The number of people displaced due to war and persecution is currently at its highest recorded levels. Despite this, wealthy states in the global North continue to pass policies restricting access to asylum, while at the same time claim to open their doors to refugees through resettlement schemes. This article addresses a common question held by the public, advocates, academics and policy-makers regarding the distinction between who is a refugee and who is an asylum-seeker, and what policies protect or exclude these populations. Drawing from historical and contemporary definitions in international law, national policies and political discourse, this article will argue these terms have been obscured by states to legitimize exclusionary policies to benefit ideology and sovereignty over the protection of human rights. This article will hopefully lend a new perspective towards the urgency to reframe refugee narratives.
Last year marked the 70th anniversary of the 1951 Convention relating to the Status of Refugees. With it came questions regarding its continued relevance in the refugee regime. How well does the treaty address the needs of the populations currently displaced? Why do refugees and asylum-seekers continue to be excluded by signatory nations to the Refugee Convention, and why haven't new nations signed onto the treaty? These questions have deep historical roots which impact their contemporary applications. The common link between them, however, is the question of who exactly is a refugee? How do refugees and asylum-seekers differ from one another, in international law, discourse and in national policies? How do these definitions change outside the scope of the Convention's definitions?
This article will analyze these definitions and frames within contemporary and historical norms in the global North and South, and consider how they have evolved in both signatory and non-signatory states to the Refugee Convention. It will examine the role political discourse and policy frames play in justifying restrictive policies, and contextualize which definitions are considered 'deserving' or 'favorable' of admission into a country, and which are considered 'undeserving,' a 'threat' and 'illegal.' Finally, this article will identify where further research and policy innovations are needed beyond the constraints of the Convention.
Before the Convention: Defining Asylum and Refuge
The concept of asylum stems from an ancient tradition associated with the institution of protection. The word asylum comes from the Greek word 'asylon,' containing the root word 'sylon' meaning 'right of seizure', and the 'a' which negates that right.1 The word and concept can be traced back thousands of years, and is found in nearly all leading religious texts; synonymous with how morality was defined and related to the role of churches and other sanctuary spaces.2 Historian Elena Isayev noted, "Seminal to the narratives of the most well-known surviving works of ancient literature, are the encounters between the guest and the host; between those who seek asylum and those who are asked to provide it."3 As nation-states developed and borders were drawn, asylum evolved into a legal institution, giving rights to those seeking safety from primarily political persecution in their home country. States maintained the sovereign right to choose which asylum seekers they would accept, which was often dependent upon religious structures. But many looked at the duty to protect others as a foundational part of their normative legal structures, adding it into their constitutions.4 This duty to protect included the duty to not forcibly return an asylum-seeker to the country they were fleeing from, or 'non-refoulement,' now one of the cornerstones of international human rights laws.5
The word 'refugee' originates from the word 'res' in England, used to describe the millions of French Huguenots who fled Protestant pogroms and sought refuge in England in the 1680s.6 The terms asylum seekers and refugees were interchangeably used over centuries to describe similar concepts; for large numbers of people fleeing for safety, for those targeted due to ethnicity or religion, and for individuals fleeing political persecution.
Who has the Right to Have Rights? The Need for Legal Protection
During and after World War II, millions of Jews and other minorities were stripped of their nationality and became stateless, or 'rightless' according to Hannah Arendt, prompting urgent discussions around legality. Her question around who has the right to have rights challenged the notion of an abstract reality of 'inalienable' human rights which can subsist outside the bounds of a nation-state. These rights, Arendt
countered, "were supposed to be independent of all governments; but as it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them."7 The need to ensure legal rights for those displaced within a polity prompted the 1948 United Nations Declaration for Human Rights (UNDHR), which called on nations to commit to ensuring the rights of humans are protected, even if those people are not their "own." Article 13, for example, allows people the "right to leave one's own country," Article 14 grants the "right to seek and enjoy asylum from persecution," and Article 15, states people have a "right to nationality."8 Holding nations accountable to ensure those rights were given to the displaced was one of the key motivations behind the 1951 Refugee Convention. However, the question of defining who qualified for refugee status again became contentious.
The 1951 Refugee Convention: Defining a Refugee
While the concepts of refuge and asylum were used somewhat analogously throughout history, the Refugee Convention codified them into legal terms. It distinguished between asylum and refugee status; "asylum" became the institution for protection, while "refugee" became the category of individuals who benefit from that protection.9 The Refugee Convention required states to provide rights to non-citizens who qualified under the statutory definition, specifically someone who is outside their country of origin who could prove they were "unable or unwilling to return" due of a "well- founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion."10 It was the first and arguably still the most important cross-border treaty to the present day, requiring states to make exceptions to their national sovereignty, and allow people to work, go to school, find housing without discrimination, if they qualified under the definition. When it came time to sign onto the treaty, however, delegates expressed reluctance to sign onto a "blank cheque" for the "unknown numbers of refugees" who might seek asylum in their territories in the future. Thus, geographic and temporal restrictions were added to the Convention, defining a refugee as someone from Europe, who experienced events prior to 1951.11 While the geographic and temporal restrictions were lifted in the Protocol to the treaty in 1967, the remainder of the language of the Convention remains the same to the present day.
The Myth of Difference, the Non-Entrée Regime
Forty-four nations refused to accede to the Convention or its Protocol, including India, Bangladesh, Jordan, Lebanon, Eritrea and Pakistan; currently some of the world's largest refugee-hosting nations. Most of those nations were not independent countries at the time of the signing, however, and as the Convention was designed in respond to the crises in Europe, the Eurocentric intentions were clear. Populations from the global South were not even considered in the definition of a "refugee," including and most specifically states who had recently been decolonized.12 Populations in these nations were seen as distinctly "different" than the more traditional "white, male and Communist" political asylum seekers in Europe at the early stages of the Cold War.13 Chimni labeled this bias the "myth of difference," and stated the distinction was used to justify exclusionary policies against these populations. Western nations would not recognize postcolonial societies as having been persecuted, and instead turned to the presupposed "internalized" root causes for displacement; stating they were displaced due to "ethnic" conflicts, such in India during partition; or loss of home, such as the Palestinians. Chimni and other legal scholars argued the myth of difference created a normative definition of an asylum-seeker for refugee law over the next several decades; used to legitimize exclusionary policies, detentions and forced repatriations of asylum-seekers from the global South from Western signatory nations.14 Dubbed the "non-entrée regime," these wealthy nations in the global North leaned on racial and xenophobic ideologies despite encountering only a small fraction of the world's asylum seekers compared with developing nations in the global South.15
The Duty to Welcome, the Reality of Containment
After the temporal and geographic restrictions were lifted from the Refugee Convention in 1967, the UNHCR began to respond to displacements in the global South, with the first major coordinated response effort in India in 1974.16 An estimated 10 million people fled targeted violence during the Bangladesh independence.17 Despite India not acceding to the Refugee Convention, they, like many non-signatory countries in South Asia and the Middle East, have hosted significant influxes of displaced people entering their territories for safety from neighboring states. Scholars have attributed this to the culture of hospitality, kinship, or in the case of Middle Eastern nations such as Jordan and Lebanon, as karam, or the duty to be generous.18 These are concepts more closely related to the historical definitions of asylum. In addition, the significance of non-refoulement as a central aspect of international law cannot be understated, as it is written into multiple transnational charters and treaties outside of the refugee convention.19 Most nations globally comply with the non-refoulement principal, despite the fact many of the world's largest refugee hosting nations are not signatories of the 1951 Refugee Convention or Protocol, they do provide a relative amount of protection and have less militarized borders than states in the global North.20
The UNHCR has two primary roles: 1) protection; and 2) finding long-term or "durable" solutions, categorically ordered as voluntary repatriation, local integration and resettlement into a third country.21 Protection includes providing safety and rights in the form of shelter, aid, food, medical support, but the Convention specifies that these rights pertain to individuals who obtain the status of a refugee, signaling that people should not be considered refugees permanently, but rather temporarily until a durable solution is found.
Unfortunately, finding durable solutions has become the UNHCR's biggest challenge. By 2008, the vast majority— in fact 75% of the world's refugees—lived in not just temporary emergency situations, but in "protracted refugee situations," defined as living for 5 or more years after displacement without a durable solution.22 Similarly to Arendt's quandary on the rightless, refugees who remain in encampments are caught in a legal limbo, often without any rights to live or work outside the camp, no safe way to repatriate, and no hope for resettlement. The average stay in a protracted situation is estimated to be 17-20 years, with less than 1% being accepted into a third country for resettlement.23
With the growth of the encampments, UNHCR began acting as a "surrogate state," conducting refugee status determinations on those seeking asylum in lieu of a national legal system.24 Encampment or "containment" has become the norm, and for signatory nations in the global North, resettlement has become the preferred choice over "spontaneous arrivals" seeking asylum at the borders. The state can maintain some sovereign control over the selection process of resettlement, and choose how many arrivals are desired each year, from where, and profiles of specific refugees.25
The definition of who qualifies as a refugee might indeed be written into international law vis-à-vis the Refugee Convention, but if someone enters a signatory requesting asylum outside of the UNHCR's jurisdiction, the determination decision is left to the discretion of each individual signatory state's judicial system. This is largely the same process, in fact, for many states who have not acceded to the Convention but who have asylum as part of their Constitutional right or cultural tradition. The difference lies in the Convention's definition of "persecution", a decision both political and ambiguous, because the burden of proof isn't about determining whether a person has already been persecuted, but rather whether they would be persecuted if returned to their home country. This remains, as Betts and Collier describe, "eccentric".
- Refugees in identical circumstances will be granted asylum in the courts of some nations but refused it in others; even within the same country, they will be granted asylum in some years but not others. Eccentricity is compounded by systemic omissions. For fifteen years, Somalis fleeing the state collapse did not qualify for asylum in some European countries because they had not been "persecuted." What began as coherent common rules for responding to persecution have evolved into chaotic and indefensible responses to the problem of mass flight from disorder.26
In the US, the arbitrariness of asylum determination has been termed "refugee roulette." Researchers found asylum outcomes were significantly related to the profiles of the immigration judges deciding the cases, leading them to claim, "In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge."27 Notably, until 2017, the US accepted the highest number resettled refugees through a third country resettlement scheme. The 1980 Refugee Act mirrors many aspects of the Refugee Convention, with one clear caveat: a refugee is defined as someone who has been given this status "overseas." In other words, one cannot be a "refugee" if they approach the US border or apply for asylum within the interior of the country. One must already have refugee status, as determined by another nation or by the UNHCR. Asylum-seekers are a distinct category in the US Refugee Act and are provided no support unless adjudicated and determined to meet the statutory requirements, a process that can take years. The Trump Administration implemented the Migration Policy Protocols (or "Remain in Mexico") which turned away all those seeking asylum to stay in Mexico, without support and for an indefinite period of time.
Other nations including Australia and the UK follow similar procedures, with Australia being a notable example as they indefinitely detain all asylum-seekers who arrive to their border by boat. These nations distanced themselves from the Refugee Convention's definition and distinguish in national policies between someone who is a "refugee" (someone provided refugee status in another country they first sought asylum), and who is an "asylum-seeker" (an "alien" without documents—who seeks refuge at the borders). The former are people they feel a duty to welcome, the latter people to question, detain and be suspicious of.
Discourse and Policy Frames
Most of the world's 80 million displaced people do not seek asylum in countries like the US, UK or Europe, yet the policies and populist discourse would lead most to think otherwise. Studying discourse about refugees and asylum seekers has become an important aspect of understanding how asylum versus refugee has become so distinct. Numerous studies in the past few years have been conducted on media and political frames since the peak of 2015 migration "crises," the Brexit vote and the election of Donald Trump, the latter two which largely ran on an anti-immigration platforms.28
Frames are underlying structures of belief or perception.29 During the policy process, frames can be created based on the "policy stories that actors tell about what they see as a problem, why, who is involved, and what could and should be done about it."30 How an issue is framed during the policy process can be more critical than presenting facts alone.31 This is situated in a core concept of political science in that ideology has power over cognition.32 Referring consistently to the "migration crises" or the "refugee crises," for instance, immediately generates a set of preconceived beliefs, images and words, similarly to how constantly using the terms "illegal," "irregular" and "alien" to describe immigrant groups creates an association with all migrant groups. Even the use of the word "crises" itself has been found to be intentional, as it indicates an "emergency" which has been strategically employed by governments to permit and justify the naturalization of more securitized policies.33 "By drawing irresponsible comparisons between refugees and terrorists, pundits and politicians commit one of the worst possible sins: presenting the perpetrator and the victim as one and the same."34
After 70 years, the continued relevance of the Refugee Convention to the current needs of the globally displaced remains highly questionable.35 Nations have categorically muddled the concepts of refugee and asylum-seeker in the interests of sovereignty, forgoing their commitment to human rights. Many of these nations show deference to resettlement programs over "spontaneous" asylum-seekers who arrive at their borders. All refugees have sought asylum somewhere first, and the dependency this preference places on UNHCR to conduct refugee status determinations as a "surrogate state" for wealthy nations in the global North places the burden on both the nations who are hosting the majority of the global refugee population and on the UNHCR. Resettlement can certainly be a favorable option for many refugees, yet the question remains of whether a normative part of international refugee law includes the allowance of powerful signatory nations to "cherry-pick" which parts of the law or global compacts they wish to comply with.36
Further research agendas should include comparison studies of outcomes in refugee status determinations between those completed by UNHCR and signatory states. While continuing to rely on the UNHCR to complete this task is burdensome, perhaps it is a more consistent method of monitoring bias in the process of determining who is a refugee—a definition flawed from the onset—and ensuring asylum-seekers' cases are heard and given due process. More importantly perhaps, is the need for research agendas to include innovative legal and policy alternatives to refugee status as defined by the Convention on how to allow rights to the displaced. Analyzing how signatory nations steer, process and pass policies restricting and labeling who they consider a refugee is critical towards legitimizing states' commitment to what many consider, the world's most vulnerable people.