Refugee Protection and the Role of Law

Conflicting Identities

Susan Kneebone, Dallal Stevens, Loretta Baldassar, Susan Kneebone, Dallal Stevens, Loretta Baldassar

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135046903
• Edition: 1
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

Sixty years on from the signing of the Refugee Convention, forced migration and refugee movements continue to raise global concerns for hosting states and regions, for countries of origin, for humanitarian organisations on the ground, and, of course, for the refugee. This edited volume is framed around two themes which go to the core of contemporary 'refugeehood': protection and identity. It analyses how the issue of refugee identity is shaped by and responds to the legal regime of refugee protection in contemporary times.

The book investigates the premise that there is a narrowing of protection space in many countries and many highly visible incidents of refoulement. It argues that 'Protection', which is a core focus of the Refugee Convention, appears to be under threat, as there are many gaps and inconsistencies in practice.

Contributors to the volume, who include Erika Feller, Elspeth Guild, Hélène Lambert and Roger Zetter, look at the relevant issues from the perspective of a number of different disciplines including law, politics, sociology, and anthropology. The chapters examine the link between identity and protection as a basis for understanding how the Refugee Convention has been and is being applied in policy and practice. The situation in a number of jurisdictions and regions in Europe, North America, South East Asia, Africa and the Middle East is explored in order to ask the question does jurisprudence under the Refugee Convention need better coordination and how successful is oversight of the Convention?

Part I

Refugee law and protection: fit for purpose 60 years on?

1 Conflicting identities, protection and the role of law

Susan Kneebone, Loretta Baldassar and Dallal Stevens

[L]ife and epistemology do not imitate legal categories. Instead, legal categories most often seek to ‘discipline’ life and knowledge to realize dominant interests in society.¹

The Refugee Convention was thought to be a beacon of hope to emerge from the horrific aftermath of the two World Wars, which left millions of people displaced from their home countries and unable to return. Born of this historical moment, the Convention defined a ‘refugee’ as a person who:

owing to [a] 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.²

The Convention reflected an emerging human rights culture in the post-Second World War period, evident in the references to the 1948 Universal Declaration of Human Rights (UDHR) in the Preamble to the Convention, and the principle of non-discrimination on the basis of ‘race, religion or country of origin’ in Article 3 of the Convention.³ Yet it is precisely the pervasiveness of such discrimination against refugees in contravention of Article 3 that fuelled our concerns in the 60th anniversary year of the Refugee Convention. In contrast to the recognition of the need for protection which guided the making of the Refugee Convention, today industrialised receiving states have restrictive practices and policies which actively discriminate against asylum seekers⁴ looking for refuge. In particular, over the last two decades protection has been weakened through a range of measures adopted by states, including non-entrée measures, interceptions, interdictions, offshore processing, restrictive application of the refugee definition and application of ‘safe third country’ concepts. Refugees have evolved from being a protected class at the end of the Second World War, to being discriminated against as ‘irregular’ international migrants; through notions such as the asylum–migration nexus that focuses on the ‘mixed flows’ of migrants and irregular status, rather than on the specific protection needs of certain categories of migrants.

Our starting point is that the cornerstone of refugee identity is the legal and normative framework of protection enshrined in the Refugee Convention. This definition is also the basis for the international response to refugees as part of the phenomenon of ‘forced migration’.⁵ And although, as explained below, different disciplines view the refugee category and the meaning of protection in different ways, the Refugee Convention remains a constant and central reference point. The Refugee Convention (and its definition) is ‘one of the most widely accepted international norms, and probably one of the few to have penetrated the public consciousness’.⁶ Arguably, it has a unique role in contrast to general human rights law in conferring a status on an individual⁷ and hence in the construction of ‘refugee’ identity. As Feller commented at the Prato Workshop, the existence of such a Convention is a historical feat in itself; the international community would be unlikely today to develop a collectively agreed upon definition – thus its continuing and central importance.⁸ Further, as we show in this volume, even in regions and countries where the Refugee Convention is not formally in place, responses to refugees are shaped by it, either as a deliberate rejection of its normative framework or as an attempt to adapt it to the local situation.⁹ For this reason we place the Refugee Convention at the centre of our analysis to investigate: ‘The Refugee Convention at 60: still fit for purpose?’.

In effect, the Refugee Convention produced a new legal category of person – the refugee¹⁰ – seeking refuge in another country from ‘persecution’, which includes torture or ‘inhuman and degrading treatment’ and ‘severe violation of basic human rights’.¹¹ While this was a ‘compassionate’ response to persecution, the Convention also created a new legal entitlement to a status in international law but left it to states to determine how to implement the rights of the refugee. As the chapters in this volume illustrate, states consistently deny refugees the rights owed to them under international law. The quintessentially legal identity of ‘the refugee’, clashes with the desire of states to control the composition of their communities on the one hand, and the ‘humanitarian’ objectives of the Convention, on the other. But in the ‘securitised’ context of international migration, it is not surprising that the identification of refugees is no simple matter and has become increasingly a fraught and much contested process, characterised by distrust of the refugee.¹²

In this volume, we consider the role of law and policy in making and unmaking the refugee category through an interdisciplinary lens, to explore how refugee identity is shaped by the particular legal, political and social processes that surround asylum-seeking. That is, although the Refugee Convention creates a concept of ‘refugee’, there are a number of refugee identities central to this analysis. As the chapters in this volume illustrate, the legal, political and policy contexts are intertwined, and influence the attribution of identity to refugees.

While much has been written about the refugee definition, a focus on the role of law (and the policy behind it) in creating and shaping the identities of persons defined as legal refugees has been surprisingly limited. In order to benefit from the protection promised by the Refugee Convention, people need to qualify, or meet the requirements of the law, to gain the legal status of refugee. This legal process sets up myriad social and personal dynamics, many of which are unintended and harmful. Most alarmingly, the onus to prove ‘a well-founded fear’ results in a ‘guilty until proven innocent’ scenario, evident in issues around the believability and credibility of applicants for legal refugee status.¹³ In this volume, we examine both the intended and unintended consequences of the political, legal and social constructions of refugee identities. Indeed, one of the more complex issues that is addressed in a number of chapters in the volume is how the legal construction of refugee identity is influenced by state and global policy approaches to refugee protection.

Refugee law and protection: fit for purpose 60 years on?

This chapter is organised to reflect the structure of the volume and to contextualise the key themes of the chapters. We explore the key concepts of refugee ‘protection’ and ‘identity’ by analysing the link between these two concepts. This is done through overlapping lines of enquiry. First, we look at how individual and group identities are ‘ascribed’ and how this process is linked to law and to institutional power. As explained by Zetter in Chapter 2, the interplay between processes and institutional power ‘not only plays a complex role in describing an identity but also, by presenting and (re)presenting that identity, it is instrumental in making an identity’. Second, we examine the power of the law and its institutions to make the point about the role of law as an instrument for making and unmaking the refugee category or identity.

Part I, which includes chapters by Zetter, Galloway and Feller, sets up the volume’s central questions and main themes about the continuing relevance and effectiveness of the Refugee Convention definition and its role in shaping legal and social refugee identities. Complementing the chapters by Zetter and Galloway, Feller explains the significance of the international refugee protection regime, which influences the way that individual states respond to the Refugee Convention and formulate refugee policy. In Part II, chapters by Stevens, Kneebone and O’Sullivan explore the way implementation and interpretation of the Refugee Convention has shaped current understandings of refugee identity. This historical and comparative discussion prepares the way for the second half of the volume which examines how well the Refugee Convention has stood the test of time and whether it continues to be ‘fit for purpose’ today.

Part III examines the macro, formal and state-oriented perspectives and approaches to refugee protection, their role in creating and maintaining refugee identities, and especially the power, including institutional power, that operates under the rule of law to shape refugee identities. It includes contributions by Guild, Betts and Lambert that deal, broadly, with the policy behind legal processes. For example, Guild explains the role of law as an instrument of power, drawing on Foucault’s concept of ‘governmentality’, in contradistinction to the role of law as a formal legal instrument. Betts, applying an international relations perspective, uses the notion of ‘regime stretching’ to explain how six states in Africa stretch the Refugee Convention definition to incorporate people at the margins of the formal legal definition, but fail to adapt it in other contexts. Lambert analyses the role of the European Union as a transnational actor in shaping refugee protection. To further deepen our analysis, Part IV examines micro, social, individual and politically oriented perspectives and approaches to refugee protection and their role in creating and maintaining refugee identities. Björnberg discusses the unintended negative consequences of well-meaning and highly organised integration policies for refugees in Sweden. In contrast, Ambrosini discusses Italy’s ad hoc and mostly hostile formal response to asylum seekers, highlighting some of its unexpected positive outcomes. Jones, in his chapter, brings a different perspective, discussing the role of civil society in South-East Asia as protectors in opposition to the state. Once again, these contributions reveal the role of institutions and legal and policy processes in identity construction.

In Chapter 2 of Part I, Zetter reflects on how the individual asylum seeker negotiates the legal process, and considers the way individuals and groups may ‘self-describe’ or construct their own identities to bring themselves within the definition and grounds of the Refugee Convention. Galloway, conversely, explains how the Canadian government has reconfigured and reconceptualised ‘the refugee’ as an indirect beneficiary of government ‘largesse’ rather than as a ‘rights-bearer’. In Canada, this means that the government doubts the ability of the refugee to ‘self-assess’. Zetter, in a further contrast, focuses on the processes embedded in the concept of refugee under the Refugee Convention, some of which are very familiar to us. For example, we know that refugee applicants need to tell their story so as to conform to the dominant ‘narrative’ of a refugee. The refugee must narrate a story in which, as Zetter describes, their ‘case’ is delinked from their ‘story’, in order to ‘conform to a prescribed identity which is normalised and granted materialist meaning though its institutionalisation’. In this process, refugees ‘negotiate within a framework of legal designation, state practice, and political and everyday language, on the one hand, and their own accounts, on the other’.¹⁴ For example, the refugee applicant, and particularly refugee women,¹⁵ battle against the preconception of a refugee as someone persecuted for reasons related to civil or political status, rather than for social or economic rights. The core of the refugee definition, the very notion of ‘persecution’ has spawned competing interpretations about the extent to which the state’s role is relevant to a finding of a ‘well-founded fear’.¹⁶ The process is critiqued as embodying a ‘post-colonial’ narrative,¹⁷ formulated and dominated by ‘Western’ concepts and interests.¹⁸

The law at the national or state level determines the details of this ‘ascriptive’ process in some very important ways. The hearing process generally depends upon the administrative framework and powers that are conferred on the institution. For example, the extent to which the institution takes account of psychological and cultural factors¹⁹ varies between jurisdictions. Issues of standard of proof and credibility play an important part in refugee status determination. But the neutrality of the legal process is called into question.²⁰ Zetter suggests that the role of law is ‘inevitably partial’, that it is highly ‘instrumental in shaping and constraining that identity and the experiences of those so categorised’. Zetter argues that identity is linked through this role to institutional power – as he expresses the overlap between process and power, ‘identities are situated not narrated’. As Donald Galloway explains in Chapter 3, new legislation in Canada effectively ensures that the refugee claimant ‘no longer controls the agenda in the hearing room’.

The ‘gatekeeper’ role of the law demonstrates the power of the institution which may decide not to hear the applicant at all.²¹ This is an example of the overlap between process and power, which Audrey Macklin describes as keeping the asylum seeker ‘out of earshot’.²² Zetter refers to this as a ‘contestation over access to identity and … exercise of power over its characteristics’:

[T]he discursive shaping of identity is not the negotiated outcome of different narratives: rather it is a contestation over access to identity and the exercise of power over its characteristics.

Zetter describes the ‘ascribed’ identity as a constructed one which largely serves the needs of states, and suggests that refugees do not easily fit into the seemingly clear-cut categories and criteria of the refugee definition. Indeed, Betts in Part III argues that the term ‘survival migrants’ is a better term with which to describe the identity of contemporary refugees who are the product of new types of ...