Harvey Seeking Asylum in the UK

"The definition of refugee status contained in the 1951 convention, widely adopted and applied by states was drafted in a specific historical context. It is a limited conception of the refugee which is at variance with the reality of modern forced migration" (Harvey Seeking Asylum in the UK) Consider this statement and reflect upon the extent to which you agree or disagree with it. What do you believe to be the implications of and solution(s) (if any) to the displacement between 'law' and 'social reality' perceived by Harvey.

The definition of the refugee status contained in the 1951 convention as defined by Harvey is a 'limited conception of the refugee' because it is drafted in a 'specific historical context,' and does not conform to the reality of modern forced migration. The identification of a 'refugee' has a focal requirement of fear in the definition of migration found in Article 1A of the refugee convention.

It says that a 'refugee' is 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 his country of 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… is unable or, owing to such fear, is unwilling to return to it. 1 The UN definition markedly reflects upon the historical context in which it was formulated.

It is a response to the European totalitarian experience when, indeed, refugee's were primarily the persecuted victims of highly organised predatory states. 2 Such concrete definitions are predicated on an implicit conception that, a bond of trust, loyalty, protection and assistance between the citizen and the state constitutes the normal basis of society; (as perceived by Harvey) 3 in the case of the refugee, this bond has been severed; persecution and alienage are always physical manifestations of this severed bond;4 and these manifestations are necessary and sufficient conditions for determining refugeehood.

This conception provides the theoretical basis of the definition. It stipulates what is essential and universal about refugeehood. It asserts a moral claim because it speculates the existence of a normal, minimal relation of rights and duties between the citizen and the state, the repudiation of which provokes refugees. It also enforces an empirical claim because it asserts that the actual consequences of this severed bond are always persecution and alienation.

An implication to the dislodgement between 'law' and 'social reality' in the definition of the refugee perceived by Harvey can for example, be this persecution and alienation, "which is at variance with the reality of modern forced migration. " The definition of the refugee is limited as it is at variance with the reality of forced migration as forced migration includes violent coercion used with forced displacement, which is accompanied by religious and political persecution, as well as war and predominantly- the element of fear.

In addition to the limitation statement produced by Harvey, is one of similar belief by Tuitt (1996:96-97) who argues that the central importance accorded to the test of objectivity well-founded fear may be seen as part of a legal trend which enables the state to make generalized statements about safety which defeat an asylum claim. 7 The fear element of the definition arguably also has a subjective and an objective aspect. 8 The UNHCR handbook paragraphs 37-50 indicate that both are necessary.

9 The subjective aspect is the refugee's own experience of fear which can be identified in the tribunal in Asuming v SSHD10. Paragraphs 40 and 41 of the UNHCR Handbook discuss the way in which the subjective element may be evaluated, and what it may contribute to the possibility of attaining refugee status. 11 Paragraph 40, for example, suggests that the requirement of subjective fear gives scope for taking account of the effect of circumstances on an individual.

12 Similar circumstances may bear differently on different people, and therefore contours their individual situation, which shows how the definition on the other hand, is not a limited conception of the refugee. As Hathaway says, 'the use of the term "fear" was intended to emphasize the forward-looking nature of the refugee claim, not to ground refugee status in an assessment of the claimant's state of mind. '(1991:75)13 This approach supports the purpose of the convention which is to protect people from actual persecution and was used in the case of Gashi and Nikshiqi [1997].

14 On the other hand, a subjective aspect of a "well- founded fear" claim has been shown unsuccessful in the case of Chan v Minister for Immigration [1989]15 whereby a Chinese national who had fathered two children in the violation of China's "one-child policy" and risked forcible sterilization. Mr. Justice Major stated, "the appellant did not have a subjective fear of forced sterilization. " This illustrates the dislodgement of the 'law', with the complete disregard to the actual 'social reality' perceived by Harvey.

Similarly, the Canadian Federal Court Trial Division has found that "lack of subjective fear constitutes a critical barrier to a refugee claim which, on its own, justifies non-recognition. "16 Another implication to the displacement between 'law' and 'social reality' perceived by Harvey is in the confusion of the meaning. The definition of the 'refugee' can be and is misused within social reality as it has slipped into common usage to cover a wide range of people, which include economic migrants and environmental refugees.

The term can also be confused with illegal immigrants and asylum seekers. Under Article 14 of the Universal Declaration of Human Rights, everyone has the right to seek and enjoy asylum. In addition, Article 13 of the 1951 Convention Relating to the Status of Refugees states that countries should not impose penalties on individuals coming directly from a territory where their life or freedom is threatened on account of their illegal entry. 17 Often governments refuse to issue passports to known political dissidents or imprison them if they apply.

Refugees may not be able to obtain the necessary documents when trying to escape and may have no choice but to resort to illegal means of escape. Therefore although the only means of escape for some may be illegal entry and/or the use of false documentation, if the person has a well-founded fear of persecution they should be viewed as a refugee and not labelled an 'illegal immigrant'. 18 The conception of the refugee can further be limited by the core phrase of the definition, of which every word has been subject to interpretive dispute.

The central question of what it means to be persecuted 'for reasons of race, religion, nationality, membership in a particular social group, or political opinion' remains disputed. 19 On the other hand, there is very little in the events of the Second World War and its immediate aftermath to override the language used in the convention restricting the refugee status to those with a well-founded fear of persecution on one of the five specified grounds during the specific historical context as perceived by Harvey when the definition was drafted. 20 The primary events influencing the Convention's drafters were the Nazi persecutions of 1933-45.

21 The Convention's inclusion of persecution for reasons of race, religion and nationality speaks most directly to that experience. The treatment of Jews for reasons of their religion and perceived 'race' was the paradigm condition the drafters meant to encompass. 22 In addition, while the period before and during the Second World War had certainly seen its share of persecution of individuals, the immediate post-war period prior to the conference witnessed a new wave, consisting mostly of those in flight from increasingly repressive communist regimes in central and eastern Europe.

23 These refugees, and other groups of similarly displaced persons who refused to repatriate on the basis of feared political persecution, also were clearly of concern to the drafters of the Convention. As with other post-war international legislation, its authors were to a great extent legislating about past events. 24 The aims of the refugee definition concern the two great paradigms of the post-war period: the rights of non- discrimination and free-expression. The core concept of the refugee definition is protection against the infliction of harm on the basis of differences in personal status or characteristics.

Persecution only gives rise to refugee status if it is 'for reasons of race, religion, nationality, particular social group or political opinion. This idea is implicit in the very notion of 'persecution' and is made explicit by the linking of 'persecution' with the first four of the five-cognisable grounds. 25 Race, religion, nationality, religion and social group membership, all show matters of status, as opposed to individual action. Refugee law says, in effect, that harm cannot legitimately be premised on an individual's personal characteristics or status.

26 By implication, refugee law only contemplates the imposition of punishment on the basis of an individual's wrongful acts, which is another limited conception of the dislodgement between 'law' and 'social reality' perceived by Harvey. The Handbook says that race 'is to be understood in its widest sense to include all kinds of ethnic groups that are referred to as "races" in common usage' (para 68). 27 It is not impossible for there to be persecution of members of the same race for reasons of race.

The Federal Court of Australia in the case of Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 notes that the LTTE (Tamil Tigers) would approach Tamils for financial support. The implication of this is that due to the law, the pressure could be bought to bear. 28 It may be recalled that the European Commission of Human Rights found the state's action to passing the racially discriminatory legislation capable in itself to amounting to a violation of Article 3 ECHR (East African Asians v UK (1973)). 29

The ICCPR and ECHR refer to freedom to manifest one's religion or beliefs. The case of Ahmed (Iftikhar) v secretary of state for the home department [2002] shows that how belief is manifested, may to an extent be determined by the requirements of the particular belief. 30 This will still not prevent state authorities from curbing religious expression where the permissible reasons in the ICCPR and ECHR apply. For reasons of nationality, is also given a straightforward and inclusive interpretation, not restricted to citizenship, and so overlaps with race.

31 A particular social group has given rise to more litigation and is open to interpretation than any other Convention reason. 32 As a general starting point for determining whether a claimant comes within a social group, which could be protected by the Convention, it is useful though not essential to consider the principle of ejusdem generis. 33 The US board of Immigration Appeals in the case of Acosta [1985] used the ejusdem generis rule to identify the key characteristics of the other Convention reasons.

It was outlined, "The shared characteristics might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared experience such as former military leadership or land ownership. "34 Similar qualities were identified in Attorney General for Canada v Ward [1993]. Shah and Islam is the leading case in the UK on identifying a particular social group. It was clear that in these cases the women faced persecution for reasons of their gender.

However, gender is not a conventional reason. The Court of Appeal held that they were not members of a particular social group. 35 One reason for this was a doctrine propounded that the members of the group must associate with each other, there must be some cohesiveness, interdependence or co-operation, which makes them a social group. 36 The social group that was found to be in this case was 'women in a society that discriminates against women'.