Hands off the Refugee Convention

In a speech in the US last week, UK interior minister Suella Braverman floated the idea that the definition of refugee under 1951 Refugee Convention needed to be tightened to stop the irregular arrival of refugees in UK, Europe and the US in large numbers.

The Refugee Convention is part of international treaty law, and usually it is for the British foreign minister and his department, not the interior minister, to call for its reform abroad. The treaty experts at the foreign office must be apoplectic at Suella Braverman’s chutzpah.

Her speech was not quite of the rivers of blood variety that Enoch Powell delivered in 1968 about the perils of mass immigration into the UK from the British Commonwealth. But it demonised refugees in much the same way, which was shameful coming as it did from a principal minister of the Crown.

She claimed the convention provided too much protection, and by way of example she said that the protection of women and gay men fleeing discrimination across the globe made the obligations of states under the convention unsustainable. It is not clear why she picked on women and gay men, given that the irregular arrivals in the UK and elsewhere rescued from small boats on the high seas are mainly young men who do not claim to be refugees because they are gay.

She was also wrong that fleeing discrimination is enough to found a refugee claim, although she conceded this is not the fault of convention but of judge-made case law that she said blurred the distinction between persecution and discrimination in refugee law.

The convention is absolutely clear. A refugee is and has been since 1967 someone who is outside his or her country owing to a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion and unwilling to return there owing to such fear.

It is obvious from the refugee definition that it is persecution – not discrimination – that is key to refugee status. Persecution is not defined in the convention though it is obvious that discrimination coupled with threats to life and freedom and other forms of inhuman and degrading treatment can amount to persecution. Fleeing discrimination alone, however, is not persecution and Suella Braverman was disingenuous to conflate the two.

Crucially, her analysis of the problem of irregular refugee arrivals lacked historical context. She ignored the similar treatment meted out to irregular arrivals escaping Nazi persecution last century. She also ignored the fact that it was the enormity of the crimes against humanity before and during World War II, inflicted on those who could not get away that impelled civilised nations to provide international protection under the Refugee Convention and the European Convention on Human Rights (ECHR).

Set in that context the refugee problem today is no more than a practical problem of how states can cooperate in order to deter the irregular arrival of refugees. It is not an existential threat that requires the fundamental values underpinning the Refugee Convention and the ECHR to be disturbed. The values that lie behind international documents like the 1951 Refugee Convention and the ECHR, both of which were blamed by Braverman for mass refugee arrivals, are as necessary today as they have ever been.

Actually, the definition of refugee in the 1951 Refugee Convention was quasi-Eurocentric to begin with until it was made universal in 1967. The original 1951 version froze the obligation to provide international protection to those who fled their countries as a result of events in Europe before 1951; or alternatively those who fled as a result of events worldwide before 1951. In other words state parties were given a choice whether to accept refugees from Europe or worldwide provided the refugees fled their countries as a result of events before 1951.

With the passage of time the definition of refugee needed to be amended to make it relevant to contemporary events, and it was altered in 1967 by an additional protocol that made international protection available to anyone who became a refugee anywhere at any time.

In historical terms 1967 is not that long ago for the refugee definition to be in need of reform. The problem Suella Braverman latched on to is that refugee status is being abused by people traffickers, economic migrants, boat people, illegal entrants and those who shop around in their quest for asylum. No one denies they pose a serious and difficult problem, nevertheless Britain and Europe are not hamstrung by the refugee definition or anything in the Refugee Convention but by their inability or unwillingness to cooperate to meet the challenge.

The Refugee Convention respects the sovereign right of states to control their borders. It was carefully crafted not to impose an obligation on states to grant asylum so as to preserve the sovereign right of states to control immigration and protect national security.

The primary obligation of states under the convention is not to return refugees directly to the borders of the country of feared persecution, or indirectly via unsafe third countries that cannot be trusted not to send them there – the principle of non-refoulement in the jargon.

So far as boat people rescued on the high seas and illegal entrants are concerned, the convention recognises that often refugees escape persecution across borders and frequently have to enter the country of refuge unlawfully, either on false documents or without going through immigration control. Such refugees are not to be penalised, but this only applies to those who come directly from the country of feared persecution. It does not apply to those who arrive from safe third countries and enter unlawfully, although they too are protected by the principle of non-refoulement.

The framework under the convention gives states a wide discretion on how to treat refugees in a way that is consistent with state sovereignty. The truth is that it is up to states to grow up and cooperate in the fight against people trafficking and to share the refugee burden fairly and, crucially, adopt foreign and environmental policies that do not generate refugees.

The Mediterranean states of the EU now recognise that burden sharing is essential, which is a mild step forward for Cyprus that tops the list of refugee arrivals in Europe in proportion to its population.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge