Distinguishing Between Asylum Seekers and Economic Migrants: An Analysis of State Practice

Publication Date: 
Tuesday, January 2, 2018
András D Hajdú/IRIN

This guest blog comes from Joysheel Shrivastava. Joysheel is a 4th year B.B.A LLB Student at O. P. Jindal Global Law School in India, where she is pursuing her law degree. She has a keen interest in international law, with a special focus on international humanitarian law and conflict studies.

With armed conflicts in Syria, Iraq, Afghanistan, Ukraine, and elsewhere, the international community is observing the highest levels of displacement since World War II. Today, 65.6 million people are displaced from their homes, meaning that one in every 122 people worldwide is either a refugee, an asylum seeker, or internally displaced person (IDP). Every minute, 24 people are displaced. Moreover, more than half of the total number of displaced people are children under the age of 18 who often flee alone, as ‘unaccompanied’ or ‘separated minors’. The current situation is often referred to as a ‘Refugee Crisis’, which is misleading, as approximately two-thirds (40.3 million) are IDPs, i.e., those who have not yet crossed the borders of their country), but rather are ‘on the run at home’.

Words like ‘refugee’, ‘asylum seeker’, ‘migrant’ are often used synonymously in everyday conversation or in the media, masking important differences in legal status and protection. Given the migration challenges at hand, it is imperative to know the nuances of the applicable terminology, each of which carries with it specific and distinct international obligations. This blog argues that the law has prescribed a very clear difference between asylum seekers and economic migrants; however, States have conflated the meaning of the two, and have used this to avoid their obligations under the 1951 Refugee Convention.

Definitions

When looking at the concepts of migrants and refugees, there are two main relevant bodies of law: one, international refugee law, and the relevant 1951 Refugee Convention; and two, the 1990 United Nations Convention on Migrants’ Rights As will be explained below, the two concepts are different from one another, but have been the subject of confusion owing to the overlap that occurs between them. This has been best explained by Gil Loescher, a refugee law scholar, who states that “in complex situations, it is not always easy to differentiate between migrants and refugees. Armed conflict, poverty, political and economic instability, and environmental disasters all contribute to the formation of mixed flows of people on the move.”

Who is an asylum seeker, and who is a refugee?

As defined in Article 1(1)(a) of the 1951 Convention for Refugee Protection, a refugee is an individual who is fleeing his/her country of origin, owing to a well-founded fear of persecution on grounds of race, nationality, ethnicity, or affiliation to a particular political group. An asylum seeker is a person who has yet to make an application to the host country, or is awaiting a decision on an application or claim that has already been made or submitted. As with refugee law, under human rights law as well, (eg., Article 14 of the Universal Declaration of Human Rights), every individual has a right to ask a State for asylum; however, there exists no duty on States to grant asylum, but only to consider fairly the claim for asylum made before them. While every asylum seeker might not become a refugee (if their claim is denied), every refugee at some point has been an asylum seeker (awaiting a refugee status determination).

What is migration and who is a migrant?

Migration is the process of crossing the boundary of political or administrative units for a certain minimum period of time, usually taken to be at least a year (thereby excluding tourists). One school of thought believes that migration is a term of wide amplitude; that it can be bifurcated into voluntary (such as temporary labor migrants, irregular migrants, skilled/business migrants, or migrants seeking family reunification) and non-voluntary migrations (including asylum seekers, refugees, and even those who are forced to relocate due to developmental or environmental catastrophes). This school of thought believes that a migrant can move across borders to flee persecution, violence or disaster, as well as for personal or professional reasons. On the other hand, another school of thought believes that migration implies a voluntary process, as the people themselves decide where to go, and when. For such scholars, the definition of migrants necessarily excludes asylum seekers, refugees, and other individuals who are compelled to flee their area of habitual residence. Accordingly, the voluntary nature of the migration is key in determining whether an individual is an asylum seeker or refugee, as the case may be, or a migrant.

The term ‘migrant’ can be understood as, “any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country.” Article 2(1) of the 1990 Convention defines a migrant worker as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” The Preamble of the Convention states that said Convention must be read along the lines of the principles which are integral to the International Labour Organisation, namely to secure the rights of those who travel abroad for purposes of employment, economic and financial security.

An individual who moves beyond his/her boundaries seeking better work, or an improved quality of life is commonly termed an ‘economic migrant’; unlike an asylum seeker, they do not cross borders due to a fear of persecution. Economic migrants do not fall under the criteria of refugee status, and therefore, are not afforded international protection. ‘Economic migrant’ is therefore not a legal term. However, owing to its widespread prevalence in practice, it has frequently entered the discourse on the migration and refugee crisis.

The Special Rapporteur of the Commission on Human Rights, in order to overcome the problem mentioned above, has proposed that the following people should be considered as migrants: a) those who are outside the territory of the State of which they are nationals/citizens, are in another State, and do not have the legal protection of the former State; b) persons who do not enjoy general legal recognition offered by the host States to refugees, naturalized persons, or other individuals with similar status; c) persons who do not enjoy general legal recognition arising out of diplomatic agreements, visas or other documents. However, owing to the broadness of this definition, it gives little clarity on which of the two schools of thought on migration is to be followed. Thus, States face troubles in distinguishing between individuals who leave their countries due to environmental degradation, armed conflicts, political persecution, or a combination of these reasons.

The distinction between economic migrants and refuge seekers: an analysis of State practice

While the distinction between the economic migrants and asylum seekers is quite clear in international law, States often conflate the two concepts in practice, arguably to restrict immigration. The term ‘economic migrant’ has frequently been politicized and used by the media and politicians to criticize the claims of ‘self-identifying’ asylum seekers. In many cases, States have made an implicit assumption that asylum seekers are in fact ‘mere’ economic migrants, in an attempt to refuse consideration of their claims for protection. For instance, in 2013, Australian Prime Minister Kevin Rudd claimed, “A whole bunch of people who seek to come to this country are economic migrants, who are seeking to comport themselves as refugees”.

Over the past few years, Europe (and several other regions) experienced a sharp surge in irregular boat migration, spiking in 2015, leading to an influx of over one million people into the continent. This led to a series of discussions in the European Union about how to deal with the humanitarian and border crisis. The Hungarian President, Viktor Orban, while characterizing the current crisis as “a rebellion by illegal migrants”, stated that economic migrants constitute “an overwhelming majority” of those who seek to enter the Eastern European bloc. On similar lines, the Slovak Prime Minister, Robert Fico, stated that 95% of the people arriving in Europe by boats were economic migrants. Notably, the Western bloc (especially Germany and France) was more permissive towards protecting even economic migrants, and criticized the Eastern bloc for not doing the same; however, by 2016, support of even the West for expansive protection waned.

The negative assumptions and demonization of asylum seekers and migrants has been seen in a variety of states. Some politicians claim that asylum-seekers are cheats, con-men, or charlatans, and perceive them as untrustworthy; they believe that migrants and asylum seekers use up resources and take up opportunities at the cost of the nationals of the host country, and that their presence will lead to an increase in crime rates or national security. This has best been exemplified by the rhetoric and policy of the Trump Administration in the U.S, which has rebuffed many of its international obligations by attempting to deny the entry of asylum seekers and other migrants to the U.S. – via a permanent ban on travel from 8 countries (North Korea, Chad, Iran, Libya, Syria, Venezuela, Yemen, and Somalia). Notably, most of these countries are experiencing some form of armed conflict, humanitarian crisis or persecution, meaning that many individuals from these countries would be likely to fulfill the requisite criteria for refugee status. The UK’s Nigel Farage supported this move of the U.S., claiming that most of the people coming from these countries into the Europe or America were economic migrants and not refugees. Another example is Poland, which blatantly refused to take in a single refugee, on the grounds of a supposed threat to national security. As a result of this policy, Poland has accepted fewer asylum seekers per capita than any other European nation, and refused to pay the fine (as imposed by the European Union) of 250,000 Euros for every refugee it turned away.

A State has no legal obligation to take in economic migrant, but only to fairly assess the claim of an asylum seeker. However, policy makers in many States believe that if an individual is travelling without legal documentation, and enters a country illegally, then he/she must be an economic migrant, and must be turned away. States acting on their stigmatized ideas of asylum seekers have misused this caveat in the law and thereby rejected asylum seekers worthy of protection. The truth is that refugees, by definition, flee from their homes in times of desperation and emergency, and often do not have the opportunity to carry with them proper legal documentation which may help their cause. While it is true that any large influx of people is likely to contain within it economic migrants who do not qualify for protection under the 1951 Convention, there would also be a number of people who would. Any form of blanket ban on those arriving in huge numbers, whether through illegal routes or without documentation, fails to fairly account for those who are in dire need of protection. For instance, Italy threatened to block rescue ships arriving at its shores, claiming that the influx of people amounted to an “unsustainable flow”; by taking this position, however, it neglected its obligation to fairly consider the individual claims of those who may need international protection, not to mention put lives at risk at sea.

There is reason to believe that this presumption of States that most arrivals are economic migrants not deserving refugee status is false. For instance, between 2010 and 2015, 92% of the nearly 15,000 individuals who arrived in Australia via boat were found to be eligible for refugee status. Further, the UNHCR estimates that over 50% of those who arrived in Europe by sea were from war-torn Syria alone; while many others were from conflict-ridden regions such as Afghanistan and Iraq, and from lands of oppressive regimes such as Eritrea and Gambia, which would be likely to qualify them for asylum.

Role of humanitarian practitioners in protecting migrants and asylum seekers

Humanitarian practitioners play a key and fundamental role in ensuring that States perform their obligations under international law, and in providing protection to those who require it. They can help facilitate the safe movement of asylum seekers, collaborate with States to facilitate a smoother and quicker screening of claims made, and assist refugees and asylum seekers in camps and other temporary settings while they await a permanent status or return.

Humanitarian practitioners can also engage in advocacy efforts to encourage States to not shut down migrant routes and send back those who arrive at their shores (for instance, as per the EU-Turkey deal, Greece is permitted to send back irregular migrants back to Turkey). Rather, they can work with States to create safer channels for migration and international protection, and policies and services, which are sensitive to the needs, vulnerabilities and potential contributions of asylum seekers and migrants alike.

Conclusion

It is evident that while the difference between the two concepts of asylum seekers and economic migrants is clear on paper, the same clarity does not exist in political realities. States have the inherent discretion to formulate policies regarding economic migrants; on the other hand, the discretion of States with regards to policies on asylum seekers is more restricted. States are required to at least fairly assess the claims for international protection made by asylum seekers before them. If the individual has a valid claim, the State must either act as host State (thereby, granting the individual with refugee status), or provide safe passage to the asylum seeker to another State. Moreover, States must not engage in refoulement, i.e., act of sending the individual back to a country where they fear persecution.

When States function on a number of negative premises concerning asylum seekers, they deny their right to a fair consideration of their claims to international protection, and risk committing refoulement. States must devise methods to be able to successfully distinguish between those who are worthy of international protection, and those who aren’t, and refrain from turning away asylum seekers without making a just and adequate inquiry into their status.

Finally, the distinction between the treatment afforded to economic migrants and asylum seekers leads to the larger question as to whether this differential treatment remains morally justifiable today, given that it is often difficult to disentangle political conflicts from poverty (which is one of the of the main drivers for economic migration). It is generally undisputed that refusing protection to a Syrian, and forcing him/her to return to the conflict is not just legally but morally reprehensible, as serious threat of death is imminent. By the same logic, then, why should it be legally or morally permissible to send an individual back to an impoverished region or natural disaster zone? It may well be time to rethink these one legal distinctions in order to better protect all those who need it most, whether they are driven to migrate by persecution, conflict, poverty, health or disaster.

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