Refugee Enigma: Exploring Solution under Municipal Jurisdictions

immigrants refugees

            A large number of countries undertakes the general obligation to protect political refugees. However, the responsibility to safeguard humanitarian refugees is still moral and humanitarian for a large number of countries.  In some cases, the principle of asylum for refugees is expressly acknowledged in the national constitution. In others, ratification of the 1951 UN Convention relating to the Status of Refugees (UNCSR) and the 1967 Additional Protocol on Refugees (APR) may have a directeffect in local law, while in still other cases; ratifying States may follow up their acceptance of international obligation by the enactment of specific refugee legislation or by the adoption of appropriate administrative procedures. For example, the definition of refugee in the UNCSR and the APR has been enshrined in the municipal laws of Denmark, France, Germany, Norway, and Sweden.  The US and the UK have partially grounded their Immigration Laws on these instruments though the institution of asylum in the West is in dangerouspredicaments.

The number of asylum seekers has over-burdened most refuge determination systems in developed countries, undermining their effectiveness, putting in doubt their procedural fairness and objectivity and prompting many governments to consider the revision of their procedures. But, unfortunately, one is compelled to recognize that whatever is the international law on this aspect of refugee problems, states will, in reality, shape and formulate their policies by their ideological affiliation and commitment. They may even put to record the existence of the international legal rules just mentioned, while at the same time finding expenses and pretexts for procrastination such as the need to support freedom movement, combating terrorism, countering communism and fighting colonialism in the garb of self-determination.

Refugees in North Americas

So far the US is concerned, it is mentioned in the Department of “Justice Immigration and Nationalisation Service Regulations on Refugees and Asylum Procedures,” that regardless of any Convention definition, “before the beginning of each fiscal year, the US President determines the number and allocation of refugees who are of particular  humanitarian concern to the US and who are to be admitted during the succeeding twelve months.  Any alien who believes he/she is “refugee” defined in the Refugee Act, 1980.  It is included in a refugee group of special humanitarian concern as designated by the President may apply for admission to the US by the Regulations. For the Act, the term “refugee” covers“persons outside their own country, or if stateless outside the  because of the fear of persecution on account of religion, nationality, or political belief and the like – that is to say for reasons mentioned in the UNCSR and the APR to it.”

Further, the Act provides that the President may, for the same reasons, classify as a refugee any person within his national territory, or, if stateless, his place of habitual residence. With the passage of the Refugee Act, 1980, the legal basis of refugee admissions to the US shifted from political realism to humanitarian narrative.The Act removed the geographical (Europe and the Middle East) and ideological (anti-communist) basis for granting the refugee status, however, actual practicechanged very littleon the ground. In 1993, the vast majority ofthe US resettlement place for refugees from abroad still went to people from the former USSR bloc and Indochina, relatively few of whom would meet the global standards for a claim on international protection.

The drafters of the 1980 Refugee Act took up the topic of asylum as an afterthought.  The focus of the bill was to regularise refugee resettlement in the United States from overseas camps.  The instigating issue was the Indochinese refugees admitted through a controversial use of parole, an immigration law provision intended for temporary emergency admissions, but frequently used since the Hungarian rebellion in 1956 to accept refugees. Hundreds of thousands of Indochinese had been admitted or paroled in 1975 and 1976 and ex-Vice-President Walter Mondale, as head of the US delegation to a Geneva refugee conference in 1979, promised that the US would admit up to 144,000 a year outside of congressional authorization to help respond to the Vietnamese boat people issue. Since the Refugee Act of 1980 amended and supplemented the Immigration and Nationality Act of 1952 to provide the first permanent and systematic procedure for the admission and resettlement of refugees of particular humanitarian concern to the United States. The Act established a definition of the term “refugee” that conformed to the APR and made clear the distinction between refugee and asylee status.  Thus, the passage of the Refugee Act of 1980 has changed the composition of refugee admissions to the US.

Canada’s Immigration Act, 1976 has adopted the definition of the UNCSR and has spelled out detailed rules for the determination of refugee status. Here it may be mentioned that Canada is also prepared to grant refugee status to persons who have not left home, but who fear they may be persecuted or because may be described as “self-induced” refugees by changing their own political opinions. Moreover, Canada has been addressing a shared challenge that requires cooperation with other countries to deal with smuggling rings, multiple applications too many nations by asylum seekers, and followingclaims by asylum seekers after being denied in one country.

Refugees in Australia

In Australia, no distinction exists in law between convention and other refugees as a result of which persons displaced by severe disturbances of public order may benefit from the asylum. People migrate to seek a better job or a better life, or they migrate because they are in danger and migration provides a safety valve, or they migrate to join family members.  International law guarantees people the right to leave their country as well as to return to it while no state has a legal obligation to receive refugees or migrants, most developed countries have recognized a moral obligation to do so.  The most experienced refugee – receiving countries – the United States, Canada,and Australia – rightly see their policies as in a liberal humanitarian tradition. But, Australia, as a nation has never considered itself consumer of immigration, is now compelled to define its approach to intending immigrants and asylum seekers.

Refugees in the UK

Although the UNCSR and APR are not formally incorporated in United Kingdom law, the rules adopted for the implementation of the Immigration Act, 1971 which make express reference to the UNCSR definition in the context of applications for entry, for extensions of stay, and against deportation.

The Asylum and Immigration Appeals Act, 1993 was the first comprehensive national legislation whereunder entire gamut of asylum was addressed in the UK. The UK has detailed extensive provisions in place to protectindividuals seeking asylum while protecting the public from persons who might exploit the asylum system.  The application process for asylum seekers begins at the international border.  A fast-track process has been evolved to help reduce the extensive caseload of asylum cases, which allowsspecificapplications to be rejected upon receipt if the person is from a country deemed safe by the UK government.  For all other applicants, a decision is made on the well-established criteria of whether the individual has the well-founded fear of being persecuted or other harm as per the UNCSR.  However, a new program has been introduced in response to the Syrian refugee crisis, which accepts selected refugees from the Syrian region.Once former British Prime Minister Mr. Tony Blair had advocated a liberal refugee policy while addressing the Labour Party Conference in Bournemouth as reported by the BBC News Channel (Live Telecast) on September 30, 2003 at 7.54 pm as per IST.  He said, “Reform of asylum is the best way of helping the genuine refugees.”  He further stressed the need for more liberal immigration laws in Britain for helping the indeed persecuted of the world and victims of the racism.  Britain should be a safer place for the asylees in the world as a whole.

Afro-Asia on Refugees

In Asia, there has so far been no such regional initiative, nor virtually any appropriate domestic legislation, except, of course, that imposing restrictions on unwanted new arrivals.  Though the Asian region has a large share of the global refugee problem, there is a low rate of accession among Asian countries to the international refugee instruments – the UNCSR and the 1967 APR. Also, although African States have utilized regional arrangements such as the OAU to provide coordinated and integrated responses and a legal framework for the refugee problems experienced there, the Asian region has not entered into similar regional arrangements still today.

South Asia

In South Asia, refugee and migratory movements are rampant due to various reasons but, unfortunately, no country has acceded to the UNCSR on neither Refugee nor its 1967 APR.  Nor is there a regional legal mechanism or covenant on refugees in South Asia.  Today 146 countries are parties to these international instruments on refugees and the same are applicable in this part of the world.  Nevertheless, Asian governments are not sensitive enough to human rights issues. South Asia is a region where harried and terrified refugee movements have been witnessed owing to ethnic tensions, socio-economic problems, political cleavages and religious persecution since times immemorial.  Indeed, some of the biggest, largest and diabolical movements of refugees in human history have taken place in this region of the world.  Since 1947 around 40 million people have crossed international borders in South Asia region as displaced persons or refugees.  India and Pakistan experienced a heart-wrenching spectacle of partition and resultant migration, scars of which are still fresh and haunting the people of, even of, ephemeral memory.

In Pakistan, an estimated 10 million Muslims arrived from India in the wake of partition.  These people were governed under the “Registration of Claims (Displaced Persons) Act, 1956” and “Displaced Persons (Compensation and Rehabilitation) Act 1958” wherein procedures for allotment and transfer of evacuee property were laid down in favour of refugees. But, unfortunately, Pakistan does not have any legislation about refugees, nor it has signed an international treaty on the subject.Consequently, refugees in Pakistan are not being treated according to the international humanitarian and legal mandate. In Bangladesh, there are recurrent flights of the 50,000 Chin, and800,000 Rohingya refugees from Myanmar and 238,000 unwanted Bihari Muslims are stateless and await imposed repatriation.Bangladesh is also confronted with the problem of internal displacement besides refugee influx from Myanmar, Nepal, and Bhutan.

In the absence of national and international legal protection regime in South Asia, governments of the region adopted the theories of “push back” and imposed repatriation” while dealing with refugees and their problems. Thus, doing the above issues and facts, SAARC countries must evolve or sub-regional approach towards refugees while keeping in mind common problems and issuesabout citizenship laws, asylum policies, determination criterion of refugee status and colonial and post-colonial borders making between India, Pakistan, Nepal, and Bangladesh.  As we all know that states policies have always been instrumental in producing refugees and refugee-like situations such as internal displacement, ethnic strife, civil disturbance, communal riots, breakdown of law and order, denial of human rights and deprivation of food, land, water & health care must also be kept in mind prior to the adoption of a Regional Protection Mechanism.

Refugee Status in India

It is distressing to note and historical fact too that India as a country born with refugee problem even then India has not signed the UNCSR nor its 1967 APR nor does she have domestic laws on refugees. Refugees are those people who are persecuted and hounded in their country of origin and are, therefore, compelled to flee.  The reasons are always social, political, religious, ethnic war, armed conflict, and insurgency, which may endanger the life.  Moreover, today India must also be a signatory to the UNCSR and its 1967 APR to endorse its international concerns. Under the present circumstances, protecting and defending rights of refugees have become an uphill task as India is being preferred as a destination of hope and peace in South Asia by the refugees from Afghanistan, Bangladesh, Burma (Myanmar), Bhutan, Iran, Iraq, Nepal, Sri Lanka, Sudan,and Tibet.  It is, now, obligatory upon the government of India to abandon its marmoreal silence over having refugee’s law. India can no longer depend and continue to deal with problems and issues of refugees by resorting to the old19th-century principles enshrined in the outdatedForeigners Act of 1946 and Extradition Act of 1962.

Recently, UNHCR had reported that India has more than 2.5 Lac refugees. Lack of or legal framework poses significant petulance in the protection of their primary and fundamental freedoms and rights.  In the absence of adequate laws, refugees suffer and do not get charity, mercy and humane treatment of which they are entitledto.Even though India is one of the most important founding members of the United Nations Organisation and privy to the Universal Declaration of Human Rights but it has not ratified the 1951 UNCSR.Although, India honoured its various international obligations and commitments by signing various International Human Rights Instruments such as International Convention on Elimination of All Forms of Discrimination Against Women, UN Convention on Political Rights of Women, UN Convention on the Suppression and Punishment of the Crime of Apartheid and UN Convention on the Prevention and the Punishment of the Crime of Genocide etc. Therefore, it is encouraging to see that the Supreme Court of India is preserving and protecting human rights and civil liberties of refugees by way of judicial institutionalism.

Way Forward

In the face of dramatically and cataclysmically changed social and economic conditions, States felt obliged to abandon the centuries-old practice of permitting the free immigration of persons fleeing dangerous circumstances in their home countries.  Refugee status was conceived as a means of providing international freedom of movement to persons who would otherwise have been unable to migrate because of the principles of international accountability.  This view of refugeehoodwas replaced by a socially based philosophy of the refugee, which accorded status to those groups, which were in fact, if not in law, without state protection.  The third phase in the definitional evolution consisted of a shift away from the approach of definition by the group.  The refugee was instead viewed as an individual whose beliefs or personal characteristics brought him into a situation of fundamental conflict with the government of his home state.  A person was declared to be a refugee to permit him to migrate in search of freedom of expression and action.

For the last more than 65 years, three quite distinct approaches to refugee definition were evident. While each was designated to facilitate involuntary migration, the preciseapproachwas determined by the perceived nature of the international community.  The presence of masses of stateless and undocumented aliens who wanted to migrate in search of decent living conditions in the years following the end of the World War-I dictated a refugee definition founded upon considerations of formal legal status.  The exodus of persons fleeing NaziHolocaust and persecution in the 1930’s called for the extension of refugee protection to all members of the groups targeted, tortured, victimized and abused.  Ultimately the inception of the institutionalized ideologies to which many individuals were unable and unwilling to emulate in the wake of World War-II suggested an approach to refugee definition, which accorded relief to these persons for whom continued residence in their own countries, was unthinkable.

Refugee status, then, is an extremely malleable legal concept, which can take on different meanings as required by the nature and scope of the dilemma prompting involuntary migration.  If properly defined, refugeehood enables to the maintenance of a delicate balance between domestic policies of controlled immigration and the moral obligation of the international community to respond to the plight of those forced to this role; the definitional framework mustevolve in response to changing social and political conditions. The definition of the term “refugee’ given by the UNHCR Statute or 1951 UNCSR has led some to consider that these definitions are essentially applicable to individuals and are of little relevance for today’s refugee problem, which is primarily problems of refugee groups.

In this complex milieu, parliamentarians, refugee experts, refugee stakeholders, and other civil society institutions can perform a crucial role in protecting refugees and finding solutions to their problemswithin the municipal jurisdictions. As opinion-leaders and decision-makers, parliamentarians and others can promote respect for refugee rights among their constituents and facilitate the informed debate on refugee protection dimensions. As overseers of national budget appropriations, parliamentarians can ensure that adequate and cost-effective funding is provided both to their national refugee protection systems and to UNHCR, the only international agency mandated to protect refugees and promote durable solutions to their problems. They can encourage accession to the 1951 Refugee Convention and its 1967 Additional Protocol, and to other incidental international and regional agreements that have not yet been ratified. They can also design and adopt national refugee legislation that conforms to international law and global standards and oversees their implementation

Nafees Ahmad PhD, LL.M, Assistant Professor, Author is an Indian national who holds a Doctorate in International Refugee Law and Human Rights from the Aligarh Muslim University of India where he concentrated on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law.  He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA [email protected], [email protected]

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