Refugee or Refuge? Let us heed the advice of the ancestors!
Analysis by Balázs Orbán
The ancient and medieval thinking about refugees centered not on the people but on the location. Not on the “refugee” but on the “refuge”. And if we understand this line of thought, we realize that our real moral duty is not to evaluate the individual life situation of people objectively. That we cannot do. On the contrary: the humanitarian duty is to provide a safe place for all those who need it. And these safe places can be anywhere in the world, not necessarily in their own countries.
What comes to our mind when I say this word: “refugee”? Someone who is in need of protection from another state, because of his or her individual life situation. The key phrase is the individual life situation. We want to know the history of the person, and then decide whether or not we can call him or her a refugee. The 1951 Geneva Convention on the rights of refugees describes the individual life situation of refugees as having “a well-founded fear of persecution”, due to various “protected grounds”. Is it evidential to think that way? Yes and no.
It has not always been so! According to the classical definition – solid in ancient and medieval times –, one would be classified a refugee not on the basis of an individual life situation, but on the basis of the place of stay.
The issue was not whether someone deserved protection or did not deserve it.
When taking care of people fleeing to the temple, the priests did not take the individual life history or situation into consideration. A refugee was someone who stayed at a sacred, secure place, enjoying its protection, regardless of the cause of stay.
Our thinking is completely different. As a study underlines, the Geneva Convention, and in fact the overall international refugee regulations have the following most important cornerstones:
(1) The international legal obligations fall squarely on the country of stay;
(2) The international legal obligations came into effect only after the moment the individual has entered the territory of that country, and made a claim for refugee status;
(3) The most important basic principle, or core obligation of the system is the principle of non-refoulement, i.e. not sending back;
(4) The person making a claim for refugee status cannot be penalized for illegal border crossing and stay.
Hence, the logic of the Geneva Convention states that the flight due to a well-founded fear of persecution could be objectively evaluated, and the individual is considered a refugee even before the target country would acknowledge that.
In consequence, the entry of the individual cannot be constrained, the sole role of the state is to subsequently determine whether or not the individual crossing the green border could really be considered a refugee. And those who do not classify as refugees (more exactly, people entitled to international protection) at the end of the process, can be sent home to the source country.
Although this does not follow from the Geneva Convention, based on these principles, the participant states – under UNHCR guidance – have established common refugee definition systems in practice, where the substantive and procedural rules of the states remained different, but the central elements of these systems are the same everywhere after all. Asylum applications are examined individually, on the basis of the likelihood of the applicant’s persecution in case of refoulement. Decisions are based on the credibility of “individual stories” told by the applicants, and on country information provided by certain organizations. For understandable reasons, the burden of proof with regards to the “stories” is light in the proceedings, and the fear of refoulement and persecution in consequence of a possibly wrong decision in the proceeding tips the scale in favor of the applicant. The same is confirmed by a British and a French study, which call attention to inevitable subjectivity of the proceedings.
Clearly, we uphold a system that has the impact that everyone with a will or a need, without available legal migration channels, will be on the move, and upon arriving at the target country, at his or her first interaction with the authorities, try to prove the well-founded fear of persecution individually in the asylum procedure. In case the international protection is successfully acquired, the “move” is consequently justified, and he or she can continue to stay in the target country legally. In case of failure, if his or her application is denied, then the main goal will be to lengthen the illegal stay.
Let’s not be hypocrites!
Our efforts to establish the objectivity of individual persecution are obviously doomed to fail.
My favorite example is the difference between the recognition rate of Afghans (48 percent) and the recognition rate of Syrians (95 percent), as if – in case this was an objective standard – Afghanistan was a much better place than Syria. But evidently, this is not the case, so we cannot consider the recognition rate objective. Another favorite example of mine is this: If the recognition system was truly objective, how come that the statistics of the last quarter show a 12 percent recognition rate in the Czech Republic, while the same is still 60 percent in Austria? This difference cannot be explained by saying that the nationality composition varies country by country.
We also have to realize that the nature of the 21st century migration movements has changed. Researchers of the Maastricht University made a summary of other empirical results available in academic literature, surveyed the motivations, drivers, and choices of people involved in migration in their study, and reached the following conclusions.
In their view, it is clear to see that there are complex factors behind the decisions of people participating in irregular and regular migration, and these factors are not without economic, social and political considerations. Thus, the motivation of people participating in recent migration movements most often include a mixture of reasons meriting entitlement to international protection, along with classic economic and social factors. For this reason, a similar research, ordered by the Australian Government, brings up the issue that the legal distinction between a refugee and an economic migrant has become outdated to the extent that it does not help us understand the motivations behind today’s migration movements and handle the situation at all. As another study observes, a whole culture of migration has developed, driven by an ever growing amount of available information, people trafficking networks, and the development of transnational infrastructures.
We face this situation, which will obviously continue and bring more and more pressure, with an outdated way of thinking, based on the Geneva Convention we are stuck with from the 20th century, still focusing on trying to sort out people based on individual life situations to decide who is a refugee and who is an economic immigrant. As the last two years also indicated, this seems to be a rather hopeless endeavor.
However, all is not lost, because we have the example of our ancestors right before our eyes.
The remnants of that ancient and medieval thinking, which centers not on the people but on the location. Not on the “refugee” but on the “refuge”.
And if we understand this way of thinking, we realize that, our real moral duty is not to evaluate the individual life situation of people objectively.
That we cannot do anyway. On the contrary: the moral, humanitarian duty is to provide a safe place for all those who need it (whether they flee from persecution or are forced to be on the move due to another pressure). And these safe places can be anywhere in the world, not necessarily in their own countries.
To be more precise: they have to be everywhere in the conflict areas of the world, as close to people’s original homes as possible.
This is the real moral duty. This is the real help. This is what our ancestors teach us.
October 9, 2017. 10:22 AM