James (synesis) wrote in ontd_political,

Extend the rights of Asylum seekers

The modern concept of the refugee is essentially a 20th-century invention of law. What we would now call a refugee existed before there was a law to name them as such, of course. The Jewish people of Europe were persecuted and displaced for centuries on account of race and religion; expelled from England in 1290, banished from southern Europe by the Inquisition in the 1490s, and generally treated as second class citizens until emancipation laws in the 19th century. But all of this took place without much legal involvement. When Nazi Germany stripped Jews of citizenship rights as a prelude to genocide, it was much more than symbolic. It is indicative of law's reach over life itself. Created almost 60 years ago as a response to the Holocaust, is the 1951 refugee convention still relevant to today's refugee crises?

Its form shows that it is fundamentally a product of European legal and political history, and indeed it initially only applied to refugees from Europe. The key definition of a refugee is found at Article 1A (2):

"...owing to 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."
During the first decades of the cold war, the refugee was a politically significant figure, often presented as a symbol of the brutality of enemy regimes and the humanity of the hosts. The number of people claiming asylum in Europe was relatively very low, and the majority of applicants were happily found to meet the convention's definition.

But by the 1980s, the figure of the refugee had begun to change in the European imagination. Refugees are the exception to the normal rules of visa requirements: sovereign states are by right free to control borders against non-citizens, unless they claim to be refugees. In a world of increasing migration, this led to refugees increasingly being perceived as a threat. A key moment was the war in Sri Lanka. Thousands of Sri Lankan Tamils fled to Europe. Faced with a mass displacement of people from the global south, European states dismissed their applications, attributing their fear to "random" acts of violence rather than persecution. Appealing from Sri Lanka after being returned to face torture, some Tamils succeeded in persuading British courts to widen their understanding of who the convention could apply to.

As forces of capital increasingly demanded freedom to circulate around the globe, trade barriers were lowered and the western ideology of freedom and democracy spread. Concurrently, immigration controls have continually been tightened; and as controls were tightened, the law produced ever-increasing numbers of "illegal" people. On the one hand, the gap between the global rich and global poor widened, and economic migration became increasingly reviled (except perhaps where city bankers are concerned). On the other hand, globalisation brought new challenges and new movements of populations.

Migration is a fact of life today. There are an estimated 50 million people living as extra-legal migrants around the world. Within the EU, citizens are free to live and work where they choose. If you have money, you can buy a visa to almost any country on earth. Many factors influence choices of where people want to live, such as language, culture, love, and employment. But the rules are different for the poor. Many irregular migrants may be de facto refugees, unable to return home. Many will not be. But by focusing on race and economic cost rather than the troubles they flee, states have justified new methods to criminalise and control refugees. The clearest examples are the use of detention, exclusion from the labour market, and restricting appeal rights in "fast-track" application procedures to quickly refuse and remove asylum seekers.

The refugee has thus come to be regarded as "illegal", "bogus" or "false" if their claim is not accepted. These labels are attached to anyone whose reason to seek protection doesn't match the terms of the 1951 convention, such as women fleeing sexual violence, LGBT people persecuted for who they are, children sent away from active war zones by worried parents, or people trafficked into sexual slavery. The 1951 archetype of the political refugee does not sit well with the hard realities of the 21st century.

Yet, at the same time refugee law has proved to be incredibly flexible. Braver judges are willing to expand the law's understanding of how the convention works today, and to insist on the rule of law against the state's attempt to narrow its terms and applications. Sixty years on the convention may not be completely fit for purpose, yet it still holds out hope for the best of the European tradition of universal rights against states which grow increasingly reactionary. Human rights are of greatest importance to those who have been stripped of everything except their bare humanity, and yet still the most vulnerable are the most ignored. We must remain open to that truth.

Source: Guardian
Tags: immigration

  • Post a new comment


    Comments allowed for members only

    Anonymous comments are disabled in this journal

    default userpic

    Your reply will be screened

    Your IP address will be recorded