International Refugee Law: the 1951 Convention Relating to the Status of Refugees

International Refugee Law: the 1951 Convention Relating to the Status of Refugees Interpreter Training

Purpose of the Training The training is designed to provide a basic overview of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees Objectives of the Training • Understand the principles of the 1951 Convention and the 1967 Protocol • Apply the principles of the 1951 Convention and the 1967 Protocol • Identify whether an individual may be recognized as a refugee.

What is the 1951 Convention and the 1967 Protocol? • The 1951 Convention was developed in the aftermath of World War II to address the massive displacement of people, to regulate the legal status of refugees and to protect their basic human rights • Convention originally targeted only Europeans • The United Nations High Commissioner for Refugees (UNHCR) was created and given authorization to enforce the convention for 3 year • Over time, the refugee crisis spread through the world, particularly in Africa and Asia • To remain relevant to displaced persons in Africa and Asia, the UN adopted the Protocol Relating to the Status of Refugees in 1967 • The 1967 Protocol expanded the 1951 Convention’s scope by removing the limitations of date and geographical location in the definition of a refugee

What is the Definition of a Refugee? Article 1 of the Convention sets out the definition of a refugee. The definition is broken into three parts, referred to as: • Inclusion clauses; • Exclusion clauses; and • Cessation clauses Each of these clauses are described in detail in this presentation and should be considered when determining whether an individual may be recognised as a refugee

Inclusion Clauses Definition of a Refugee The term “refugee” is defined in Article 1 of the Convention, as amended by the Protocol: “owing to well-founded fearof 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, unable or, owing to such fear, is unwilling to return to it.” This definition also establishes the “5 Convention Grounds”

Inclusion Clause What do they mean by “Well-Founded Fear”? • Key phrase in the definition • Fear must be both subjectively genuine and objectively reasonable • Subjective Element: an assessment of the individual’s credibility is sometimes needed where the case is not clear enough from the facts on record • Reasonableness of the applicant’s fear of persecution: an understanding of the background conditions of the country as well as the individuals description of the situation are useful

Inclusion Clause Well-Founded Fear cont... The Convention is designed to protect both persons who have actually been persecuted and those who wish to avoid risking persecution in the future Refugees must normally be determined on an individual basis. However “group determination”of refugee status may be made in situations where the entire group has been displaced under the same circumstances and where each member of the group could individually be regarded as a refugee.

Inclusion Clause Definition of “being persecuted” • “being persecuted” is not defined in the Convention and there is no universally accepted definition • we may be able to infer from the Convention that a threat to life or freedom on account of one of the five Convention grounds is always persecution • Serious violations of human rights for one of the five grounds may qualify as “being persecuted” • Unreasonably severe punishment may constitute “being persecuted” although prosecution is distinct from persecution • Discrimination in itself is not enough to satisfy the definition of “being persecuted”. (However, discrimination or a general atmosphere of insecurity in the country of origin, may, when taken together, amount to a low level of discrimination and a mental state that can reasonably justify a claim to well-founded fear of persecution on ‘cumulative grounds’) • Fear of persecution must also be distinguished from difficult economic conditions.

Inclusion Clause Definition of “being persecuted” continued A person claiming they are a refugee, particularly in cases asserting refugee status based upon membership of a particular social group, may fear persecution from non-state actors. There is no requirement in the Convention that the persecutor be a state actor. Nevertheless, there must be tolerance on the part of state actors of the persecution by non-state actors. For example: • If violence against women is prohibited and laws against it enforced by the state, a person will likely not be classified as a refugee on account of her fear of being abused by her husband. Instead, she would be required to rely on the legal system in her home country. • In contrast, a person may be deemed a refugee if domestic abuse is committed with regularity by non-state actors and the local authorities knowingly tolerate or refuse to offer protection.

Inclusion Clause “5 Convention Grounds”: Well-founded fear of persecution on one of these grounds determines refugee status • Race • Religion • Nationality • Membership of a Particular Social Group • Political Opinion Mere membership of a racial, religious, national, social, or political group will not normally be enough to substantiate a claim to refugee status, but there are special circumstances where mere membership can be a sufficient ground to fear persecution.

Inclusion Clause Race Is understood in its widest sense to include: • All kinds of ethnic groups that are referred to as “races” in common usage Religion Persecution relating to religion includes: • The violation of the freedom of a person to change religions; and • The freedom to demonstrate it in private or public, in teaching, practice, worship, and observance. Both freedoms are proclaimed by the Universal Declaration of Human Rights and the Human Rights Covenant.

Inclusion Clause Nationality Persecution for reasons of nationality includes: • Adverse measures directed against a national minority, or in some cases against a majority group that fears persecution by a dominant minority; and • “nationality” is broader than mere "citizenship" as it also refers to membership of an ethnic or linguistic group.

Inclusion Clause Membership of a Particular Social Group Persecution for reasons of membership of a particular social group is undefined in the Convention UNHCR has Guidelines on International Protection – Membership of a Particular Social Group It can include: • A group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights; and • Women, families, tribes and homosexuals This explanation incomplete and should be read in an evolutionary manner, open to the diverse and changing nature of groups in different societies and evolving international human rights norms.

Inclusion Clause Political Opinion Political opinions must not only be different from, and critical of, the politics of his or her government, but must not be tolerated by government authorities Such political opinions must either: • Have come to the attention of such authorities; or • If unknown to the authorities when the person fled, the person must have a well-founded fear of persecution if the authorities were to learn of his or her concealed opinions. Need to distinguish whether persecution is for political opinions or politically motivated acts (certain acts will disqualify applicants from refugee status.)

Inclusion Clause Definition of “outside the country of his nationality” • Requirement that person must be outside the country of his or her nationality • There are no exceptions to this rule because international protection can only be triggered once a person is outside the territorial jurisdiction of his or her country of nationality. • There is a distinction between a refugee under the Convention and an internally displaced person (IDP) who does not qualify for protection under the Convention. • An IDP is a person who has been forced or obliged to flee or to leave his home or place of habitual residence, as a result of, or in order to avoid, the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who has not crossed an internationally recognized state border.

Inclusion Clause cont... A Refugee “sur place” While an applicantmust be outside the country of his or her nationality to be a refugee, this does not mean that he or she must necessarily have left that country illegally or on account of well founded fear; instead, the individual may ask for recognition of refugee status after having been abroad for a period of time. • A person who becomes a refugee due to circumstances arising in his or her country while abroad is called a refugee sur place

Exclusion Clauses Exclusions from the Definition of a Refugee There are three classes of individuals who are excluded from the definition of a refugee even if they meet the definition set out in Article 1 of the Convention: • Bad actors, including war criminals, who are deemed not deserving of protection; • Those who are already protected by the United Nations; and • Those whoare accorded the rights of a national and, therefore, are determined not to be in need of protection The exclusion clauses should generally be applied during the refugee status determination process • They can be applied retroactively if facts emerge that indicate that the exclusion clauses should have been applied initially or if the host country finds the refugee to be a threat to the national security of that nation

Exclusion Clauses 1a. Not Deserving of Protection A perpetrator of bad acts cannot be a refugee even if he meets the definition Article 1F of the Convention states that a person will not be recognized as a refugee if there are "serious reasons" for believing that he has: • Committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; • Committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; or • Been guilty of acts contrary to the purposes and principles of the United Nations.

Exclusion Clauses 1a. Not Deserving of Protection A full criminal trialis not required before a person can be excluded based on Article 1F of the 1951 Convention. All that is required is "serious reason" to believe the crime or act occurred. Nevertheless, in light of the consequences of such a decision, there should be clear evidence sufficient to indict a person for such act before excluding them from refugee status. UNHCR – Guidelines on International Protection– Application of Exclusion Clauses (2003)

Exclusion Clauses 1a. Not Deserving of Protection: War Criminals continued Definitions of crimes against peace, war crimes and crimes against humanity are not universally defined nor are they consistently applied in practice. What is certain is that genocide constitutes a crime against humanity. Terrorism may also constitute a crime against humanity because of the modern view that crimes against humanity can take place during a time of peace if it is part of widespread or systematic attacks against civilians.

Exclusion Clauses 1. Not Deserving of Protection: War Criminals continued The exclusion clauses were designed to deprive perpetrators of heinous acts of refugee protection and to safeguard the receiving country from criminals who present a danger to that country's security. The exclusion clauses ensure that those attempting to flee justice do not avoid prosecution by availing themselves of the Convention.

Exclusion Clauses 1b. Not Deserving of Protection: Non-political Criminals On article of the exclusion clauses permits exclusion of anyone who has committed a serious non-political crime outside the country of refuge prior to his admission to that country. • In determining whether a crime is political, consideration should be placed on its nature and purpose. It is critical to determine whether the motivation was personal gain or a genuine political goal. • UNHCR advocates that the phrase "serious crime" be limited to capital crimes or grave punishable acts. An act of terrorism may qualify as a non-political crime, although it is often committed for political reasons. • It would be contrary to the 1951 Convention to exclude an individual for mere membership in a terrorist group without any indication that the individual has committed a crime.

Exclusion Clauses 1c. Not Deserving of Protection: Acts Contrary to the United Nation’s Purpose This applies to violations of human rights not rising to the level of crimes against humanity but which nevertheless ought to result in exclusion • There should be caution in interpreting Article 1F(c) broadly. There is no agreement on the types of acts this clause covers.

Exclusion Clauses 2/3. Exclusion because already Protected or because not in need Excluded from definition of refugee are all persons who are receiving protection from organs or agencies of the United Nations other than the UNHCR. • For example, for a while, Palestinian refugees in certain areas of the Middle East because were nunder the protection of the United Nations Relief and Works Agency for Palestine Refugees in the Near East ("UNRWA"). As UNRWA operated only in certain areas of the Middle East, a Palestinian refugee who was outside that area would not have been excluded from consideration as a Convention refugee. All persons who have taken up residency in a country where such person is recognized with rights attached to the possession of that nationality are also excluded • Originally, drafted to cover refugees of German extraction who sought refuge in the Federal Republic of Germany after World War II and were given rights similar to those given to German nationals. This clause is rarely used today and should only be applied if such a person is largely assimilated into the country.

Cessation Clauses Refugee status is not meant to be permanent. The Convention shall cease to apply if: • He has voluntarily re-availed himself of the protection of the country of his nationality; or • Having lost his nationality, he has voluntarily reacquired it; or • He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or • He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or • He can no longer continue to refuse to avail himself of the protection of the country of his nationality because the circumstances in connection with which he has been recognized as a refugee have ceased to exist • Being a person who has no nationality he is able to return to the country of his former habitual residence because the circumstances in connection with which he has been recognized as a refugee have ceased to exist The first four cessation clauses reflect voluntary actions by the refugee, whereas, the last two are based on changes in the country from which the refugee fled.

Cessation Clauses Voluntary Cessation Most important elements for determining if a refugee ceases to qualify based on the Cessation clauses are: • Voluntariness • Intent • Effective protection of the refugee if he is returned to his home country. Example: if a refugee obtains a passport from his home nation in order to attend a family reunion, he has not necessarily intentionally reacquired his nationality or re-availed himself of the protection of the country of his nationality. A passport is now a modern necessity and the mere possession by a refugee should not automatically be deemed a reacquisition of nationality. However, UNHCR has stated that, in the absence of some explanation, if a refugee obtains a passport or renews such passport from his home country, a presumption may be made that he intends to avail himself of the protections of his nationality.

Cessation Clauses Voluntary Cessation In circumstances where cessation may be applied, the receiving country should initiate cessation procedures against the refugee. • During such procedures, the receiving country should bear the burden of proof and the refugee should be given an opportunity to explain his intentions. Since the situation in States of origin is frequently volatile, asylum States should factor delay into procedures for invoking the Cessation Clauses and to avoid refugees returning to their country of nationality based on incorrect beliefs that a specific conflict has abated.

Cessation Clauses Cessation Due to External Changes Other articles within the Cessation Clauses permit cessation of refugee status if changes have occurred in the country from which the refugee fled such that the refugee may now return safely: • The change must be of a fundamental character such that there has been a complete political transformation in such country. • Evidence of such changes may include repeals of oppressive laws, democratic elections, declarations of amnesties, the dismantling of former military services, reestablishment of legal protections and annulments of judgments against political opponents. • Fundamental changes must not be fleeting and the UNHCR recommends that a waiting period of at least 12 to 18 months be applied in order to fully assess the developments in an objective manner. • A mere, possibly temporary, change in the facts surrounding the individual refugees fear, which does not entail major changes of circumstances, is therefore insufficient.

Cessation Clauses Cessation Due to External Changes Exceptions: • A person who, or whose family, has suffered under atrocious forms of persecution should not be expected to repatriate. • It may be inappropriate to apply these articles of the Cessation Clauses even though there may have been a change of regime in his country, as this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee.

Questions? • What are issues that are still unclear to you? • Are there any key concepts in Refugee Law that would help you do your job as an interpreter better? • Game!

Interpreter Code of Conduct The Code of Conduct is a set of rules that must be followed when you interpret or translate for AAT • Based on Codes used by many other organisations/governments who use or train interpreters • They are very important to follow – for the client’s case and also so client can properly access services

Remember the “Golden” Rules • Neutrality It is not the role of interpreters to take sides. Remain neutraland never act as an advocate or intermediary for the client or the lawyer • Accuracy Maintain the highest possible level of performance. Your task is to be as accurate as possible. The confidentiality requirementapplies rigidly to all of your interactions at AAT. Never discuss anything from interviews with others. Destroy your interview notes and translation documents as soon as you are finished with them • Confidentiality • Refrain... ..from abusing your power. Being an interpreter, you may be seen as carrying a certain power. Resist any temptations! • Empathy Although you have to remain neutral, we are a humanitarian organisation that requires empathy for all asylum seekers..

Code of Conduct – Accuracy and Completeness cont... • Use “I” instead of “she” or “he” • No side conversations • Ask client to speak in short segments for more accurate translation • Never guess – ask again • Tell us immediately if there is an error • You are not responsible for what a client says e.g. embarrassing or offensive statements • Tell us if you don’t know a word or if there is no translation for a word • Tell us if there is a misunderstanding e.g. cultural explanations

Code of Conduct –Impartiality • You are not on our side or the asylum seeker’s side • Never show whether you disagree or agree with us or the client • Limit your role to interpreting - do not speak for the client • Never tell a client what to do with their legal case – refer questions to us • Must not discuss client’s information with anyone • Must not tell us whether you think the client is telling the truth or not

Code of Conduct –Conflicts of Interest • Tell us before the interview if you know the asylum seeker and how you know them • Ideally: Try to limit communications and relationships with a client outside of the interview • Tell us straight away if there is any conflict of interest

Code of Conduct – Scope of Role • Translation and interpretation only • Do what you are capable of – not more • Tell us if you are not comfortable doing something • Do not explain law or process to asylum seeker if we are not there • Do not give your personal opinions to asylum seekers

What to Expect from us • We will tell you if we know that the case will be emotionally difficult (rape or torture) • You have the right to refuse to interpret for a client • We will be professional • We respect you – the scope of your role and your personal life • We will not ask for your opinion about a case or to do something outside of your role

Interpreter’s Agreement • Each interpreter who works with AAT must sign an agreement • By signing the Interpreter’s Agreement you are agreeing to follow the rules in the Code of Conduct • We understand that this role is challenging and it’s easy to make errors or mistakes and we will try to discuss these with you, if and when they arise. More serious breaches could lead to a formal warming or possible termination of services.

Role Play – Code of Conduct

Thank you! We greatly appreciate your services!!

International Refugee Law: the 1951 Convention Relating to the Status of Refugees