“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. 

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.  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)  in the case of the refugee, this bond has been severed; persecution and alienage are always physical manifestations of this severed bond; 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. 

The fear element of the definition arguably also has a subjective and an objective aspect. The UNHCR handbook paragraphs 37-50 indicate that both are necessary. The subjective aspect is the refugee’s own experience of fear which can be identified in the tribunal in Asuming v SSHD. 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. Paragraph 40, for example, suggests that the requirement of subjective fear gives scope for taking account of the effect of circumstances on an individual. 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) 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]. 

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] 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.”

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. 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'.

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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. 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 ...

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