Refugee law developed from international human rights law during and soon after the Second World War (1939-1945). The world, especially Europe and the Americas experiences a large influx of Europeans who left their homes fleeing Hitler’s unprecedented cruelty. Under article 14(1) of the Universal Declaration of Human Rights (UDHR) of 1948, the right to seek and enjoy asylum in other countries is guaranteed. Subsequent international and regional human rights instruments such as the African Charter on Human and Peoples’ Rights (Art 12(3)) also guarantee the “right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions”.
In refugee law, when talking about aliens, one may be an asylum seeker, a refugee or an immigrant. The three categories of people are different though related. In this article, the difference is set out and the similarity is drawn. A colleague, Roland Yongyera has previously written about the right to seek asylum.
Who is an asylum seeker?
Under the 1951 Refugee Convention on the Status of Refugees, an asylum seeker is a person who has applied for asylum on the ground that if he is returned to his country of origin he has a well-founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular association. An asylum seeker remains one for as long as his application or an appeal against refusal of his application is pending. This therefore means that reference to a person as an asylum seeker is a neutral term. It does not make the asylum seeker’s claim justified or not. The final determination of the application for asylum is what makes their claim justified or not.
When one’s application for asylum is denied, his or her position is like that of a person who enters a country on a shorty term visa which is now expired. So, once the application is denied, and the applicant chooses not to appeal the denial, his or her right to be in the country is no more. Further stay in the country after an application for asylum has been denied is unlawful.
However, when the application for asylum has been lodged or an appeal against the denial of the application has been lodged, the applicant is granted temporary admission in the country. Ordinarily, adjudication for asylum is done by an official from a designated government office. Such an officer should have knowledge relating to human rights and refugee law. Mostly, the asylum seeker is interviewed for the purpose of elevating his or her evidence and credibility. For an application for asylum to be granted, the applicant must prove the strength of their case using the standard of a “reasonable degree of likelihood”. This is different and lighter than the standard of proof in criminal cases, “beyond a reasonable doubt” and that of civil cases, of “balance of probabilities”
When a person’s application for asylum is denied, such an individual may still be eligible for other limited forms of protection such as protection under Article 3 of the Convention against Torture, which forbids States parties from extraditing or returning an individual to a country where they risk being tortured or subjected to cruel, inhuman, or degrading treatment or punishment. States also may also withhold removal, grant subsidiary protection, or give Temporary Protected Status to individuals who do not meet the definition of a refugee but whose life or freedom would be in danger if returned to their country of nationality or country of habitual residence.
Who is a refugee?
A refugee is an asylum seeker whose application has been successful. In reality, a refugee usually comes to another country when he or she is fleeing a war or a natural disaster but not necessarily fearing persecution as defined by the 1951 Refugee Convention.
Article 1(A) (2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.
It therefore follows that internally displaced persons (IDPs) – including individuals fleeing natural disasters and generalized violence, stateless individuals not outside their country of habitual residence or not facing persecution, and individuals who have not crossed an international border fleeing generalized violence are not considered refugees under either the 1951 Convention or the 1967 Optional Protocol.
More so, certain persons may not be recognized as refugees. Article 1(F) of the 1951 Convention defines those persons with respect to whom there are serious reasons for considering that:
- He or 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;
- He or she has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
- He or she has been guilty of acts contrary to the purposes and principles of the United Nations.
“Asylum seeker” and “refugee” are often wrongly interchangeably used and may be misleading. The two must always be differentiated. Sometimes, the two terms are even used to mean “migrants”, which is also wrong.
Who is an immigrant?
An immigrant is different from a refugee. Whereas a refugee leaves their country fleeing a natural disaster or a war, an immigrant does not necessarily flee but leaves his or her country to seek lawful or unlawful means to settle in another country. Immigration is usually for economic reasons.
Whereas a refugee is allowed entry into another country on humanitarian grounds, an immigrant is allowed into another country on social or economic grounds. More so, refugees may not be taken back to their country while the cause of their fleeing is still in place. This is under the principle of non-refoulment. An immigrant may however be deported. Immigrants contribute to the economy of a country or to join their family that is already in the country of their destination. They pay taxes, get jobs and are part of the economic system of a country.
More importantly, immigration is connected to citizenship. An immigrant may acquire a country’s citizenship through naturalization. For example, the Makonde tribe of Kenya was recently naturalized and all its members were granted citizenship of Kenya.
In many ways, an immigrant is different from an asylum seeker or a refugee. The difference mostly lies in the socio-economic contributions they make to the country hosting them.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 4, Issue 3 of April 21st 2017
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