’t a coincidence; like a lot of other legal developments at the time, it was largely the result of the Second World War.
Before the war, governments had essentially ignored what other governments did to their own people within their own borders. I mean, it was probably considered bad form to exterminate ethnic minorities or cause widespread starvation through the forced imposition of market capitalism on an agrarian economy, but it wasn’t as if there was anything actually wrong with it.
The industrialised horror of the Holocaust changed that, though. Stunned by the systematic slaughter of millions of people, it was collectively decided that enough was enough, and that there had to be some restrictions on what actions governments could legitimately take. And if governments breached those rules and persecuted their own citizens regardless, there had to be some way to make up for it.
The Refugee Convention, then, was written with the guiding principle that every person had value and deserved to be protected. Where their own state inflicts persecution on them, another state should step in to fill the void. German Jews who fled to other countries should have some right to protection from the state in which they found themselves.
Being birthed after a collective guilt trip meant there were still some slightly cold feet about states being able to, say, imprison people for criticising governments. That’s why the quote at the beginning of this piece is slightly edited – the original allows only events occurring in Europe and before 1951 to give rise to refugees, which draws a pretty firm line in the sand. Yes, what happened to the Jews was awful, but our detaining, torturing, and executing our political opponents is different.
That limitation was removed by a Protocol in 1967. But it should be remembered that the Convention was inherently, and intentionally, crippled from the start.
Following that theme, it was used mostly as a propaganda tool throughout the Cold War. Taking in Soviet defectors under the guise of ‘political asylum’ allowed the West to paint itself as the good guys, the champions of freedom and democracy around the world.
Refugees were just as much a political tool then as they are now. During the Cold War, any Western defectors to the Soviets were spies and traitors. This was despite the obvious persecution Western governments inflicted on even suspected political dissenters, behaviour which was vilified when the Soviets did it. The parallels today, such as Edward Snowden being a traitor because he was politically opposed to the wrong government, are striking.
In fact, refugees only really became the defining feature of migration policy after the break-up of the Soviet Union. The war in the Balkans produced tens of thousands of refugees fleeing conflict and arriving en masse in Europe. It was only at this point that European states had to consider the full implications of the Convention.
The Refugee Construct
So what does that all mean today? A good place to start is probably in breaking down the definition to see what boxes a refugee has to tick.
Looking at the Convention, a refugee has four characteristics: they have a ‘well-founded fear’; of ‘persecution’; for one of five reasons; and as a result have had to leave their own country or can’t return.
Divorced from context and from one another, they seem fairly reasonable. A government shouldn’t have to wield its full power to help a red-haired person living in another country who imagines they might be called names when moving to a new neighbourhood, especially if their own local police are known for keeping order.
In unpicking what each of these elements actually mean, though, they get a bit more problematic. In seeking to establish some guidance or rules, legal systems have had to categorise when a fear is ‘well-founded’ or what treatment qualifies as ‘persecution’. The resultant debates and answers get fairly technical and bogged down in semantic hair-splitting, so I won’t go into them here.
Suffice to say that there have been real issues surrounding the interpretation of these terms, and stretched or restrictive readings of ambiguous phrasing has allowed governments to exclude swathes of people from refugee status. Some notable examples: until the EU adopted legislation on the matter neither Germany nor France recognised treatment inflicted on a person by a non-state actor as being persecution, meaning someone who fled in fear of their lives from FARC in Colombia or the Tamil Tigers in Sri Lanka wouldn’t be considered a refugee; and even more shockingly, rape and other forms of sexual assault weren’t considered as persecution by British courts until the 1990s. Governments, in being given the latitude to determine their own meanings of these terms, have unsurprisingly chosen to take the narrow view.
The requirement that a person be outside their country to qualify as a refugee rather than what the UNHCR calls an ‘internally displaced person’ is similarly arbitrary. Per the UNHCR, in 2014 there were 38.2 million internally displaced persons worldwide, as opposed to 19.5 million refugees. When it’s considered that refugees, the ones able to actually leave the country, are generally speaking the wealthier and more affluent members of society, the Convention further entrenches stratifications between the global rich and poor. Being able to pay a people smuggler or bribe a border guard aren’t options available to everyone fleeing a conflict. The line dividing refugees from other people fleeing a conflict can be as simple as whether or not they can afford it.
To some extent, this hasn’t been an issue. The reason it was originally put in the Convention was because it was thought governments shouldn’t have to deal with people who aren’t actually within their borders. Partly, this is because some internally displaced people flee a localised conflict but are able to find refuge in a safe part of their own country. Such a situation has been deemed not to be of concern to the international community; instead, it’s an issue for the country to address internally. The degree of deference this shows to national governments is probably questionable, but makes sense in the abstract.
Also, political rhetoric has somewhat sidestepped this legal technicality. When David Cameron talks about wanting to help Syrian refugees who are in Syria, he is, legally speaking, incorrect. Nonetheless, this language recognises that in some scenarios, such as there being no real safe haven or legitimate government in a country, internally displaced persons have just as much moral claim to protection as refugees.
Which leaves the final, rotten strut in the legal construction of the refugee, the main and obvious failing, that persecution must be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”. These are known as the five Convention reasons, and like everything else in the article, have been endlessly construed and defined and interpreted. Judges and lawyers in different countries and different legal systems have spent their working lives arguing over what can be a religion or a particular social group. The reasons showcase the eternal problem of law, of prescribing in unchanging words what the conduct of people should be in a dynamic, shifting world.
On top of that, the Convention reasons perfectly encapsulate why it’s essential to understand the history behind the Convention. This is a 64 year old compromise. That means that the reasons reflect the sensibilities of the era in which it was written, imparting all the biases and social norms of the 1950s onto the refugee determination process of today. This was an age in which a refugee was a member of a religious minority or a political dissident.
While that’s certainly still true, there is no specific mention of gender, ethnicity, sexuality, or any of the other myriad reasons people have for alienating others. Someone being persecuted because they were a woman wasn’t even considered as being able to give rise to a refugee claim in the 1950s. If it was, there would have been millions of refugees fleeing the violence and rape they experienced in the Western world.
Instead, every time a new social barrier has been drawn, it has had to be incorporated into the increasingly stretched and meaningless category of a “particular social group”. For many people and many forms of persecution, this has been a long and difficult struggle. Women were only properly recognised as being able to suffer gender based persecution by the UK in the 1990s.
But this continued contestation and expansion of the term creates its own set of problems. What is a particular social group? Is it women in a country in general, or only married women, or only women within a particular region, or only women who have been unfaithful to their husbands? Is it all homosexual people within a country, or only openly homosexual people, or only homosexual supporters of equal rights, or only those living in a particularly conservative region, or whatever other infinitesimal, granular distinction the judge or interior ministry wants to draw?
In defining what is and isn’t a social group, it can’t be forgotten that the ultimate outcome makes or destroys lives. It can literally be life and death. Something as flatly accidental as a judge in an appeal feeling particularly lenient or draconian, or even drawing the wrong judge from the rotation for an appeal, can be the difference in whether someone is considered to be part of a particular social group or not. If they are, they’re a refugee. They are welcome, they are recognised, they are able to live and work and fashion some new state of being for themselves, having escaped from whatever horrors brought them to the shores of a foreign country.
If someone fails to meet the standards of three words of a 64 year old document, they’re an economic migrant. Even worse, they’re a ‘bogus’ asylum seeker, a scrounger, a leecher, here to take our jobs and our houses and our benefits, somehow simultaneously here to steal employment and live the good life at the taxpayer’s expense. We simply can’t afford to take them.
And so the idea of defining someone as a refugee based on their reason for fleeing their country is not nearly as founded in fact and logic as the formal definition might lead someone to believe. Instead, the capricious whims of a rich, elderly elite, or the political necessities of the ruling class, serve to decide people’s fate.
A Selective Refuge
Therein lies the ultimate problem with the Refugee Convention. In dividing people by their reasons for leaving their country, it creates an inherent distinction between refugees and others, between those who deserve our help and those who don’t, between the deserving and undeserving poor.
The whole issue is framed by allowing interior ministries the latitude to determine at an initial stage who is a refugee and who isn’t. The debate becomes about whether a person fits within the Convention reasons, in light of precedent and practice, and the system underlying it goes unchallenged. In this sense, the Convention is just as much of a political tool as it ever was. Except now the Convention isn’t utilised in a positive manner, to paint the West as good. Rather, it’s used to whitewash the complicity of the global rich in the ongoing exploitation of the global poor.
There is no Convention reason recognising as a refugee someone who flees indiscriminate violence sweeping their country after it descends into sectarian civil war following an illegal foreign invasion. There is no recognition as a refugee someone whose home, livelihood, even entire nation is destroyed by rising sea levels.
A refugee can’t be someone seeking to move from a developing country to a developed one in search of a better life. They might be starving, or impoverished, or dying from a preventable disease. This might be because of the forced imposition of neoliberal free-market ideology on their government as a condition of entry to global trade through the organisations administered by the rich and powerful. The WTO, the IMF, the World Bank, as effectively controlled by the rich, might well require punishing conditions of a country before they are allowed to participate in the globalised economy. And those conditions might well result in a world where the twisted absurdity of there being enough food to feed everyone on the planet, but 3.1 million children die every year as a result of poor nutrition, and 795 million people are undernourished, is prudent economics.
Those people can’t be refugees, of course. The Refugee Convention says they’re not, because they don’t fit into the neat box of a Convention reason.
So governments can maintain the fallacy that these people have no claim on the rich. They can continue to ignore the impact of their policies on people living in the developing world. They can persist in pretending that a clause drafted when air travel was an exception and an occasion should guide modern migration policy on a globalised planet. They can justify the stance that freedom of goods, trade, capital, information are all necessary for globalisation but free movement of people is an abnormal circumvention of territorial nation states.
The powerful can pick and choose what norms to apply. The refugee definition is outdated, outmoded and has outlived its usefulness. It needs to be radically reformulated to recognise the nature of the world.
 There are slightly wider provisions in EU law covering people fleeing from conflict zones and areas of indiscriminate violence, but they technically aren’t refugees. That, and if you read on, you’ll see it’s not really germane to the wider point.
 That is, someone not a part of or affiliated to a government.